FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended October 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______________ to __________________
Commission File No. 001-08772
HUGHES SUPPLY, INC.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA 59-0559446
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20 North Orange Avenue, Suite 200, Orlando, Florida 32801
- --------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 407/841-4755
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
COMMON STOCK OUTSTANDING AS OF NOVEMBER 29, 1999
------------ -----------------------------------
$1 Par Value 23,522,539
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HUGHES SUPPLY, INC.
FORM 10-Q
INDEX
<TABLE>
<CAPTION>
PAGE NO.
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PART I. FINANCIAL INFORMATION
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of
October 31, 1999 and January 29, 1999 .......................... 3-4
Consolidated Statements of Income for the
Three Months Ended October 31, 1999 and 1998 ................... 5
Consolidated Statements of Income for the
Nine Months Ended October 31, 1999 and 1998 .................... 6
Consolidated Statements of Cash Flows for the
Nine Months Ended October 31, 1999 and 1998..................... 7
Notes to Consolidated Financial Statements ....................... 8-9
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations .................... 10-15
Item 3. Quantitative and Qualitative Disclosures about Market Risk ....... 16
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K ................................. 17-20
Signatures ....................................................... 21
Index of Exhibits Filed with this Report.......................... 22
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</TABLE>
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HUGHES SUPPLY, INC.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
OCTOBER 31, JANUARY 29,
1999 1999
----------- -----------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents $ 8,026 $ 6,010
Accounts receivable, less allowance for losses of $8,989 and $2,809 439,531 341,109
Inventories 476,564 409,734
Deferred income taxes 12,354 8,520
Other current assets 32,436 31,346
----------- -----------
Total current assets 968,911 796,719
Property and Equipment, Net 142,233 127,632
Excess of Cost over Net Assets Acquired 241,495 181,622
Other Assets 21,372 17,540
---------- ----------
$ 1,374,011 $ 1,123,513
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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HUGHES SUPPLY, INC.
CONSOLIDATED BALANCE SHEETS (UNAUDITED) - CONTINUED
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
OCTOBER 31, JANUARY 29,
1999 1999
---------- -----------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt $ 270 $ 39
Accounts payable 244,679 176,234
Accrued compensation and benefits 32,236 25,029
Other current liabilities 45,923 27,982
----------- -----------
Total current liabilities 323,108 229,284
Long-Term Debt 529,350 402,203
Deferred Income Taxes 3,687 4,711
Other Noncurrent Liabilities 5,140 3,359
----------- -----------
Total liabilities 861,285 639,557
----------- -----------
Commitments and Contingencies
Shareholders' Equity:
Preferred stock -- --
Common stock - 24,253,489 and 24,183,834 shares issued 24,253 24,184
Capital in excess of par value 221,274 219,558
Retained earnings 291,029 242,730
Treasury stock, 730,950 and no shares, at cost (16,865) --
Unearned compensation related to outstanding restricted stock (6,965) (2,516)
----------- -----------
Total shareholders' equity 512,726 483,956
----------- -----------
$ 1,374,011 $ 1,123,513
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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HUGHES SUPPLY, INC.
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
THREE MONTHS ENDED OCTOBER 31,
1999 1998
--------- ---------
Net Sales $ 786,379 $ 659,045
Cost of Sales 607,731 512,406
--------- ---------
Gross Profit 178,648 146,639
--------- ---------
Operating Expenses:
Selling, general and administrative 130,056 104,012
Depreciation and amortization 7,549 5,810
Provision for doubtful accounts 785 562
--------- ---------
Total operating expenses 138,390 110,384
--------- ---------
Operating Income 40,258 36,255
--------- ---------
Non-Operating Income and (Expenses):
Interest and other income 2,000 1,518
Interest expense (8,235) (6,341)
--------- ---------
(6,235) (4,823)
--------- ---------
Income Before Income Taxes 34,023 31,432
Income Taxes 13,780 12,282
--------- ---------
Net Income $ 20,243 $ 19,150
========= =========
Earnings Per Share:
Basic $ .87 $ .80
========= =========
Diluted $ .87 $ .79
========= =========
Average Shares Outstanding:
Basic 23,214 23,989
========= =========
Diluted 23,349 24,204
========= =========
Dividends Per Share $ .085 $ .085
========= =========
The accompanying notes are an integral part of these consolidated financial
statements.
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HUGHES SUPPLY, INC.
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
NINE MONTHS ENDED OCTOBER 31,
1999 1998
----------- -----------
Net Sales $ 2,272,563 $ 1,935,626
Cost of Sales 1,761,384 1,510,869
----------- -----------
Gross Profit 511,179 424,757
----------- -----------
Operating Expenses:
Selling, general and administrative 379,213 309,616
Depreciation and amortization 21,500 16,919
Provision for doubtful accounts 3,055 1,888
----------- -----------
Total operating expenses 403,768 328,423
----------- -----------
Operating Income 107,411 96,334
----------- -----------
Non-Operating Income and (Expenses):
Interest and other income 6,728 4,747
Interest expense (22,537) (18,950)
----------- -----------
(15,809) (14,203)
----------- -----------
Income Before Income Taxes 91,602 82,131
Income Taxes 37,099 31,605
----------- -----------
Net Income $ 54,503 $ 50,526
----------- -----------
Earnings Per Share:
Basic $ 2.32 $ 2.12
=========== ===========
Diluted $ 2.31 $ 2.10
=========== ===========
Average Shares Outstanding:
Basic 23,458 23,840
=========== ===========
Diluted 23,606 24,085
=========== ===========
Dividends Per Share $ .255 $ .245
=========== ===========
The accompanying notes are an integral part of these consolidated financial
statements.
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HUGHES SUPPLY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED OCTOBER 31,
1999 1998
--------- ---------
<S> <C> <C>
Cash Flows from Operating Activities:
Net income $ 54,503 $ 50,526
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 21,500 16,919
Provision for doubtful accounts 3,055 1,888
Other, net (728) (249)
Changes in assets and liabilities, net of effects of business acquisitions:
(Increase) in accounts receivable (73,708) (69,053)
(Increase) in inventories (48,407) (18,327)
(Increase) in other current assets (407) (9,589)
(Increase) in other assets (6,236) (3,809)
Increase in accounts payable and accrued liabilities 65,296 17,258
Increase in accrued interest and income taxes 11,585 7,573
Increase in other noncurrent liabilities 43 3,652
(Increase) decrease in net deferred income taxes (4,155) 1,049
--------- ---------
Net cash provided by (used in) operating activities 22,341 (2,162)
--------- ---------
Cash Flows from Investing Activities:
Capital expenditures (23,704) (20,753)
Proceeds from sale of property and equipment 4,049 6,216
Business acquisitions, net of cash (86,501) (9,507)
--------- ---------
Net cash used in investing activities (106,156) (24,044)
--------- ---------
Cash Flows from Financing Activities:
Net borrowings (payments) under short-term debt arrangements 127,072 (5,145)
Principal payments on debt of acquired entities (14,646) (11,345)
Proceeds from issuance of long-term debt -- 50,000
Dividends paid (6,043) (6,783)
Purchase of treasury stock (21,229) --
Other 677 (712)
--------- ---------
Net cash provided by financing activities 85,831 26,015
--------- ---------
Net Increase (Decrease) in Cash and Cash Equivalents 2,016 (191)
Cash and Cash Equivalents, Beginning of Period 6,010 8,204
--------- ---------
Cash and Cash Equivalents, End of Period $ 8,026 $ 8,013
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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HUGHES SUPPLY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED) (DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
1. In the opinion of Hughes Supply, Inc. (the "Company"), the accompanying
unaudited consolidated financial statements contain all adjustments
(consisting only of normal recurring adjustments) necessary to present
fairly the financial position as of October 31, 1999, the results of
operations for the three and nine months ended October 31, 1999 and
1998, and cash flows for the nine months then ended. The results of
operations for the three and nine months ended October 31, 1999 are not
necessarily indicative of the results that may be expected for the full
year.
The fiscal year of the Company is a 52-week period ending on the last
Friday in January. The three and nine months ended October 31, 1999 and
1998 each contained 13 weeks and 39 weeks, respectively.
Basic earnings per share is calculated by dividing net income by the
weighted-average number of shares outstanding. Diluted earnings per
share is calculated by dividing net income by the weighted-average
number of shares outstanding, adjusted for dilutive potential common
shares. In calculating diluted earnings per share, the weighted-average
number of shares outstanding was adjusted to include dilutive potential
common shares of 135,000 and 215,000 for the three months ended October
31, 1999 and 1998, respectively, and 148,000 and 245,000 for the nine
months ended October 31, 1999 and 1998, respectively.
2. During the nine months ended October 31, 1999, the Company acquired six
wholesale distributors of materials to the construction industry that
were accounted for as purchases. Cash payments for these acquisitions
totaled $86.5 million, which resulted in $64.5 million being recorded as
the excess of cost over the fair value of net assets acquired. This
excess of cost over net assets acquired is being amortized by the
straight-line method over 15 to 40 years. These acquisitions,
individually and in the aggregate, did not have a material effect on the
consolidated financial statements of the Company. Results of operations
of these companies from their respective dates of acquisition have been
included in the consolidated financial statements.
3. On March 15, 1999, the Board of Directors authorized the Company to
repurchase up to 2.5 million of its outstanding shares of common stock.
During the nine months ended October 31, 1999, the Company repurchased
921,100 shares of its common stock for a total cost of $21.2 million at
an average purchase price of $23.05 per share.
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HUGHES SUPPLY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
(UNAUDITED) (DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
4. On March 1, 1999, the Company entered into two new lines of credit for
short-term borrowing totaling $25,000. These lines of credit in effect
replace the Company's $25,000 line of credit established on September
30, 1998. There were no amounts outstanding under these lines of credit
as of October 31, 1999.
On September 29, 1999, the Company executed amendments to its January
26, 1999 credit agreement. As a result of these amendments, the
revolving credit facility was increased by $50,000 and the termination
date of the line of credit agreement was extended to July 24, 2000.
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HUGHES SUPPLY, INC.
PART I. FINANCIAL INFORMATION - CONTINUED
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The following is management's discussion and analysis of certain significant
factors which affected the financial condition of the Company as of October 31,
1999, and the results of operations for the three and nine months then ended.
Certain statements set forth in Management's Discussion and Analysis of
Financial Condition and Results of Operations, including but not limited to
certain statements made regarding the Year 2000 Issue (as subsequently defined),
constitute "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended, and are subject to the safe harbor created by such
sections. When used in this report, the words "believe," "anticipate,"
"estimate," "expect," and similar expressions are intended to identify
forward-looking statements. Although the Company believes that the expectations
reflected in such forward-looking statements are reasonable, it can give no
assurance that such expectations will prove to be correct. The Company's actual
results may differ significantly from the results discussed in such
forward-looking statements. When appropriate, certain factors that could cause
results to differ materially from those projected in the forward-looking
statements are enumerated. This Management's Discussion and Analysis of
Financial Condition and Results of Operations should be read in conjunction with
the Company's consolidated financial statements and the notes thereto contained
herein and in the Company's Form 10-K for the fiscal year ended January 29,
1999.
MATERIAL CHANGES IN RESULTS OF OPERATIONS
NET SALES
Net sales were $786 million for the quarter ended October 31, 1999, a 19%
increase over the prior year's third quarter. Net sales for the nine months
ended October 31, 1999 were $2.3 billion, a 17% increase over the first nine
months of the prior fiscal year. The majority of the increase in net sales for
the three and nine month periods was attributable to branches acquired and
opened after January 31, 1998. The remainder of the increase was attributable to
same-store sales, which were up 8% and 6% for the three and nine months ended
October 31, 1999, respectively.
The increase in same-store sales for the nine month period was attributable to
the (i) continued overall strength of the construction market, (ii) increases in
pool and spa product sales due to increased market penetration and (iii) growth
in electric utility product sales resulting from increased spending by utility
companies due to the anticipated deregulation within their industry. These
increases were partially offset by declines in industrial product demand and
deflationary pricing within certain of the Company's commodity-based products.
For the third
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quarter, same-store sales growth improved by five percentage points to 8%, up
from the 3% growth experienced in the Company's second quarter. This increase
was attributable to the (i) continued overall strength of the construction
markets, (ii) the receipt of water and sewer products that were in a shortage of
supply during the second quarter and (iii) improved pricing with respect to
certain of the Company's commodity-based products.
GROSS PROFIT
Gross profit and gross margin for the three and nine months ended October 31,
1999 and 1998 were as follows (dollars in thousands):
<TABLE>
<CAPTION>
1999 1998
------------------ ------------------ VARIANCE
GROSS GROSS GROSS GROSS -----------------
PROFIT MARGIN PROFIT MARGIN AMOUNT %
-------- ------ -------- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
Three months ended $178,648 22.7% $146,639 22.3% $ 32,009 21.8%
Nine months ended $511,179 22.5% $424,757 21.9% $ 86,422 20.3%
</TABLE>
The improvement in gross margins resulted from several factors, including the
Company's expansion of higher-margin product groups through acquisitions,
efficiencies created with central distribution centers and enhanced purchasing
power. The enhanced purchasing power was attributable to increased volume and
concentration of supply sources as part of the Company's preferred vendor
program.
Although the gross margin percentage increased for the nine months ended October
31, 1999, total gross profit dollars for the period was negatively impacted by
declines in pricing of certain commodity-based products. The lower pricing was
the result of deflationary pressure over the past year on the pricing of certain
of the Company's products whose manufacture is reliant on certain commodities,
including stainless steel, nickel alloys, copper, aluminum and plastic. For the
third quarter, the Company experienced a slight overall improvement in pricing
for these products, which resulted in a positive effect on total gross profit
dollars.
OPERATING EXPENSES
Operating expenses for the three and nine months ended October 31, 1999 and 1998
were as follows (dollars in thousands):
<TABLE>
<CAPTION>
1999 1998
------------------- ------------------- VARIANCE
% OF % OF ------------------
AMOUNT NET SALES AMOUNT NET SALES AMOUNT %
-------- --------- -------- --------- -------- -----
<S> <C> <C> <C> <C> <C> <C>
Three months ended $138,390 17.6% $110,384 16.7% $ 28,006 25.4%
Nine months ended $403,768 17.8% $328,423 17.0% $ 75,345 22.9%
</TABLE>
The increases in operating expenses as a percent of net sales for the three and
nine month periods ended October 31, 1999 were primarily due to (i) higher
personnel costs in connection with increased personnel headcount resulting from
higher volume levels of activity, wage increases, and the Company's employee
retention activities and (ii) increased information technology spending and
conversion costs as the Company continues its program of upgrading
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information technology systems. The Company believes its investment in these
initiatives will provide a platform for future growth and enable it to realize
more administrative synergies from past and future acquisitions.
INTEREST EXPENSE
Interest expense was $8.2 million and $22.5 million for the three and nine month
periods ended October 31, 1999, respectively, compared to $6.3 million and $19.0
million for the same periods in the prior year, respectively. The increases were
primarily the result of higher borrowing levels, partially offset by lower
interest rates. The higher borrowing levels were primarily due to the Company's
(i) expansion through business acquisitions, which has been funded by debt
financing, and (ii) share repurchases.
INCOME TAXES
The effective income tax rates for the three and nine month periods ended
October 31, 1999 and 1998 were as follows:
1999 1998
------ ------
Three months ended 40.5% 39.1%
Nine months ended 40.5% 38.5%
The increases in effective rates for the three and nine month periods are
primarily the result of increased levels of non-deductible goodwill associated
with the Company's acquisition program. Another factor in the increase for the
nine month period was the Company's merger with Winn-Lange Electric, Inc.
("Winn-Lange") on June 30, 1998. Prior to the merger, Winn-Lange was a
Subchapter S corporation and therefore, not subject to corporate income tax.
Winn-Lange's Subchapter S corporation status terminated upon the merger with the
Company.
NET INCOME
Net income for the third quarter increased 6% to $20.2 million. Diluted earnings
per share for the quarter was $0.87 compared to $0.79, a 10% increase over the
prior year period.
For the nine months ended October 31, 1999, net income was $54.5 million, an 8%
increase over the prior year's comparable period. Diluted earnings per share for
the nine months ended October 31, 1999 increased 10% to $2.31, up from $2.10 in
the prior year's comparable period.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operations was $22.3 million for the nine months ended
October 31, 1999 compared to $2.2 million of net cash used in operations for the
nine months ended October 31, 1998. This change was primarily the result of an
increase in accounts payable and accrued liabilities resulting from the
Company's cash management efforts.
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The Company's expenditures for property and equipment were $23.7 million for the
nine months ended October 31, 1999 compared to $20.8 million for the nine months
ended October 31, 1998. Of these expenditures, $3.3 million and $4.3 million,
respectively, were related to information technology outlays. Capital
expenditures for property and equipment, excluding amounts for business
acquisitions, are expected to be approximately $30 million for fiscal 2000.
Proceeds from the sale of property and equipment decreased from $6.2 million for
the nine months ended October 31, 1998 to $4.0 million for the nine months ended
October 31, 1999. This decrease was primarily due to the $5.4 million in
proceeds received from the sale and subsequent lease-back of certain computer
hardware during the nine months ended October 31, 1998, as compared to the $2.5
million in proceeds received during the nine months ended October 31, 1999 from
the sale and subsequent lease-back of certain computer hardware.
Cash payments for business acquisitions accounted for as purchases totaled $86.5
million for the nine months ended October 31, 1999 compared to $9.5 million in
the prior year period. These outlays represent six wholesale distributors
acquired and accounted for as purchases in the current nine month period and
three wholesale distributors acquired as such in the prior year period.
Principal reductions on debt of acquired entities were $14.6 million for the
nine months ended October 31, 1999 compared to $11.3 million for the same period
in the prior year. Dividend payments were $6.0 million and $6.8 million during
the nine months ended October 31, 1999 and 1998, respectively. Dividend payments
of $6.8 million during the nine months ended October 31, 1998 included cash
dividends of pooled companies totaling $1.2 million.
On March 15, 1999, the Board of Directors authorized the Company to repurchase
up to 2.5 million of its outstanding shares of common stock. During the nine
months ended October 31, 1999, the Company repurchased 921,100 shares of its
common stock for a total cost of $21.2 million at an average purchase price of
$23.05 per share.
In March 1999, the Company entered into two new lines of credit for short-term
borrowing totaling $25,000. These lines of credit in effect replace the
Company's $25,000 line of credit established on September 30, 1998. There were
no amounts outstanding under these lines of credit as of October 31, 1999.
In September 1999, the Company executed amendments to its January 26, 1999
credit agreement. As a result of these amendments, the revolving credit facility
was increased by $50,000 and the termination date of the line of credit
agreement was extended to July 24, 2000.
As of October 31, 1999, the Company had approximately $74 million of unused
borrowing capacity (subject to borrowing limitations under long-term debt
covenants) to fund ongoing operating requirements and anticipated capital
expenditures. The Company also believes it has sufficient borrowing capacity to
take advantage of growth and business acquisition opportunities and to fund
share repurchases in the near term. The Company expects to continue to finance
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future expansion on a project-by-project basis through additional borrowing or
through the issuance of common stock.
YEAR 2000 ISSUE
Many existing computer programs use only two digits to identify a year in the
date field. As the century date change occurs, these programs may recognize the
year 2000 as 1900, or not at all. If not corrected, many computer systems and
applications could fail or create erroneous results by or at the year 2000 (the
"Year 2000 Issue").
The Company has developed plans to address its possible exposures related to the
impact of the Year 2000 Issue on each of its internal systems and those of third
parties. These plans were implemented using internal personnel.
The Company's internal systems consist of its main operating and accounting
systems, which handle the majority of its business transactions, and other
remote operating systems, which have resulted from the Company's acquisition
program.
All required modifications to the Company's main operating system were completed
in December 1998. This system was thoroughly tested and the modifications were
implemented into the production environment. The Company has installed an
upgraded, vendor-certified year 2000 compliant version of its accounting system.
The Company's own internal verification and validation testing for year 2000
compliance of the accounting system was completed in May 1999. With respect to
these two systems, the Company does not anticipate that the Year 2000 Issue will
materially impact its operations or operating results.
As of November 11, 1999, the Company had 14 remote operating systems in place.
One of these systems utilizes a customized business software application that
the Company has successfully tested for year 2000 compliance. The remaining 13
systems utilize commercially available business software applications that are
certified year 2000 compliant by their vendors.
The Company has successfully completed its own internal verification and
validation testing for year 2000 compliance on nine of the thirteen
vendor-certified year 2000 compliant systems that are expected to be in use on
January 1, 2000. The tested systems support over 98% of the Company's business
volume. Vendor certification has been accepted on the remaining four systems and
no internal verification and validation testing will be performed by the
Company.
With respect to all the business systems and the accounting system, the Company
does not anticipate that the Year 2000 Issue will materially impact its
operations or operating results.
Currently, the Company does not anticipate the addition of any remote operating
systems after November 11, 1999. In the event any additional systems are added
as a result of the Company's acquisition program, they will be assessed,
remediated and tested to the extent that is necessary to ensure year 2000
compliance, or converted to one of the Company's systems that is expected to be
year 2000 compliant.
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Management estimates total pretax costs relating to the Year 2000 Issue to be
approximately $2 million. Approximately 55% of these costs were incurred through
October 31, 1999 and the remaining costs are expected to be incurred through
March 2000. The estimate of $2 million excludes certain costs of converting
remote operating systems to the Company's other year 2000 compliant systems,
because such costs are not expected to be material or the conversion is
scheduled to be performed as part of the Company's normal integration
activities. Approximately $1 million of the estimated total pretax costs of $2
million are personnel and other expenses related to the Company's Year 2000
Project Team, which is expected to remain intact through the turn of the
century. The remaining estimated cost of $1 million is expected to be incurred
primarily in connection with the remediation and testing of the Company's remote
operating systems.
The Company has contacted its major suppliers, customers and service providers
regarding their Year 2000 Issues to assess the risk of these entities not being
able to continue to provide goods and services to the Company. The Company will
continue to evaluate the year 2000 readiness of its major suppliers, customers
and service providers.
The Company believes its planning efforts are adequate to address the Year 2000
Issue. There are, however, certain risks that the Company cannot directly
control, including the readiness of its major suppliers, customers and service
providers. Failure on the part of any of these entities to timely remediate
their Year 2000 Issues could result in disruptions in the Company's supply of
materials, disruptions in its customers' ability to conduct business and
interruptions to the Company's daily operations. There can be no guarantee that
the systems of other third parties on which the Company's systems and operations
rely will be corrected on a timely basis and will not have a material adverse
effect on the Company.
As the Company receives and evaluates additional information provided by third
parties regarding their year 2000 readiness, the Company intends to develop
contingency plans, as deemed necessary, to safeguard its ongoing operations.
Such contingency plans may include identifying alternative suppliers or service
providers, stockpiling certain inventories if alternative sources of supply are
not available, evaluating the impact and creditworthiness of non-compliant
customers and the addition of borrowing capacity if deemed necessary to finance
higher levels of inventory or working capital on an interim basis.
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HUGHES SUPPLY, INC.
PART I. FINANCIAL INFORMATION - CONTINUED
Item 3. Quantitative and Qualitative Disclosures about Market Risk
The Company is exposed to market risk from changes in (i) interest rates on
outstanding variable-rate debt and (ii) the prices of certain of the Company's
products whose manufacture is reliant on certain commodities.
INTEREST RATE RISK
At October 31, 1999, the Company had approximately $301.3 million of outstanding
variable-rate debt. Based upon an assumed 10% increase or decrease in interest
rates from their October 31, 1999 levels, the market risk with respect to the
Company's variable-rate debt would not be material. The Company manages its
interest rate risk by maintaining a combination of fixed-rate and variable-rate
debt.
COMMODITY PRICE RISK
The Company is affected by price fluctuations in stainless steel, nickel alloys,
copper, aluminum, plastic and other commodities. Such commodity price
fluctuations have from time to time created cyclicality in the financial
performance of the Company and could continue to do so in the future. The
Company seeks to minimize the effects of commodity price fluctuations through
(i) economies of purchasing and inventory management resulting in cost
reductions, maintenance of minimum economic reorder points, and productivity
improvements and (ii) price increases to maintain reasonable profit margins.
Additional information with respect to the Company's commodity price risk is set
forth under the caption "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in Part I, Item 2 of this report.
Page 16
<PAGE>
HUGHES SUPPLY, INC.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) EXHIBITS FILED
(2) Plan of acquisition, reorganization, arrangement, liquidation or
succession. Not applicable.
(3) Articles of incorporation and by-laws.
3.1 Restated Articles of Incorporation, as amended,
incorporated by reference to Exhibit 3.1 to Form 10-Q for
the quarter ended April 30, 1997 (Commission File No. 001-08772).
3.2 Composite By-Laws, as amended.
3.3 Form of Articles of Amendment to Restated Articles of
Incorporation of the Company, incorporated by reference to
Exhibit 99.2 to Form 8-A dated May 22, 1998 (Commission File No.
001-08772).
(4) Instruments defining the rights of security holders, including
indentures.
4.1 Form of Common Stock Certificate representing shares of the
Registrant's common stock, $1.00 par value, incorporated by
reference to Exhibit 4.1 to Form 10-Q for the quarter ended July
31, 1997 (Commission File No. 001-08772).
4.2 Rights Agreement dated as of May 20, 1998 between Hughes Supply,
Inc. and American Stock Transfer & Trust Company, incorporated by
reference to Exhibit 99.2 to Form 8-A dated May 22, 1998
(Commission File No. 001-08772).
(10) Material contracts.
10.1 Lease Agreements with Hughes, Inc.
(a) Orlando Trucking, Garage and Maintenance Operations dated
December 1, 1971, incorporated by reference to Exhibit
13(n) to Registration No. 2-43900 (Commission File No.
0-5235). Letter dated April 15, 1992 extending lease from
month to month, filed as Exhibit 10.1(a) to Form 10-K for
the fiscal year ended January 31, 1992 (Commission File
No. 0-5235).
Page 17
<PAGE>
(b) Leases effective March 31, 1988, incorporated by reference
to Exhibit 10.1(c) to Form 10-K for the fiscal year ended
January 27, 1989 (Commission File No. 0-5235).
SUB-ITEM PROPERTY
-------- --------
(1) Clearwater
(2) Daytona Beach
(3) Fort Pierce
(4) Lakeland
(6) Leesburg
(7) Orlando Electrical Operation
(8) Orlando Plumbing Operation
(9) Orlando Utility Warehouse
(11) Sarasota
(12) Venice
(13) Winter Haven
(c) Lease amendment letter between Hughes, Inc. and the
Registrant, dated December 1, 1986, amending Orlando Truck
Operations Center and Maintenance Garage lease,
incorporated by reference to Exhibit 10.1(i) to Form 10-K
for the fiscal year ended January 30, 1987 (Commission
File No. 0-5235).
(d) Lease agreement dated June 1, 1987, between Hughes, Inc.
and the Registrant, for additional Sarasota property,
incorporated by reference to Exhibit 10.1(j) to Form 10-K
for the fiscal year ended January 29, 1988 (Commission
File No. 0-5235).
(e) Lease dated March 11, 1992, incorporated by reference to
Exhibit 10.1(e) to Form 10-K for the fiscal year ended
January 31, 1992 (Commission File No. 0-5235).
SUB-ITEM PROPERTY
-------- --------
(2) Gainesville Electrical Operation
(f) Amendments to leases between Hughes, Inc. and the
Registrant, dated April 1, 1998, amending the leases for
the thirteen properties listed in Exhibit 10.1(b), (d) and
(e), incorporated by reference to Exhibit 10.1 to Form
10-K for the fiscal year ended January 30, 1998
(Commission File No. 001-08772).
10.2 Hughes Supply, Inc. 1988 Stock Option Plan as amended March 12,
1996 incorporated by reference to Exhibit 10.2 to Form 10-K for
the fiscal year ended January 26, 1996 (Commission File No.
001-08772).
Page 18
<PAGE>
10.3 Form of Supplemental Executive Retirement Plan Agreement entered
into between the Registrant and eight of its executive officers,
incorporated by reference to Exhibit 10.6 to Form 10-K for the
fiscal year ended January 30, 1987 (Commission File No. 0-5235).
10.4 Directors' Stock Option Plan, as amended.
10.5 Written description of senior executives' long-term incentive
bonus plan for fiscal year 1996 incorporated by reference to the
description of the bonus plan set forth under the caption
"Approval of the Stock Award Provisions of the Senior Executives'
Long-Term Incentive Bonus Plan for Fiscal Year 1996" on pages 26
and 27 of the Registrant's Proxy Statement for the Annual Meeting
of Shareholders to be held May 24, 1994 (Commission File No.
001-08772).
10.6 Hughes Supply, Inc. Amended Senior Executives' Long-Term
Incentive Bonus Plan, adopted January 25, 1996, incorporated by
reference to Exhibit 10.9 to Form 10-K for the fiscal year ended
January 26, 1996 (Commission File No. 001-08772).
10.7 Note Purchase Agreement, dated as of August 28, 1997, by and
among the Company and certain purchasers identified in Schedule A
of the Note Purchase Agreement, incorporated by reference to
Exhibit 10.15 to Form 10-Q for the quarter ended July 31, 1997
(Commission File No. 001-08772).
10.8 Hughes Supply, Inc. 1997 Executive Stock Plan (the "Plan")
incorporated by reference to the description of the Plan set
forth under Exhibit A of the Registrant's Proxy Statement for the
Annual Meeting of Shareholders to be held May 20, 1997
(Commission File No. 001-08772).
10.9 Note Purchase Agreement, dated as of May 29, 1996, by and among
the Company and certain purchasers identified in Schedule A of
the Note Purchase Agreement, incorporated by reference to Exhibit
10.13 to Form 10-K for the fiscal year ended January 30, 1998
(Commission File No. 001-08772).
10.10 Note Purchase Agreement, dated as of May 5, 1998, by and among
the Company and certain purchasers identified in Schedule A of
the Note Purchase Agreement, incorporated by reference to Exhibit
10.11 to Form 10-Q for the quarter ended April 30, 1998
(Commission File No. 001-08772).
Page 19
<PAGE>
10.11 Revolving Credit Agreement, dated as of January 26, 1999 and
amended on September 29, 1999, by and among the Company and a
group of banks. The Revolving Credit Agreement contains a table
of contents identifying the contents of Schedules and Exhibits,
all of which have been omitted. The Company agrees to furnish a
supplemental copy of any omitted Schedule or Exhibit to the
Commission upon request.
10.12 Line of Credit Agreement, dated as of January 26, 1999 and
amended on September 29, 1999, by and among the Company and a
group of banks. The Line of Credit Agreement contains a table of
contents identifying the contents of Schedules and Exhibits, all
of which have been omitted. The Company agrees to furnish a
supplemental copy of any omitted Schedule or Exhibit to the
Commission upon request.
(11) Statement re computation of per share earnings. Not applicable.
(15) Letter re unaudited interim financial information. Not
applicable.
(18) Letter re change in accounting principles. Not applicable.
(19) Report furnished to security holders. Not applicable.
(22) Published report regarding matters submitted to vote of security
holders. Not applicable.
(23) Consents of experts and counsel. Not applicable.
(24) Power of attorney. Not applicable.
(27) Financial data schedule.
27.1 Financial Data Schedule (filed electronically only).
(99) Additional exhibits. Not applicable.
(b) REPORTS ON FORM 8-K
-------------------
There were no reports on Form 8-K filed during the quarter ended
October 31, 1999.
Page 20
<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.
HUGHES SUPPLY, INC.
Date: December 13, 1999 By: /S/ DAVID H. HUGHES
-----------------------
David H. Hughes, Chairman of
the Board and Chief Executive
Officer
Date: December 13, 1999 By: /S/ J. STEPHEN ZEPF
-----------------------
J. Stephen Zepf, Treasurer,
Chief Financial Officer and
Chief Accounting Officer
Page 21
<PAGE>
INDEX OF EXHIBITS FILED WITH THIS REPORT
----------------------------------------
3.2 Composite By-Laws, as amended.
10.4 Directors' Stock Option Plan, as amended.
10.11 Revolving Credit Agreement, dated as of January 26, 1999 and amended
on September 29, 1999, by and among the Company and a group of banks.
The Revolving Credit Agreement contains a table of contents
identifying the contents of Schedules and Exhibits, all of which have
been omitted. The Company agrees to furnish a supplemental copy of any
omitted Schedule or Exhibit to the Commission upon request.
10.12 Line of Credit Agreement, dated as of January 26, 1999 and amended on
September 29, 1999, by and among the Company and a group of banks. The
Line of Credit Agreement contains a table of contents identifying the
contents of Schedules and Exhibits, all of which have been omitted.
The Company agrees to furnish a supplemental copy of any omitted
Schedule or Exhibit to the Commission upon request.
27.1 Financial Data Schedule (filed electronically only).
Page 22
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
-OF-
HUGHES SUPPLY, INC.
(AS AMENDED AND RESTATED ON NOVEMBER 19, 1999)
ARTICLE I
STOCK
1. CERTIFICATES OF STOCK shall be issued in numerical order from the
stock certificate book, and be signed by the President or the Vice-president,
and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, and sealed with the seal of the Corporation. The seal may be
facsimile, engraved or printed. If such certificate is signed by (a) a transfer
agent or an assistant transfer agent, other than the Corporation itself, or by
(b) a transfer clerk acting on behalf of the Corporation and a registrar, the
signature of any of those officers named herein may be facsimile. In case any
officer who signed, or whose facsimile signature has been used on any
certificate shall cease to be such officer for any reason before the certificate
has been delivered by the Corporation, such certificate may nevertheless be
adopted by the Corporation and issued and delivered as though the person who
signed it or whose facsimile signature has been used thereon had not ceased to
be such officer. Subscription warrants, scrip for fractional shares and similar
certificates may be issued from time to time and be signed by the President, a
Vice President or the Treasurer, and, where otherwise required, sealed with the
seal of the Corporation. The signature of the signing officer, and the seal may
be facsimile, engraved or printed.
2. TRANSFER OF STOCK shall be made only on the books of the
Corporation, in person or by attorney, upon surrender of the certificate
evidencing the stock sought to be transferred, properly endorsed or assigned;
the certificate so surrendered shall be cancelled as and when a new certificate
or certificates are issued.
3. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
4. RECORD DATE, SUBSEQUENT TRANSFERS. The Board of Directors shall have
power to fix in advance a date, not exceeding seventy days preceding the date of
any meeting of stockholders or the date for the payment of any dividends or the
date for the allotment of any rights or the date when any change or conversion
or exchange of stock shall go into effect or a date in connection with the
obtaining of any consent of stockholders for any purpose, as a record date for
the determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof or to receive payment of any such
dividend or to any such allotment of rights or to exercise rights in respect of
any such change, conversion or exchange of stock or to give any such consent,
and, in such case, such stockholders, and only such stockholders, as shall be
stockholders on the record date so fixed shall be entitled to notice of, and
vote at, such meeting and any adjournment thereof or to receive payment of any
such dividend or to receive such allotment of rights or to exercise such rights
or to give such consent, as the case may be,
<PAGE>
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date, fixed as aforesaid.
ARTICLE II
STOCKHOLDERS
1. THE ANNUAL MEETING of the stockholders shall be held at ten o'clock
on the third Tuesday of May of each year, if not a legal holiday, and if a legal
holiday, then the day following, commencing with the year A.D. 2000, or at such
other date and time as may be designated by the Board of Directors from time to
time. Each Annual Meeting shall be held at the principal office of the
Corporation unless some other place in or out of the State of Florida is
designated by the Board of Directors three weeks or more before the day of such
Annual Meeting.
2. SPECIAL MEETINGS of the stockholders may be called at any time by
resolution of the Board of Directors or by the President and may be called at
any time by a request in writing submitted by the holder or holders of at least
80% of the outstanding shares of stock entitled to vote. Such request must state
the purpose of the meeting.
3. WRITTEN CONSENTS. The stockholders of the Corporation shall not be
permitted to take action by means of written consents.
4. NOTICE OF STOCKHOLDERS' MEETINGS of the Corporation shall be given
by mailing a written notice of such meeting, signed by the President, or a Vice
President or the Secretary or an Assistant Secretary, of the Corporation, to
each stockholder of record entitled to vote at such meeting at his address as it
appears on the records of the Corporation not less than ten (10) nor more than
sixty (60) days before the date set for such meeting. The notice shall state the
purpose of the meeting and the time and place it is to be held. Notice mailed to
a stockholder in accordance with the provisions of this By-Law shall be deemed
sufficient for said meeting and if any stockholder shall transfer any of his
stock after notice, it shall not be necessary to notify the transferee. Any
meeting of stockholders may be held either within or without the State of
Florida. Any stockholder may waive notice of any meeting either before, or at,
or after, the meeting. When stockholders who hold four-fifths (4/5) of the
voting stock of the Corporation having the right and entitled to vote at any
meeting, shall be present in person, or by proxy, at any meeting, however called
or notified, and shall sign a written consent thereto on the record of the
meeting, the acts of such meeting shall be as valid as if legally called and
notified.
5. A QUORUM at any meeting of the stockholders shall consist of a
majority of the stock of the Corporation entitled to vote thereat represented in
person or by proxy, and a majority of such quorum shall decide any question that
may come before the meeting; provided, however, that:
(i) No plan of consolidation or merger under which the
Corporation is not the surviving constituent corporation shall be deemed
approved by the stockholders unless such plan of consolidation or merger shall
be approved by the affirmative vote of two-thirds of the total number of shares
of stock outstanding and entitled to vote; and
(ii) No amendment to the Articles of Incorporation may amend
or delete the requirement that two-thirds of the total number of shares of stock
outstanding and entitled to vote approve any plan of consolidation or merger
under which the Corporation is not the surviving constituent corporation, unless
at a meeting duly called two-thirds of the total number of shares of stock
outstanding and entitled to vote shall approve such amendment or deletion of
such requirement; and
2
<PAGE>
(iii) In addition to any affirmative vote required by law or
the Articles of Incorporation, and except as expressly provided in Section B of
Article XIII of the Articles of Incorporation ("Article XIII"), the affirmative
vote of, the holders of two-thirds of the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
shall be required for the approval or authorization of any Business Combination
(as defined in Article XIII). The provisions of Section A of Article XIII shall
not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law or
any other Article of the Articles of Incorporation, if the Business Combination
shall have been approved by a majority of the directors who are Disinterested
Directors (as defined in Article XIII), or if all of the conditions of Section B
of Article XIII are met; and
(iv) Notwithstanding any other provision of the By-Laws of the
Corporation or applicable law, the affirmative vote of two-thirds of the votes
of the then outstanding Voting Stock (as defined in the Articles of
Incorporation), voting together as a single class, shall be required (1) to
amend, modify or repeal Article XIII of the Articles of Incorporation ("Article
XIII"), (2) adopt any provision of the Articles of Incorporation or By-Laws
which is inconsistent with Article XIII, or (3) prior to the fixing by the Board
of Directors of any right or preference of any series of Preferred Stock which
is inconsistent with the provisions of Article XIII; and
(v) In the event the number of directors of the Corporation
shall be fixed by the stockholders in accordance with Section A of Article VII
of the Articles of Incorporation, such number shall be the number fixed by the
holders of record of at least 80% of the outstanding shares of stock entitled to
vote; and
(vi) Notwithstanding any other provision of the By-Laws of the
Corporation or applicable law, the affirmative vote of the holders of record of
at least 80% of the outstanding shares of stock entitled to vote shall be
required to remove directors of the Corporation without cause; and
(vii) Notwithstanding any other provision of the By-Laws of
the Corporation or applicable law, the affirmative vote of the holders of record
of at least 80% of the outstanding shares of stock entitled to vote shall be
required (1) to amend, modify or repeal Article VII or Article XIV of the
Articles of Incorporation ("Article VII or XIV"), (2) adopt any provision of the
Articles of Incorporation or the By-Laws of the Corporation which is
inconsistent with Article VII or XIV, or (3) prior to the fixing by the Board of
Directors of any right or preference of any series of Preferred Stock which is
inconsistent with the provisions of Article XII or XIV.
In the absence of a quorum, a majority of the shares present in person
or by proxy and entitled to vote may adjourn any meeting from time to time until
a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally called unless otherwise provided by
statute, and no notice of an adjourned meeting need be given.
6. JUDGES. At every meeting of stockholders the vote shall be conducted
by one or more judges appointed for that purpose by the Board of Directors; and
all questions respecting the qualification of voters, the validity of the
proxies and the acceptance and rejection of votes shall be decided by such
judges. Before acting at any meeting, the judges shall be sworn faithfully to
execute their duties, with strict impartiality and according to the best of
their ability. If no judges appointed by the Board of Directors to act at any
meeting shall be present and willing to act at such meeting, the person
presiding at the meeting may appoint one or more judges so to act. The judges
shall ascertain the number of shares outstanding and the voting power of each,
determine the shares represented at the meeting and the validity of proxies and
ballots, count all votes and ballots, determine and retain for a reasonable
period a record of the disposition of any challenges made to any determination
by the judges and certify their determination
3
<PAGE>
of the number of shares represented at the meeting and their count of all votes
and ballots. The judges may appoint or retain other persons to assist them in
the performance of their duties. The time of the opening and closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxy or vote, nor any revocation
thereof or change thereto, shall be accepted by the judges after the closing of
the polls. In determining the validity and counting of proxies and ballots, the
judges shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by a stockholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the Corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of record. If the
judges consider other reliable information for such purpose, they shall, at the
time they make their certification, specify the precise information considered
by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the judges' belief that such
information is accurate and reliable.
7. ADVANCE NOTICE OF STOCKHOLDER PROPOSALS. At any annual or special
meeting of stockholders, proposals by stockholders shall be considered only if
advance notice thereof has been timely given as provided herein and such
proposals are otherwise proper for consideration under applicable law and the
Articles of Incorporation and By-Laws of the Corporation. Notice of any proposal
to be presented by any stockholder at any annual meeting of stockholders shall
be delivered to the President or the Secretary of the Corporation at its
principal executive office not less than 120 days prior to the first anniversary
of the preceding year's annual meeting; in the event of a special meeting or if
the date of the annual meeting is changed by more than thirty days from the
anniversary date, such advance notice shall be given not more than ten days
after such date is first so announced or disclosed. Any stockholder who gives
notice of any such proposal shall deliver therewith a brief written description
of the proposal desired to be brought before the meeting and the reasons for
conducting such business at the meeting, the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business and any
other stockholder known by such stockholder to be supporting such proposal, the
number and class of all shares of each class of stock of the Corporation
beneficially owned by such stockholder on the date of such notice and by any
other stockholders known by such stockholder to be supporting such proposal on
such date, and any material interest of such stockholder in the proposal or
material relationship of such stockholder to the proposal. The person presiding
at the meeting, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall determine whether such notice
has been duly given and shall direct that proposals not be considered if such
notice has not been given.
ARTICLE III
DIRECTORS
1. POWERS. The business and property of the Corporation shall be
managed by a Board of Directors, all of whom shall be 18 years of age or older,
and such Board of Directors shall have full control over the affairs of the
Corporation and shall be authorized to exercise all of its corporate powers
unless otherwise provided in these By-Laws.
2. NUMBER AND TERM OF DIRECTORS. The Board of Directors shall consist
of three or more directors, the exact number to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
holders of record of at least 80% of the outstanding shares of stock
4
<PAGE>
entitled to vote at any meeting thereof. The directors shall be classified with
respect to the time for which they shall severally hold office by dividing them
into three classes, each consisting of as near one-third of the whole number of
Directors as practicable, and all directors of the Corporation shall hold office
until their successors are elected and qualified. The first such classification
shall be made at the Annual Meeting of the Stockholders to be held in the year
1975. At that Annual Meeting, the directors shall be classified for staggered
terms of 1, 2 and 3 years, respectively, and at each successive Annual Meeting
the successors to the class of directors whose terms expire that year shall be
elected to hold office for the term of 3 years, so that the term of office of
one class of directors shall expire in each year. Any vacancy which shall occur
in a class of directors prior to the expiration of the term of such class may be
filled by the Board of Directors. A director elected to fill a vacancy shall
hold office only until the next election of directors by the stockholders. An
increase in the number of directors shall be deemed to create vacancies for the
purpose of this section.
3. ELECTION OF DIRECTORS. At the Annual Meeting of Stockholders,
directors shall be elected by a plurality of the votes cast at such election. At
the election of directors, each stockholder shall have the right to vote the
number of shares owned by him for as many persons as there are directors to be
elected. There shall be no cumulative voting. Nominations for election of the
Board of Directors may be made by the Board of Directors, or by any stockholder
of any outstanding class of capital stock of the Corporation entitled to vote
for the election of directors. Nominations, other than those made by the
existing Board of Directors, for an annual meeting shall be made in writing and
shall be delivered to the President or the Secretary of the Corporation not less
than 120 days prior to the first anniversary of the preceding year's annual
meeting; in the event of a special meeting or if the date of the annual meeting
is changed by more than thirty days from the anniversary date, such advance
notice shall be given not more than ten days after such date is first so
announced or disclosed. Such nomination and notification shall contain the
following information to the extent known to the notifying stockholder:
(i) The names and addresses of the proposed nominee or
nominees;
(ii) The number and class of all shares of each class of stock
of the Corporation beneficially owned by such nominee or nominees;
(iii) The information regarding such nominee or nominees
required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by
the Securities and Exchange Commission (or the corresponding provisions of any
regulation subsequently adopted by the Securities and Exchange Commission
applicable to the Corporation);
(iv) Each nominee's signed consent to serve as a Director of
the Corporation if elected;
(v) The total number of shares that to the knowledge of the
notifying or nominating stockholders will be voted for each of the proposed
nominees;
(vi) The name and residence address of each notifying or
nominating stockholder; and
(vii) The number of shares owned by the notifying or
nominating stockholder.
Nominations not made in accordance herewith may, in his discretion, be
disregarded by the chairman of the meeting, and upon his instructions, the
judges of election may disregard all votes cast for each such nomination.
5
<PAGE>
4. PLACE OF MEETING. Meetings of the Board of Directors or of any
committee thereof may be held either within or without the State of Florida.
5. ORGANIZATION MEETINGS of the Board of Directors shall be held as
soon as practicable each year after the annual election of directors for the
purpose of organization, election of officers and the transaction of other
business. No notice of such meeting shall be required. Such organization meeting
may, however, be held at any other time or place which shall be specified in a
notice given, as hereinafter provided, for special meetings of the Board, or in
a consent and waiver of notice thereof signed by all of the directors.
6. REGULAR MEETINGS. The Board of Directors may from time to time, by
resolution, appoint the time and place for holding regular meetings of the
Board, if by it deemed advisable, and such regular meetings shall thereupon be
held at the time and place so appointed, without the giving of any notice with
regard thereto. In case the day appointed for a regular meeting shall fall upon
a Saturday or legal holiday in the State of Florida, such meeting shall be held
on the next succeeding day not Saturday or legal holiday in Florida, at the
regularly appointed hour. Except as otherwise provided in the By-Laws, any and
all business may be transacted at any regular meeting.
7. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held whenever called by the Chairman, the President, or by any two of the
directors. Notice to a director of any such meeting may be given in writing, by
mailing the same to the residence or place of business of the director as shown
on the books of the Corporation not later than two days before the day on which
the meeting is to be held, or may be given by sending the same to him at such
place by telegraph or by delivering the same to him personally or leaving the
same for him at his place of business or by giving the same to him personally or
by telephone, not later than the day before such day of meeting. Notice of any
meeting of the Board need not, however, be given to any director, if waived by
him in writing (including telegram, cablegram or radiogram) or if he shall be
present at the meeting; and any meeting of the Board of Directors shall be a
legal meeting without any notice thereof having been given, if all members shall
be present thereat. Except as otherwise provided in the By-Laws or as may be
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
8. QUORUM AND MANNER OF ACTING. Except as otherwise provided in the
By-Laws, a majority of the directors in office at the time of any meeting of the
Board of Directors, but not less than two directors, shall constitute a quorum
for the transaction of business; and, except as otherwise required by statute or
by the Articles of Incorporation or any amendment thereto, or by the By-Laws,
the act of a majority of the directors present at any such meeting at which a
quorum is present shall be the act of the Board of Directors. In the absence of
a quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present. No notice of any adjourned meeting need be
given.
9. BUSINESS COMBINATION. The Board of Directors acting by a majority of
the directors who are Disinterested Directors (as defined in Article XIII of the
Articles of Incorporation) shall have the power and duty to determine for the
purpose of Article XIII on the basis of information known to them after
reasonable inquiry, all facts necessary to determine the applicability of the
various provisions of Article XIII, including (1) whether a person is an
Interested Shareholder (as defined in Article XIII), (2) the number of shares of
Voting Stock (as defined in Article XIII) beneficially owned by any person, (3)
whether a person is an Affiliate or Associate (as defined in, Article XIII) of
another, and (4) whether the requirements of Section B of Article XIII have been
met with respect to any Business Combination (as defined in Article XIII) , and
the good faith determination of a majority of the directors who are
Disinterested Directors shall be conclusive and binding for all purposes of
Article XIII.
6
<PAGE>
10. DIRECTORS' COMPENSATION. The Board of Directors shall have
authority to determine from time to time the amount, if any, of compensation and
expenses which shall be paid to its members for attendance at meetings of the
Board or of any committee of the Board. The Board of Directors shall also have
power, in its discretion, to provide for and to pay to directors rendering
services to the Corporation not ordinarily rendered by directors, as such,
special compensation appropriate to the value of such services, as determined by
the Board from time to time.
11. RESIGNATIONS. Any director of the Corporation may resign at any
time either by oral tender of resignation at any meeting of the Board or by
giving written notice thereof to the Chairman, the President, or the Secretary.
Such resignation shall take effect at the time specified therefor; and, unless
otherwise specified with respect thereto, the acceptance of such resignation
shall not be necessary to make it effective.
12. REMOVAL OF DIRECTORS. Any director may be removed at any time for
cause by the affirmative vote of the holders of record of a majority of the
outstanding shares of stock entitled to vote, or without cause by the
affirmative vote of the holders of record of at least 80% of the outstanding
shares of stock entitled to vote, at a meeting of the stockholders called for
the purpose; and the vacancy in the Board caused by such removal may be filled
by the stockholders or, if the stockholders shall have failed to do so, such
vacancy may be filled by the Board of Directors at any meeting by the
affirmative vote of a majority of the remaining directors.
13. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE PERMITTED. Unless
otherwise restricted by the Articles of Incorporation or these By-Laws, members
of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors or of such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
By-Law shall constitute presence in person at such meeting.
14. ACTION BY DIRECTORS WITHOUT A MEETING. Unless otherwise restricted
by the Articles of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of
Directors or of such committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
ARTICLE IV
OFFICERS, EMPLOYEES AND AGENTS
1. OFFICERS, TERM OF OFFICE, VACANCIES, REMOVAL. The Board of Directors
shall elect a President, one or more Vice Presidents of such precedence, rank or
additional designation, if any, among the same as the Board of Directors may
provide, a Secretary and a Treasurer, such election to take place, if
practicable, at the Organization Meeting of the Board of Directors each year,
and such officers shall hold office, subject to removal by the Board, until the
Organization Meeting of the Board of Directors in the next subsequent year and
until their respective successors are elected and qualified. In addition, the
Board of Directors in its discretion may provide for and elect a Chairman of the
Board of Directors, who may also hold the office of President, a Vice Chairman
of the Board, who may also hold the office of Vice President or President and a
Chief Financial Officer. The Board of Directors may appoint a successor to fill
a vacancy in any office for the remainder of the term. The Board of Directors or
the Executive Committee may, from time to time, appoint any one or more
Assistant Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, and such other officers and agents as may appear to be
necessary or advisable in the conduct or affairs of the Corporation; and all
such officers shall
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hold office during the pleasure of the Board. Any officers and agents may be
removed at any time, for or without cause, by the Board of Directors, or, in
case any such officer or agent may be appointed pursuant to these By-Laws by the
Executive Committee, he may be removed by the Executive Committee.
2. CHAIRMAN. The Chairman shall be the chief executive officer of the
Corporation and, under the direction of the Board of Directors, shall have
general executive powers in the management and direction of the business and
affairs of the Corporation, as well as the specific powers conferred by these
By-Laws or by the Board of Directors. The Chairman shall preside, when present,
at all meetings of the stockholders, the Board of Directors and the Executive
Committee.
3. PRESIDENT. The President shall be the chief operating and
administrative officer of the Corporation and, under the direction of the Board
of Directors, shall, subject to the Chairman, have direct general supervision
over the management, business, properties and affairs of the Corporation. In the
event the Board of Directors does not provide for and elect a Chairman, the
President shall be the chief executive officer of the Corporation and, under the
direction of the Board of Directors, shall have general executive powers in the
management and direction of the business and affairs of the Corporation. In the
absence of the Chairman, he shall preside at all meetings of the stockholders,
the Board of Directors and the Executive Committee. He shall have general
executive powers, including all powers required by law to be exercised by a
president of a corporation as such, as well as the specific powers conferred by
these By-Laws or by the Board of Directors.
4. VICE PRESIDENT. Each Vice President shall have general executive
powers as well as the specific powers conferred by these By-Laws. He shall also
have such further powers and duties as may from time to time be conferred upon,
or assigned to, him by the Board of Directors, the Chairman or the President.
5. SECRETARY. The Secretary shall attend to the giving of notice of all
meetings of stockholders and of the Board of Directors required by these By-Laws
to be given, and shall keep true records of all proceedings thereat. He shall
have charge of the corporate seal and shall keep and account for all books,
documents, papers and records of the Corporation, except those for which some
other officer or agent is properly accountable, and shall generally perform all
the duties usually appertaining to the office of secretary of a corporation. In
the absence of the Secretary, an Assistant Secretary or Secretary pro tempore
shall perform his duties.
6. TREASURER. The Treasurer shall have the care and custody of all
moneys, funds and securities of the Corporation. He shall disburse the funds of
the Corporation in the manner ordered by the Board of Directors and shall keep
full and accurate accounts of receipts and disbursements of the Corporation. He
shall, whenever required to do so, render an account of all his transactions as
Treasurer to the Board of Directors. He shall perform such other duties as shall
be assigned to him by the Board of Directors, the Chairman or the President. In
the absence of the Treasurer, his duties shall be performed by an Assistant
Treasurer or by another officer thereunto designated by the Board of Directors,
the Chairman or the President.
7. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall be the
Treasurer unless the Board of Directors shall have designated another officer as
the Treasurer. He shall be responsible for overseeing and coordinating all
financial aspects of the Corporation's operations. He shall also have such
further powers and duties as may be from time to time conferred upon, or
assigned to, him by the Board of Directors, the Chairman or the President.
8. ADDITIONAL OFFICERS; DUTIES AND POWERS. In addition to the foregoing
especially enumerated duties and powers the several officers and agents of the
Corporation, whether or not
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specifically referred to in these By-Laws, shall perform such duties and
exercise such powers, in addition to those for which provision is made in these
By-Laws, as the Board of Directors or Executive Committee may from time to time
determine or as may be assigned to them by any competent superior officer.
9. COMPENSATION. The Board of Directors shall fix the compensation of
the Chairman and the President and of the senior and executive Vice Presidents,
if any; the compensation of all other officers of the Corporation shall be fixed
by the Board of Directors, the Executive Committee, or the President.
ARTICLE V
COMMITTEES OF THE BOARD
1. EXECUTIVE COMMITTEE; CONSTITUTION, POWERS, VACANCIES. The Board of
Directors may, by resolution adopted by affirmative vote of a majority of the
whole Board, appoint an Executive Committee, to consist of the Chairman and the
President, ex officio, and one or more other directors (with such alternates, if
any, as may be deemed desirable), which Executive Committee shall have and may
exercise, when the Board is not in session, all the powers of the Board of
Directors in the management of the business and affairs of the Corporation,
including the power to authorize the seal of the Corporation to be affixed to
all papers which may require it, and also including the power, from time to
time, to appoint one or more attorneys-in-fact to act for and in representation
of the Corporation, either generally or specially, judicially or
extra-judicially, and to delegate to any such attorney or attorneys-in-fact all
or any of the powers which, in the judgment of the Executive Committee, may be
necessary, convenient or suitable for exercise in any country or jurisdiction in
the transaction of the business of the Corporation or the defense or enforcement
of its rights, even though such powers be herein provided or directed to be
exercised by a designated officer of the Corporation; provided, that the
foregoing shall not be construed as authorizing action by the Executive
Committee with respect to any action which by these By-Laws or by the Articles
of Incorporation or any amendment thereto, or by statute, is required to be
taken by the Board of Directors, as such. As far as practicable, members of the
Executive Committee and their alternates (if any) shall be appointed at the
organization meeting of the Board in the next subsequent year and until their
respective successors are appointed. Any vacancy in the Executive Committee may
be filled by affirmative vote of a majority of the whole Board of Directors.
2. EXECUTIVE COMMITTEE; MEETINGS. Stated meetings of the Executive
Committee, of which no notice shall be necessary, shall be held at such times
and at such places as shall be fixed, from time to time, by resolution adopted
by the Executive Committee. Special meetings of the Executive Committee may be
called by the Chairman or the President, or by the Chairman of the Executive
Committee (if he be a person other than the Chairman or the President) or by any
other two members of the Executive Committee, at any time. Notice of any special
meeting of the Executive Committee may be given in the manner provided in the
By-Laws for giving notice of a special meeting of the Board of Directors, but
notice of any such meeting need not be given to any member of the Executive
Committee if waived by him in writing (including telegram, cablegram or
radiogram) or if he shall be present at the meeting; and any meeting of the
Executive Committee shall be a legal meeting, without any notice thereof having
been given, if all the members shall be present thereat. A majority of the
Executive Committee shall constitute a quorum for the transaction of business;
and the act of a majority of these present at any meeting at which a quorum is
present shall be the act of the Executive Committee.
3. EXECUTIVE COMMITTEE; RECORDS. The Executive Committee shall keep a
record of its acts and proceedings and shall report the same, from time to time,
to the Board of Directors. The Secretary of the Corporation, or in his absence,
an Assistant Secretary, shall act as secretary to the Executive Committee; or
the Committee may, in its discretion, appoint its own secretary.
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4. OTHER COMMITTEES. The Board of Directors may from time to time, by
resolution passed by a majority of the whole Board, designate one or more other
committees for any purpose, each consisting of two or more Directors, and may
delegate to any such committee such powers of the Board of Directors in the
management of the business and affairs of the Corporation as the Board may deem
expedient, subject to the provisions of these By-Laws, with power to
sub-delegate such powers, if by the Board deemed desirable.
5. COMMITTEE RULES. Unless the Board of Directors otherwise provides,
each committee designated by the Board of Directors may adopt, amend and repeal
rules for the conduct of its business. In the absence of a provision by the
Board of Directors or a provision in the rules of such committee to the
contrary, a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of business, the vote of
a majority of the members present at a meeting at the time of such vote if a
quorum is then present shall be the act of such committee, and in other respects
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article III of these By-Laws.
ARTICLE VI
MISCELLANEOUS
1. FISCAL YEAR. The fiscal year of the Corporation shall end on Friday
of the last weekend in January of each year, effecting a 52-53 week fiscal year
basis.
2. CORPORATE SEAL. The Secretary or any Assistant Secretary, or other
officer thereunto designated by the Secretary, shall have authority to affix the
corporate seal to any document requiring such seal and to attest the same.
3. EXECUTION OF INSTRUMENTS. The bills, notes, checks, and other
instruments for the payment of money, all agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered, or accepted on behalf of
the Corporation by the Chairman, the President, any Vice President, the
Secretary or the Treasurer. Any such instruments may also be signed, executed,
acknowledged, verified, delivered or accepted on behalf of the Corporation in
such other manner and by such other officers, employees or agents of the
Corporation as the Board of Directors or Executive Committee may from time to
time direct.
4. DIVIDENDS. Dividends shall be declared only at such times and in
such amounts as the Board of Directors shall direct.
5. REDEMPTION OF CONTROL SHARES. The Corporation is authorized to
redeem control shares acquired in a control-share acquisition with respect to
which no acquiring person statement has been filed with the Corporation, at any
time during the period ending 60 days after the last acquisition of control
shares by the acquiring person, at the fair value of such control shares
pursuant to procedures adopted by the Board of Directors. For the purposes of
this Article VI, terms used in this Article shall have the meanings assigned to
such terms in Section 607.0902 of the Florida Business Corporation Act.
6. TREASURY SHARES. In the event the Corporation acquires its own
shares and the Corporation has shares of any class or series which are either
registered on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National
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Association of Securities Dealers, Inc., the shares so acquired by the
Corporation shall constitute treasury shares.
ARTICLE VII
AMENDMENTS
Except as otherwise provided herein or in the Articles of
Incorporation, these By-Laws or any provisions thereof may be amended, altered,
or repealed, in any particulars and new By-Laws or provisions, not inconsistent
with any provision of the Articles of Incorporation or any provision of law, may
be adopted by the Board of Directors, at any meeting thereof, by the affirmative
vote of a majority of the whole number of Directors, or by the stockholders of
the Corporation, at any meeting of the stockholders, provided, however, that the
power of the Directors to make and alter By-Laws shall be subject to such
restrictions upon the exercise of such power as may be expressly imposed by the
stockholders in any By-Laws adopted by them from time to time.
ARTICLE VIII
INDEMNIFICATION
1. RIGHT TO INDEMNIFICATION. Any person, his heirs, or personal
representative, made, or threatened to be made a party to any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative, regulatory, or investigative ("Proceeding") because he is or was
a director or officer of this Corporation or serves or served any other
corporation or other enterprise in any capacity at the request of this
Corporation, shall be indemnified by this Corporation, to the full extent
permitted by the Florida Business Corporation Act, under Section 607.0850;
provided, however, that the Corporation shall indemnify any such person seeking
indemnity in connection with a Proceeding (or part thereof) initiated by such
person only if such Proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. In discharging his duty, any director or officer,
when acting in good faith, may rely upon information, opinions, reports, or
statements, including financial statements and other financial data, in each
case prepared or presented by (1) one or more officers or employees of the
Corporation whom the director or officer reasonably believes to be reliable and
competent in the matters presented, (2) counsel, public accountants, or other
persons as to matters that the director or officer believes to be within that
person's professional or expert competence, or (3) in the case of a director, a
committee of the board of directors upon which he does not serve, duly
designated according to law, as to matters within its designated authority, if
the director reasonably believes that the committee is competent.
2. ADVANCES. The rights set forth above in this Article VIII shall
include the right to be paid by the Corporation expenses incurred in defending
or being represented in any such Proceeding in advance of its final disposition;
provided, however, that the payment of such expenses incurred by a director or
officer because he is or was a director or officer of this Corporation or serves
or served any other corporation or enterprise in any capacity at the request of
this Corporation (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including service to an
employee benefit plan) in advance of the final disposition of such Proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled to
be indemnified under this Article VIII or otherwise.
3. CONTRACT RIGHT. All rights to indemnification, including advancement
of expenses, shall be deemed to be provided by a contract between the
Corporation and the director or officer who serves in
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such capacity at any time while this Article VIII and other relevant provisions
of the Florida Business Corporation Act and other applicable law, if any, are in
effect, such that any repeal or modification thereof shall not adversely affect
any right existing at the time of such repeal or modification.
4. RIGHT TO BRING SUIT. If a claim under the preceding paragraphs of
this Article VIII is not paid in full by the Corporation within 90 days after a
written claim therefor has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense, including attorney's fees, of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking
has been tendered to the Corporation) that the claimant has not met the
applicable standard of conduct which makes it permissible under the Florida
Business Corporation Act for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in the Florida Business Corporation Act, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant had not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that claimant had not met the applicable standard of conduct.
5. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Article VIII shall not be exclusive of any other right which such person
may have or hereafter acquire under any statute, provision of these By-Laws, the
Articles of Incorporation, agreement, vote of stockholders or disinterested
directors or otherwise.
6. INSURANCE. The Corporation may maintain insurance, at its expense,
for the purpose of indemnifying itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, trust or other
enterprise, whether or not the Corporation would have the power to provide such
indemnity under the Florida Business Corporation Act.
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EXHIBIT 10.4
HUGHES SUPPLY, INC.
AMENDED AND RESTATED PLAN
DIRECTORS' STOCK OPTION PLAN
(WITH AMENDMENTS APPROVED THROUGH MAY 19, 1999)
1. PURPOSE
This Directors' Stock Option Plan (the "Plan") is intended as
an incentive and to encourage Directors of Hughes Supply, Inc. (the
"Corporation") who are not, and for the previous twelve (12) months have not
been, employees of the Corporation eligible to participate in the Hughes Supply,
Inc. 1988 Stock Option Plan (the "Employee Plan") to increase their stock
ownership and proprietary interest in the success of the Corporation, to
encourage them to continue as Directors of the Corporation and as an incentive
to work to increase the value of the stock of the Corporation. The options to be
issued pursuant to this Plan shall not constitute incentive stock options within
the meaning of 422A of the 1986 Internal Revenue Code, as amended (the "Code").
2. ADMINISTRATION
The Plan shall be administered by a Directors' Stock Option
Plan committee appointed by the Board of Directors of the Corporation (the
"Committee"). The Committee shall consist of not less than three (3) members of
the Corporation's Board of Directors who are not employees of the Corporation
and who are "disinterested persons" as that term is defined in Rule 16b-3(d)
under the Securities Exchange Act of 1934 (the "Exchange Act") or any successor
statute or regulation regarding the same subject matter. The Board of Directors
may from time to time remove members from, or add members to, the Committee.
Vacancies on the Committee, howsoever caused, shall be filled by the Board of
Directors. The Committee shall elect one of its members as Chairman, and shall
hold meetings at such times and places as it may determine. Acts of the
Committee taken by a majority of the Committee at a meeting at which a quorum is
present, or acts reduced to or approved in writing by a majority of the members
of the Committee, shall be the valid acts of the Committee. A nonemployee
Director shall receive options under the Plan whether or not such Director also
serves as a member of the Committee. Subject to the provisions of the Plan the
Committee may from time to time adopt such rules for administration of the Plan
as it deems appropriate.
The interpretation and construction by the Committee of any
provisions of the Plan or of any option granted under it shall be final unless
otherwise determined by the Board of Directors. No member of the Board of
Directors or the Committee shall be liable for any action or determination made
in good faith with respect to the Plan or any option granted under it.
3. PARTICIPANTS AND OPTIONS
The persons who shall be participants under the Plan (the
"Participants") shall be all such Directors of the Corporation as are not on the
date of the grant of an option under the Plan, and for a period of at least
twelve (12) months prior to the grant of such option have not been, employees of
the Corporation. Options are granted and shall be granted to Participants under
the Plan as follows:
(i) Subject to approval of the Plan by the stockholders in
accordance with Section 13 hereof and to the receipt by the Corporation of the
letter from the staff of the Securities and Exchange Commission referred to in
Section 14 hereof, an initial grant of an aggregate of 18,000 shares divided
equally (rounded, if necessary, down to the nearest whole number of shares)
among the Participants is made effective as of January 24, 1989 to the
Participants on that date.
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(ii) In addition to the options referred to in subparagraph
(i) above, during the term of the Plan until, but not including, the date of the
1994 annual meeting of shareholders a subsequent grant of options for an
aggregate of 18,000 shares, or such lesser number of shares as shall then
constitute all of the remaining shares which are authorized for options under
the Plan, but which are not then subject to options under the Plan within the
limitation set forth in Section 4 hereof, divided equally (rounded, if
necessary, down to the nearest whole number of shares) among the then
Participants under the Plan, will be made at the meeting of the Board of
Directors of the Corporation immediately following the 1990 annual meeting of
stockholders of the Corporation and at each Board meeting immediately following
each annual meeting of stockholders of the Corporation thereafter during the
term of the Plan and prior to the 1994 annual meeting of Shareholders.
(iii) In addition to the options referred to in subparagraphs
(i) and (ii) above, during the term of the Plan beginning with the date of the
1994 annual meeting of shareholders, a subsequent grant of options for an
aggregate of 22,500 shares or such lesser number of shares as shall then
constitute all of the remaining shares which are authorized for options under
the Plan but which are not then subject to options under the Plan, within the
limitations set forth in Section 4 hereof, divided equally (rounded, if
necessary, down to the nearest whole number of shares) among the Participants
under the Plan, will be made at the meeting of the Board of Directors of the
Corporation immediately following the 1994 annual meeting of stockholders of the
Corporation and at each Board meeting immediately following each annual meeting
of stockholders thereafter through the 1998 annual meeting.
(iv) In addition to the options referred to in subparagraphs
(i) and (ii) above, during the term of the Plan beginning with the date of the
1999 annual meeting of shareholders, a subsequent grant of options for an
aggregate of 20,000 shares or such lesser number of shares as shall then
constitute all of the remaining shares which are authorized for options under
the Plan but which are not then subject to options under the Plan, within the
limitations set forth in Section 4 hereof, divided equally (rounded, if
necessary, down to the nearest whole number of shares) among the Participants
under the Plan, will be made at the meeting of the Board of Directors of the
Corporation immediately following the 1999 annual meeting of stockholders of the
Corporation and at each Board meeting immediately following each annual meeting
of stockholders thereafter during the term of the Plan.
4. STOCK
The stock which may be subject to the options under the Plan
shall be 302,500 shares of the Corporation's authorized but unissued or
reacquired $1.00 par value common stock hereafter sometimes called capital
stock. The aggregate number of shares of capital stock which are subject to
outstanding options and which will be subject to options to be granted under the
Plan shall be subject to adjustment in accordance with the provisions of
subsection (h) of Section 5 hereof.
In the event that any outstanding option under the Plan for
any reason expires or is terminated, the shares of capital stock allocable to
the unexercised portion of such option may again be subjected to an option under
the Plan.
Of the stock which may be subject to options under the Plan,
112,500 of such shares have been added by an amendment to the Plan approved by
the stockholders on May 24, 1994 and such additional shares constitute shares as
to which "Amendment Options" within the meaning of Section 6 hereof may be
granted, and approval by the stockholders of such amendment extends the term of
the Plan in accordance with Section 6 thereof.
Furthermore, of the stock which may be subject to options
under the Plan, 100,000 of such shares have been added by an amendment to the
Plan approved by the stockholders on May 19, 1999 and
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such additional shares constitute shares as to which "Amendment Options" within
the meaning of Section 6 hereof may be granted, and approval by the stockholders
of such amendment extends the term of the Plan in accordance with Section 6
hereon.
5. TERMS AND CONDITIONS OF OPTIONS: STOCK OPTION
AGREEMENTS
Stock options granted pursuant to the Plan shall be evidenced
by stock option agreements in such form as the Committee shall from time to time
recommend and the Board of Directors shall from time to time approve, which
agreements shall comply with and be subject to the following terms and
conditions:
(a) OPTIONEE'S AGREEMENT
Each optionee shall agree to remain as a Director
of the Corporation but such agreement shall not impose upon the Corporation any
obligation to retain the optionee as a Director for any period.
(b) NUMBER OF SHARES
Each option shall state the number of shares to which
it pertains.
(c) OPTION PRICE
Each option shall state the option price, which shall
be not less than one hundred percent (100%) of the fair market value of the
shares of capital stock of the Corporation on the date of the granting of the
option. During such time as such stock is not listed upon an established stock
exchange the fair market value per share shall be the mean between dealer "bid"
and "ask" prices of the capital stock in over-the-counter market applicable to
transactions effected in Orlando, Florida on the day the option is granted, as
reported by the National Association of Securities Dealers, Inc. If the stock is
listed upon an established stock exchange or exchanges such fair market value
shall be deemed to be the highest closing price of the capital stock on such
stock exchange or exchanges on the day the option is granted or if no sale of
the Corporation's capital stock shall have been made on any stock exchange on
that day, on the next preceding day on which there was a sale of such stock.
Subject to the foregoing, the Board of Directors and the Committee in fixing the
option price shall have full authority and discretion and be fully protected in
doing so.
(d) MEDIUM AND TIME OF PAYMENT
The option price shall be payable in United States
dollars upon the exercise of the option and may be paid in cash, by check or
with shares of capital stock of the Corporation valued at their fair market
value, as that term is defined in the preceding paragraph.
(e) TERM AND EXERCISE OF OPTIONS
An option shall be exercisable either in whole or in
part at any time after the date on which it is granted and prior to its
expiration date which, unless sooner terminated under subsections (f) or (g) of
this Section 5 hereof, shall be ten (10) years from the date on which it is
granted. The procedure for exercise of an option shall be as set forth in the
Plan and in the stock option agreement evidencing the grant of the option. In
the event of any conflict between the language of the stock option agreement and
the language of the Plan, the language of the Plan shall govern. No option shall
be exercisable after its expiration date. Not less than ten (10) shares may be
purchased at any one time unless the number purchased is the total
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number at the time purchasable tinder the option. During the lifetime of the
optionee, the option shall be exercisable only by him and shall not be
assignable or transferable by him and no other person shall acquire any rights
therein.
(f) TERMINATION OF SERVICE AS A DIRECTOR EXCEPT DEATH
In the event that an optionee shall cease to be a
Director of the Corporation for any reason other than his death, subject to the
condition that no option shall be exercisable after its expiration date, such
optionee shall have the right to exercise the option at any time within one (1)
year after such termination as a Director to the extent his right to exercise
such option has not previously been exercised at the date of such termination.
For purposes of this paragraph, in the case of an optionee who becomes disabled
within the meaning of 22(3)(e) of the Code, the words "three months" shall be
replaced by the words "one year".
(g) DEATH OF OPTIONEE AND TRANSFER OF OPTION
If the optionee shall die while a Director of the
Corporation or within a period of three (3) months after the termination of his
service as a Director of the Corporation and shall not have fully exercised the
option, an option may be exercised at any time within one (1) year after the
optionee's death, subject to the condition that no option shall be exercisable
after its expiration date, to the extent that the optionee's right to exercise
such option at the time of his death had not been previously exercised, by the
executors or administrators of the optionee or by any person or persons who
shall have acquired the option directly from the optionee by bequest or
inheritance or by reason of the death of the decedent.
No option shall be transferable by the optionee
otherwise than by Will or the laws of descent and distribution.
(h) RECAPITALIZATION
Subject to any required action by the stockholders,
the number of shares of capital stock which are subject to each outstanding
option or which will be subject to each option to be granted under the Plan, and
the price per share thereof in each such option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of capital
stock of the Corporation resulting from a subdivision or consolidation of shares
or the payment of a stock dividend (but only on the capital stock) or any other
increase or decrease in the number of such shares effected without receipt of
consideration by the Corporation.
Subject to any required action by the stockholders if
the Corporation shall be the surviving corporation in any merger or
consolidation, each outstanding option shall pertain to and apply to the
securities to which a holder of the number of shares of capital stock subject to
the option would have been entitled. A dissolution or liquidation of the
Corporation or a merger or consolidation in which the Corporation is not the
surviving corporation, shall cause each outstanding option to terminate provided
that each optionee shall, in such event, have the right immediately prior to
such dissolution or liquidation, or merger or consolidation in which the
Corporation is not the surviving corporation, to exercise his option in whole or
in part.
In the event of a change in the capital stock of the
Corporation as presently constituted, which is limited to a change of all of its
authorized shares with par value into the same number of shares with a different
par value or without par value, the shares resulting from any such change shall
be deemed to be the capital stock within the meaning of the Plan.
4
<PAGE>
To the extent that the foregoing adjustments relate
to stock or securities of the Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive.
Except as hereinbefore expressly provided in this
subsection 5(h), the optionee shall have no rights by reason of any subdivision
or consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, merger, or consolidation
or spin-off of assets or stock of another corporation, and any issue by the
Corporation of shares of stock of any class, or securities convertible into
shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of capital
stock subject to the option.
The grant of an option pursuant to the Plan shall not
affect in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
(i) RIGHTS AS A STOCKHOLDER
An optionee or a transferee of an option
shall have no rights as a stockholder with respect to any shares covered by his
option until the date of the issuance of a stock certificate to him for such
shares. No adjustments shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued,
except as provided in subsection 5(h) hereof
(j) MODIFICATION, EXTENSION AND RENEWAL OF
OPTIONS
Subject to the terms and conditions and
within the limitations of the Plan, the Board of Directors may modify, extend or
renew outstanding options granted under the Plan, or accept the surrender of
outstanding options (to the extent not theretofore exercised) and authorize the
granting of new options in substitution therefor (to the extent not theretofore
exercised). Notwithstanding the foregoing, however, no modification of an option
shall, without consent of the optionee, alter or impair any rights of
obligations under any option theretofore granted under the Plan.
(k) INVESTMENT PURPOSE
Each option under the Plan shall be granted
on the condition that the purchases of stock thereunder shall be for investment
purposes, and not with a view to resale or distribution except that in the event
the stock subject to such option is registered under the Securities Act of 1933,
as amended (the "Securities Act"), or in the event a resale of such stock
without such registration would otherwise be permissible, such condition shall
be inoperative if in the opinion of counsel for the Corporation such condition
is not required under the Securities Act, or any other applicable law,
regulation, or rule of any governmental agency.
(l) OTHER PROVISIONS
The option agreements authorized under the
Plan shall contain such other provisions, including, without limitation,
restrictions upon the exercise of the option, as the Committee and the Board of
Directors of the Corporation shall deem advisable.
5
<PAGE>
6. EFFECTIVE DATE AND TERM OF PLAN
Subject to approval by the stockholders as required by Section
13 hereof and to the receipt by the Corporation of the letter from the staff of
the Securities and Exchange Commission referred to in Section 14 hereof, the
Plan shall become effective as of January 24, 1989, the date of its adoption by
the Board of Directors of the Corporation and, subject to such stockholder
approval and the receipt of such letter, the initial grant of options hereunder
as provided in subsection 3(i) shall be effective as of the effective date of
the Plan. This Plan shall remain in effect and options shall be granted
hereunder from time to time until ten (10) years from the date the Plan is
approved by the stockholders or until terminated by the Board of Directors in
accordance with Section 8 hereof, whichever is earlier. Notwithstanding the
foregoing part of this Section 6, with respect to any amendment to this Plan
adopted for the purpose of increasing the number of shares as to which options
("Amendment Options") may be granted hereunder, the Plan shall remain in effect
as to Amendment Options and Amendment Options may be granted hereunder from time
to time until ten (10) years from the date such amendment is adopted or the date
such amendment is approved by the stockholders if such approval is required or
until the Plan, as amended, is terminated by the Board of Directors in
accordance with Section 8 hereof, whichever is earlier. For purposes of options
outstanding under the Plan the Plan shall continue in effect until all
outstanding options have been exercised in full or are no longer exercisable.
7. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they
may have as Directors or as members of the Committee, the members of the
Committee shall be indemnified by the Corporation against the reasonable
expenses, including attorneys' fees, actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan or
any option granted thereunder, and against all amounts paid by them in
settlement thereof, not to exceed, in the judgment of the Board of Directors,
the estimated expense of litigating the proceeding to conclusion (provided such
settlement is approved by independent legal counsel selected by the Corporation)
or paid by them in satisfaction of a judgment in any such action, suit or
proceeding, except in relation to matters as to which it shall be adjudged in
such action, suit or proceeding that the member of the Committee is liable. A
Committee member shall in writing offer the Corporation the opportunity, at its
own expense, to handle and defend the same.
8. AMENDMENT OF THE PLAN
The Board of Directors of the Corporation may, insofar as
permitted by law, from time to time, with respect to any shares at the time not
subject to options, suspend or discontinue the Plan or revise or amend it in any
respect whatsoever except that, without approval of the stockholders, no such
revision or amendment shall change the number of shares subject to the Plan,
extend the term of the Plan or the term of any option which may be granted under
the Plan, change the designation of the Participants or the manner in which
options are granted under the Plan or materially increase the benefits accruing
under the Plan (materially, within the meaning of Rule 16b-3 implementing the
Exchange Act), decrease the price at which options may be granted or remove the
administration of the Plan from the Committee (except as may be required by the
staff of the Commission to provide the letter described in Section 13 hereof).
9. APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of
capital stock pursuant to options will be used for general corporate purposes.
6
<PAGE>
10. NO OBLIGATION TO EXERCISE OPTION
The granting of an option shall impose no obligation upon the
optionee to exercise such option.
11. WITHHOLDING
The exercise of any option granted under the Plan shall
constitute an optionee's full and complete consent to whatever action the
Committee directs to satisfy the federal and state withholding requirements, if
any, which the Committee in its discretion deems applicable to such exercise or
surrender.
12. CONSTRUCTION
The Plan shall be construed under the laws of the State of
Florida.
13. APPROVAL OF STOCKHOLDERS
The Plan shall be submitted for approval by the stock holders
of the Corporation within twelve (12) months from the date the Plan is adopted
by the Board of Directors. Any amendment to the Plan requiring approval by the
stockholders of the Corporation shall be submitted for approval by the
stockholders within twelve (12) months from the date the amendment is adopted by
the Board of Directors.
The initial options granted under the Plan, as set forth in
subsection 3(1) hereof are granted as of the date set forth therein; provided,
however, that such options shall not be exercisable until after the date on
which the Plan shall have approved by a vote of the stockholders. Options may be
granted pursuant to any amendment to this Plan adopted for the purpose of
increasing the number of shares as to which options may be granted, the types of
options which may be granted or the rights applicable to options which may be
granted hereunder, commencing with the date of adoption of such amendment by the
Board of Directors of the Corporation; provided, however, that options granted
in reliance upon any such amendment shall not be exercisable until the date on
which such amendment shall have been submitted for approval of the stockholders.
14. LETTER FROM COMMISSION STAFF
The Corporation will request a letter from the staff of the
Securities and Exchange Commission (the "Commission") concurring with the
opinion of legal counsel to the Corporation that the Plan complies with the
requirements set forth in Rule 6b-3 promulgated by the Commission to provide
exemptive relief from certain aspects of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If, as a condition of
providing its concurring letter, the staff of the Commission requires
modifications to the Plan which are not material and such modifications are
approved by the Board of Directors, the Plan shall be so modified and amended
under the provisions of Section 8 hereof. In the event the Corporation is unable
to obtain the aforementioned concurring letter from the staff of the Commission
as required by this Section 14 or the Plan is not approved by the stockholders
as required by Section 13 hereof, the Plan shall be deemed null and void ab
initio.
7
EXHIBIT 10.11
REVOLVING CREDIT AGREEMENT
Dated as of January 26, 1999
By And Among
HUGHES SUPPLY, INC.
AND
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
FIRST UNION NATIONAL BANK,
individually and as Documentation Agent,
NATIONSBANK, N.A.,
individually and as Syndication Agent
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
individually and as Co-Agent,
ABN AMRO BANK, N.V.,
PNC BANK, N.A.,
WACHOVIA BANK, N.A.,
THE FIFTH THIRD BANK,
HIBERNIA NATIONAL BANK, and
other financial institutions becoming a party hereto
- --------------------------------------------------------------------------------
King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Carolyn Zander Alford
(404) 572-4600
<PAGE>
<TABLE>
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TABLE OF CONTENTS
PAGE
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<S> <C>
Article I. DEFINITIONS; CONSTRUCTION............................................................................1
Section 1.01 Definitions...................................................................................1
Section 1.02 Accounting Terms and Determination...........................................................16
Section 1.03 Other Definitional Terms.....................................................................17
Section 1.04 Exhibits and Schedules.......................................................................17
Article II. REVOLVING LOAN COMMITMENTS..........................................................................17
Section 2.01 Revolving Loan Commitments, Use of Proceeds..................................................17
Section 2.02 Syndicate Note; Repayment of Principal.......................................................18
Section 2.03 Voluntary Reduction of Revolving Loan Commitments............................................18
Article III. GENERAL LOAN TERMS................................................................................18
Section 3.01 Funding Notices..............................................................................18
Section 3.02 Disbursement of Funds........................................................................21
Section 3.03 Increase of Revolving Loan Commitments.......................................................22
Section 3.04 Interest.....................................................................................23
Section 3.05 Interest Periods.............................................................................24
Section 3.06 Fees.........................................................................................25
Section 3.07 Voluntary Prepayments of Borrowings..........................................................25
Section 3.08 Payments, etc................................................................................26
Section 3.09 Interest Rate Not Ascertainable, etc.........................................................28
Section 3.10 Illegally....................................................................................28
Section 3.11 Increased Costs..............................................................................29
Section 3.12 Lending Offices..............................................................................30
Section 3.13 Funding Losses...............................................................................31
Section 3.14 Assumptions Concerning Funding of Eurodollar Advances........................................31
Section 3.15 Apportionment of Payments....................................................................31
Section 3.16 Sharing of Payments, Etc.....................................................................32
Section 3.17 Capital Adequacy.............................................................................32
Section 3.18 Benefits to Guarantors.......................................................................33
Section 3.19 Limitation on Certain Payment Obligations....................................................33
Article IV. CONDITIONS TO BORROWINGS..........................................................................33
Section 4.01 Conditions Precedent to Initial Revolving Loans..............................................33
Section 4.02 Conditions to All Revolving Loans............................................................36
Article V. REPRESENTATIONS AND WARRANTIES......................................................................37
Section 5.01 Organization and Qualification...............................................................37
Section 5.02 Corporate Authority..........................................................................37
Section 5.03 Financial Statements.........................................................................37
Section 5.04 Tax Returns..................................................................................38
Section 5.05 Actions Pending..............................................................................38
Section 5.06 Representations; No Defaults.................................................................38
Section 5.07 Title to Properties..........................................................................38
Section 5.08 Enforceability of Agreement..................................................................39
Section 5.09 Consent......................................................................................39
Section 5.10 Use of Proceeds, Federal Reserve Regulations.................................................39
Section 5.11 ERISA........................................................................................39
Section 5.12 Subsidiaries.................................................................................40
Section 5.13 Outstanding Indebtedness.....................................................................40
</TABLE>
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Section 5.14 Conflicting Agreements.......................................................................40
Section 5.15 Pollution and Other Regulations..............................................................41
Section 5.16 Possession of Franchises, Licenses, Etc......................................................42
Section 5.17 Patents, Etc.................................................................................42
Section 5.18 Governmental Consent.........................................................................42
Section 5.19 Disclosure...................................................................................42
Section 5.20 Insurance Coverage...........................................................................43
Section 5.21 Labor Matters................................................................................43
Section 5.22 Intercompany Loans, Dividends................................................................43
Section 5.23 Burdensome Restrictions......................................................................43
Section 5.24 Investment Company Act, Etc..................................................................43
Section 5.25 Notice of Non-Compliance with Laws...........................................................44
Section 5.26 Year 2000 Issues.............................................................................44
Article VI. AFFIRMATIVE COVENANTS.............................................................................44
Section 6.01 Corporate Existence, Etc.....................................................................44
Section 6.02 Compliance with Laws, Etc....................................................................44
Section 6.03 Payment of Taxes and Claims, Etc.............................................................44
Section 6.04 Keeping of Books.............................................................................45
Section 6.05 Visitation, Inspection, Etc..................................................................45
Section 6.06 Insurance, Maintenance of Properties.........................................................45
Section 6.07 Reporting Covenants..........................................................................46
Section 6.08 Financial Covenants..........................................................................50
Section 6.09 Notices Under Certain Other Indebtedness.....................................................51
Section 6.10 Additional Guarantors........................................................................51
Section 6.11 Financial Statements; Fiscal Year............................................................51
Section 6.12 Ownership of Guarantors......................................................................51
Article VII. NEGATIVE COVENANTS................................................................................52
Section 7.01 Indebtedness.................................................................................52
Section 7.02 Liens........................................................................................52
Section 7.03 Mergers, Acquisitions, Sales, Etc............................................................53
Section 7.04 Investments, Loans, Etc......................................................................54
Section 7.05 Sale and Leaseback Transactions..............................................................55
Section 7.06 Transactions with Affiliates.................................................................55
Section 7.07 Optional Prepayments.........................................................................55
Section 7.08 Changes in Business..........................................................................55
Section 7.09 ERISA........................................................................................56
Section 7.10 Additional Negative Pledges..................................................................56
Section 7.11 Limitation on Payment Restrictions Affecting Consolidated Companies..........................56
Article VIII. EVENTS OF DEFAULT..............................................................................56
Section 8.01 Payments.....................................................................................57
Section 8.02 Covenants Without Notice.....................................................................57
Section 8.03 Other Covenants..............................................................................57
Section 8.04 Representations..............................................................................57
Section 8.05 Non-Payments of Other Indebtedness...........................................................57
Section 8.06 Defaults Under Other Agreements..............................................................57
Section 8.07 Bankruptcy...................................................................................57
Section 8.08 ERISA........................................................................................58
Section 8.09 Money Judgment...............................................................................58
Section 8.10 Ownership of Credit Parties and Pledged Entities.............................................59
Section 8.11 Change in Control of Borrower................................................................59
Section 8.12 Default Under Other Credit Documents.........................................................59
Section 8.13 Attachments..................................................................................59
Article IX. THE AGENTS........................................................................................60
Section 9.01 Appointment of Administrative Agent..........................................................60
</TABLE>
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Section 9.02 Nature of Duties of Administrative Agent.....................................................60
Section 9.03 Lack of Reliance on the Administrative Agent.................................................60
Section 9.04 Certain Rights of the Administrative Agent...................................................61
Section 9.05 Reliance by Administrative Agent.............................................................61
Section 9.06 Indemnification of Administrative Agent......................................................61
Section 9.07 The Administrative Agent in Its Individual Capacity..........................................62
Section 9.08 Holders of Revolving Notes...................................................................62
Section 9.09 Successor Administrative Agent...............................................................62
Section 9.10 Documentation Agent..........................................................................63
Section 9.11 Syndication Agent............................................................................63
Section 9.12 Co-Agent.....................................................................................63
Article X. MISCELLANEOUS.......................................................................................63
Section 10.01 Notices......................................................................................63
Section 10.02 Amendments, Etc..............................................................................64
Section 10.03 No Waiver, Remedies Cumulative...............................................................64
Section 10.04 Payment of Expenses, Etc.....................................................................65
Section 10.05 Right of Setoff..............................................................................66
Section 10.06 Benefit of Agreement.........................................................................66
Section 10.07 Governing Law; Submission to Jurisdiction....................................................69
Section 10.08 Independent Nature of Lenders' Rights........................................................70
Section 10.09 Counterparts.................................................................................70
Section 10.10 Effectiveness; Survival......................................................................70
Section 10.11 Severability.................................................................................70
Section 10.12 Independence of Covenants....................................................................71
Section 10.13 Change in Accounting Principles, Fiscal Year or Tax Laws.....................................71
Section 10.14 Headings Descriptive, Entire Agreement.......................................................71
Section 10.15 Time is of the Essence.......................................................................71
Section 10.16 Usury........................................................................................71
Section 10.17 Construction.................................................................................71
Section 10.18 Waiver of Effect of Corporate Seal...........................................................72
</TABLE>
iii
<PAGE>
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of January 26,1999
(the "Agreement") by and among HUGHES SUPPLY, INC. ("Borrower"), a Florida
corporation, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, ("SunTrust
Bank, Central Florida") a national banking association, FIRST UNION NATIONAL
BANK, a national banking association, NATIONSBANK, N.A., a national banking
association, SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking
association, ABN AMRO BANK, N.V., a banking corporation organized under the laws
of the Netherlands, PNC BANK, N.A., a national banking association, WACHOVIA
BANK, N.A., a national banking association, THE FIFTH THIRD BANK, a national
banking association, HIBERNIA NATIONAL BANK, a national banking association and
such other financial institutions becoming a party hereto from time to time,
(individually, a "Lender" and collectively, the "Lenders"), SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), FIRST UNION NATIONAL BANK, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), NATIONSBANK, N.A., as syndication agent for the Lenders (in such
capacity, the "Syndication Agent") and SOUTHTRUST BANK NATIONAL ASSOCIATION, as
Co-Agent for the Lenders (in such capacity, the "Co-Agent").
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders establish a
$225,000,000 revolving credit facility in favor of Borrower, and subject to the
terms and conditions contained herein, the Lenders are willing to establish such
revolving credit facility in favor of Borrower subject to the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the mutual covenants made
herein, amid for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01 DEFINITIONS. As used in this Agreement, and in
any instrument, certificate, document or report delivered pursuant hereto, the
following terms shall have the following meanings (to be equally applicable to
both the singular and plural forms of the term defined):
"ADMINISTRATIVE AGENT" shall mean SunTrust Bank, Central
Florida, a national banking association, as administrative agent for the Lenders
hereunder and under the other Credit Documents, and each successor
administrative agent.
<PAGE>
"ADJUSTED LIBO RATE" shall mean with respect to each Interest
Period for a Eurodollar Advance, the rate obtained by dividing (A) LIBOR for
such Interest Period by (B) a percentage equal to I minus the then stated
maximum rate (stated as a decimal) of all reserves requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurodollar liabilities as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D). The Administrative Agent
shall promptly notify the Borrower of any such reserve requirements that become
applicable.
"ADVANCE" shall mean any principal amount advanced and
remaining outstanding at any time under the Revolving Loans, which Advance shall
be made or outstanding as a Base Rate Advance, Competitive Bid Advance or
Eurodollar Advance, as the case may be.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control With") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"AGENTS" shall mean, collectively, the Administrative Agent,
the Documentation Agent, the Syndication Agent and the Co-Agent.
"AGREEMENT" shall mean this Revolving Credit Agreement, either
as originally executed or as it may be from time to time supplemented, amended,
restated, renewed or extended and in effect.
"APPLICABLE FACILITY FEE PERCENTAGE" shall mean the percentage
designated below based on Borrower's Leverage Ratio for the most recently ended
fiscal quarter for which financial statements have been delivered pursuant to
Section 6.07(a) or (b):
- ------------------------------------------ -------------------------------------
Leverage Ratio Applicable Facility Fee
Percentage for Revolving
Loan Commitment:
- ------------------------------------------ -------------------------------------
Less than 0.4: 1.0 0.15%
- ------------------------------------------ -------------------------------------
Greater than or equal to 0.4: 1.0 0.175%
but less than 0.45:1.0.
- ------------------------------------------ -------------------------------------
Greater than or equal to 0.20%
0.45: 1.0 but less than 0.5: 1.0
- ------------------------------------------ -------------------------------------
Greater than or equal to 0.5:1.0 0.25%
but less than 0.55:1.0
- ------------------------------------------ -------------------------------------
Greater than or equal to 0.30%
0.55:1.0
- ------------------------------------------ -------------------------------------
provided, however, that:
<PAGE>
(a) The Applicable Facility Fee Percentage in effect as of the
date of execution and delivery of this Agreement is .20% for Revolving
Loan Commitments, and such percentage shall remain in effect until such
time as the Applicable Facility Fee Percentage may be adjusted as
hereinafter provided; and
(b) Adjustments, if any, to the Applicable Facility Fee
Percentages based on changes in the ratios set forth above shall be
made and become effective (i) on the first day of the fiscal quarter
immediately following delivery of the financial statements required
pursuant to Section 6.07(b), and (ii) on the first day of the second
fiscal quarter immediately following the last day of any fiscal year of
Borrower.
(c) Notwithstanding the foregoing, at any time during which
Borrower has failed to deliver the financial statements and
certificates when required by Section 6.07(a) and (b), as the case may
be, the Applicable Facility Fee Percentage shall be 0.30% until such
time as the delinquent financial statements are delivered at which time
the Applicable Facility Fee Percentage shall be reset as provided
above.
"Applicable Margin" shall mean the percentage designated below
based on Borrower's Leverage Ratio for the most recently ended fiscal quarter
for which financial statements have been delivered pursuant to Section 6.07(a)
or (b):
- ----------------------------------------- ----------------------------
Leverage Ratio Applicable Margin for
Revolving Loan
Commitment:
- ----------------------------------------- ----------------------------
Less than 0.4: 1.0 0.25%
- ----------------------------------------- ----------------------------
Greater than or equal to 0.325%
0.4: 1.0 but less than 0.45: 1.0
- ----------------------------------------- ----------------------------
Greater than or equal to 0.55%
0.45: 1.0 but less than 0.5: 1.0
- ----------------------------------------- ----------------------------
Greater than or equal to 0.625%
0.5: 1.0 but less than 0.55: 1.0
- ----------------------------------------- ----------------------------
Greater than or equal to 0.825%
0.55:1.0
- ----------------------------------------- ----------------------------
provided, however, that:
(a) The Applicable Margin in effect as of the date of
execution and delivery of this Agreement is .55% for Revolving Loan
Commitments, and such percentage shall remain in effect until such time
as the Applicable Margin may be adjusted as hereinafter provided; and
(b) Adjustments, if any, to the Applicable Margin based on
changes in the ratios set forth above shall be made and become
effective (i) on the first day of the fiscal quarter immediately
following delivery of the financial statements required pursuant to
3
<PAGE>
Section 6.07(b), and (ii) on the first day of the second fiscal quarter
immediately following the last day of any fiscal year of Borrower.
(c) Notwithstanding the foregoing, at any time during which
Borrower has failed to deliver the financial statements and
certificates when required by Section 6.07(a) and (b), as the case may
be, the Applicable Margin shall be 0.825% until such time as the
delinquent financial statements are delivered at which time the
Applicable Margin shall be reset as provided above.
"ASBESTOS LAWS" means the common law in all federal, state and
local and foreign jurisdictions and other laws in such jurisdictions, and
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, now or hereafter in affect relating
to or concerning asbestos or asbestos-containing material, including without
limitation, exposure to asbestos or asbestos-containing material.
"ASSET VALUE" shall mean, with respect to any property or
asset of any Consolidated Company as of any particular date, an amount equal to
the greater of (i) the then book value of such property or asset as established
in accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors of such Consolidated
Company.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in accordance with
the terms of this Agreement and substantially in the form of Exhibit D.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C.ss. 101 et seq..).
"BASE RATE" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates) the higher
of (a) the rate which the Administrative Agent designates from time to time to
be its prime lending rate, as in effect from time to time, and (b) the Federal
Funds Rate, as in effect from time to time, plus one-half of one percent
(0.500A) per annum. The Administrative Agent's prime lending rate is a reference
rate and does not necessarily represent the lowest or best rate charged to
customers; Administrative Agent may make commercial loans or other loans at
rates of interest at, above or below the Administrative Agent's prime lending
rate.
"BASE RATE ADVANCE" shall mean an Advance bearing interest
based on the Base Rate.
"BASE RATE LOAN" shall mean any Revolving Loan hereunder which
bears interest at the Base Rate.
"BORROWING" shall mean the incurrence by Borrower under any
Facility of Advances of one Type concurrently having the same Interest Period or
the continuation or conversion of an existing Borrowing or Borrowings in whole
or in part.
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"BUSINESS DAY" shall mean, with respect to Eurodollar Loans,
any day other than a day on which commercial banks are closed or required to be
closed for domestic and international business, including dealings in Dollar
deposits on the London interbank market, and with respect to all other Revolving
Loans and matters, any day other than Saturday, Sunday and a day on which
commercial banks are required to be closed for business in Atlanta, Georgia, or
Orlando, Florida.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all lease
obligations which have been or are required to be, in accordance with GAAP,
capitalized on the books of the lessee.
"CERCLA" has the meaning set forth in Section 5.15(a) of this
Agreement.
"CHANGE IN CONTROL PROVISION" shall mean any term or provision
contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Indebtedness of Borrower evidencing debt or a commitment
to extend loans in excess of $5,000,000 Which requires, or pen-nits the
holder(s) of such Indebtedness of Borrower to require that such Indebtedness of
Borrower be redeemed, repurchased, defeased, prepaid or repaid, either in whole
or in part, or the maturity of such Indebtedness of Borrower to be accelerated
in any respect, as a result of a change in ownership of the capital stock of
Borrower or voting rights with respect thereto.
"CLOSING DATE" shall mean the date on or before January 26,
1999, on which the initial Revolving Loans are made and the conditions set forth
in Section 4.01 are satisfied or waived in accordance with Section 10.02.
"CO-AGENT" shall mean SouthTrust Bank, National Association, a
national banking association, as co-agent for the Lenders hereunder and under
the other Credit Documents, and each successor co-agent.
"COMMITMENT LETTER" shall mean that certain letter agreement,
dated as of December 21, 1998, executed by SunTrust Equitable Securities
Corporation, SunTrust Bank, Central Florida, National Association and First
Union National Bank and acknowledged and agreed to by the Borrower.
"COMPETITIVE BID ADVANCE" shall mean an Advance bearing
interest based on a Competitive Bid Rate.
"COMPETITIVE BID LOANS" shall mean Revolving Loans made by a
Lender on a competitive bid basis as provided in Article 11.
"COMPETITIVE BID NOTE" shall mean a promissory note evidencing
Competitive Bid Loans in the form attached hereto as Exhibit B.
"COMPETITIVE BID RATE" shall mean the interest rate charged by
a Lender on a Competitive Bid Loan.
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"CONSOLIDATED AMORTIZATION" shall mean, for any fiscal period
of the Borrower, amortization of the Consolidated Companies for such period
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower
and all of its Subsidiaries.
"CONSOLIDATED DEPRECIATION" shall mean, for any fiscal period
of the Borrower, depreciation of the Consolidated Companies for such period
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED EBITR" shall mean, for any fiscal period of the
Borrower, an amount equal to Consolidated Net Income (Loss) for such period,
plus, to the extent deducted in determining Consolidated Net Income (Loss), (i)
Consolidated Tax Expense for such period, (ii) Consolidated Interest Expense for
such period, and (iii) Consolidated Rental Expense for such period.
"CONSOLIDATED EBITDAR" shall mean, for any fiscal period of
the Borrower, an amount equal to Consolidated Net Income (Loss) for such period
PLUS to the extent deducted in determining Consolidated Net Income (Loss), (i)
Consolidated Interest Expense for such period, (ii) Consolidated Tax Expense for
such period, (iii) Consolidated Depreciation for such period, (iv) Consolidated
Amortization for such period and (v) Consolidated Rental Expense for such
period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal
period of Borrower, total interest expense (including without limitation,
interest expense attributable to capitalized leases in accordance with the GAAP
and any program costs incurred by Borrower in connection with sales of accounts
receivable pursuant to a securitization program) of the Consolidated Companies
for such period, determined on a consolidated basis.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal
period of Borrower, the net income (or loss) of the Consolidated Companies for
such period (taken as a single accounting period) determined on a consolidated
basis in conformity with GAAP; PROVIDED THAT there shall be excluded therefrom
(i) any items of gain or loss which were included in determining such
Consolidated Net Income and were not realized in the ordinary course of business
or the result of a sale of assets other than in the ordinary course of business;
and (ii) the income (or loss) of any party accrued prior to the date such
becomes a Subsidiary of Borrower or is merged into or consolidated with Borrower
or any of its Subsidiaries, or such party's assets are acquired by any
Consolidated Company, unless such party is acquired in a transaction accounted
for as a pooling of interests.
"CONSOLIDATED NET WORTH" shall mean as of the date of
determination, the Borrower's total shareholder's equity of such date as
determined in accordance with GAAP.
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"CONSOLIDATED RENTAL EXPENSE" shall mean, for any fiscal
period of Borrower total operating lease expense of the Consolidated Companies
for such period, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED TAX EXPENSE" shall mean, for any fiscal period
of the Borrower, tax expense of the Consolidated Companies for such period
determined on a consolidated basis in accordance with GAAP.
"CONTRACTUAL OBLIGATION" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement,
the Revolving Notes, the Guaranty Agreements, and all other Guaranty Documents,
if any.
"CREDIT PARTIES" shall mean, collectively, each of Borrower,
the Guarantors, and every other Person who, from time to time, executes a Credit
Document with respect to all or any portion of the Obligations.
"DEFAULT" shall mean any condition or event which, with notice
or lapse of time or both, would constitute an Event of Default.
"DOCUMENTATION AGENT" shall mean First Union National Bank, a
national backing association, as documentation agent for the Lenders hereunder
and under the other Credit Documents, and each successor documentation agent.
"DOLLAR" AND "U.S. DOLLAR" and the sign "$" shall mean lawful
money of the United States of America.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized
under the laws of the United States of America, or any state thereof, or
organized under the laws of any other country with a Lending Office in the
United States of America, having total assets in excess of $1,000,000,000 or any
commercial finance or asset based lending Affiliate of any such commercial bank
and (ii) any Lender or any Affiliate of any Lender.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, Asbestos Laws), relating to pollution or protection of the
environment and relating to public health and safety, relating to (i) emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial toxic or hazardous constituents, substances or wastes,
including without limitation, any Hazardous Substance, petroleum including crude
oil or any fraction thereof, any petroleum product or other waste, chemicals or
substances regulated by any Environmental Law into the environment (including
without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any Hazardous
Substance, petroleum including crude
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oil or any fraction thereof, any petroleum product or other waste, chemicals or
substances regulated by any Environmental Law, and (iii) underground storage
tanks and related piping, and emissions, discharges and releases or threatened
releases therefrom, such Environmental Laws to include, without limitation (i)
the Clean Air Act (42 U.S.C. ss. 7401 et seq.), (ii) the Clean Water Act (33
U.S.C. ss. 1251 et seq.), (iii) the Resource Conservation and Recovery Act (42
U.S.C. ss. 6901 et seq..), (iV) the Toxic Substances Control Act (15 U.S.C. ss.
2601 et seq.) and (v) the Comprehensive Environmental Response Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act
(42 U.S.C. ss. 9601 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) which is a member of a group of
which that Person is a member and which is under common control within the
meaning of the regulations promulgated under Section 414 of the Tax Code.
"EURODOLLAR ADVANCE" shall mean an Advance bearing interest
based on the Adjusted LIBO Rate.
"EURODOLLAR LOAN" shall mean any Revolving Loan hereunder
which bears interest based on the Adjusted LIBO Rate.
"EVENT OF DEFAULT" shall have the meaning set forth in Article
VIII.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute thereto.
"EXECUTIVE OFFICER" shall mean with respect to any Person
(other than a Guarantor), the President, Vice Presidents, Chief Financial
Officer, Treasurer, Secretary and any Person holding comparable offices or
duties, and with respect to a Guarantor, the President.
"EXTENSION OF CREDIT" shall mean the making of a Revolving
Loan or the conversion of a Revolving Loan of one Type into a Revolving Loan of
another Type.
"FACILITY" OR "FACILITIES" shall mean the Revolving Loan
Commitments and Revolving Loans.
"FACILITY FEE" shall have the meaning assigned to such term in
Section 3.06(a).
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on
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such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"FEE LETTER" shall mean that certain letter agreement, dated
as of December 21, 1998, executed by SunTrust Equitable Securities Corporation,
SunTrust Bank, Central Florida and First Union National Bank and acknowledged
and agreed to by the Borrower, pursuant to which the Borrower agreed to pay
certain fees set forth in such letter agreement.
"FEES" shall mean, collectively, the Facility Fee and any
other fees specified in the Fee Letter.
"FINAL MATURITY DATE" shall mean the date on which all
commitments have been terminated and all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
pursuant to the provisions of Article VIII.
"FIXED CHARGE COVERAGE RATIO" shall mean, as of any date of
determination, the ratio of (A) Consolidated EBITDAR to (B) the sum of (i)
Consolidated Interest Expense plus (ii) Consolidated Rental Expense, in each
case measured for the four fiscal quarter period ending on such date (or if such
date is not the last day of any fiscal quarter, for the four fiscal quarter
period ending immediately prior to such date).
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease, dividend, or
other obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner including, without limitation, any obligation or
arrangement of such Person (a) to purchase or repurchase any such primary
obligation, (b) to advance or supply funds (i) for the purchase or payment of
any such primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet condition of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) to indemnify the owner of such
primary obligation against loss in respect thereof.
"GUARANTORS" shall mean, collectively, each Material
Subsidiary of the Borrower that has executed the Guaranty Agreement as of the
Closing Date, together with all other Material Subsidiaries that hereafter
execute supplements to the Guaranty Agreement, and their respective successors
and permitted assigns.
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"GUARANTY AGREEMENT" shall mean the Subsidiary Guaranty
Agreement, dated as of the date hereof, executed by certain of Borrower's
Subsidiaries in favor of the Lenders and the Administrative Agent, as the same
may be amended, restated or supplemented from time to time.
"GUARANTY DOCUMENTS" shall mean, collectively, the Guaranty
Agreement, and each other guaranty agreement, mortgage, deed of trust, security
agreement, pledge agreement, or other security or collateral document
guaranteeing or securing the Obligations, as the same may be amended, restated,
or supplemented from time to time.
"HAZARDOUS MATERIALS" shall mean oil, petroleum or chemical
liquids or solids, liquid or gaseous products, asbestos, or any other hazardous
waste or hazardous substances, including, without limitation, hazardous medical
waste or any other substance described in any Hazardous Materials Law.
"HAZARDOUS MATERIALS LAW" shall mean the Comprehensive
Environmental Response Compensation and Liability Act as amended by the Super
Fund Amendments and Reauthorization Act, 42 U.S.C. ss. 9601, the Resource
Conservation and Recovery Act, 42 U.S.C. ss. 6901, the state hazardous waste
laws, as such laws may from time to time be in effect, and related regulations,
and all similar laws and regulations.
"HAZARDOUS SUBSTANCES" has the meaning assigned to that term
in CERCLA.
"HUGHES FAMILY " shall mean (i) David H. Hughes, Vincent S.
Hughes, Russell V. Hughes, (ii) any of their direct family members (including,
without limitation, lineal ancestors and descendants, siblings, and lineal
descendants of siblings), (iii) any trusts and profit sharing plats and stock
option plans established for the sole benefit of the foregoing, and (iv) the
heirs and personal representatives of the foregoing.
"INDEBTEDNESS" of any Person shall mean, without duplication
(i) all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase price
of property or services, and obligations evidenced by bonds, debentures, notes
or other similar instruments); (ii) all Guaranteed Indebtedness of such Person
(including contingent reimbursements obligations under undrawn financial letters
of credit but not performance letters of credit) (iii) all Capitalized Lease
Obligations; (iv) all Indebtedness of others secured by any Lien upon property
owned by such Person, whether or not assumed; and (v) all obligations or other
liabilities under currency contracts, interest rate contracts, interest rate
protection agreements, or similar agreements or combinations thereof.
Notwithstanding the foregoing, in determining the Indebtedness of any Person,
there shall be included all obligations of such Person of the character referred
to in clauses (i) through (v) above deemed to be extinguished under GAAP but for
which such Person remains legally liable except to the extent that such
obligations (x) have been defeased in accordance with the terms of the
applicable instruments governing such obligations and (y) the accounts or other
assets dedicated to such defeasance are not included as assets on the balance
sheet of such Person.
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"INTERCOMPANY LOAN DOCUMENTS" shall mean, collectively, the
promissory notes and all related loan, subordination, and other agreements, to
the extent that they exist, relating in any manner to the Intercompany Loans.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans
more particularly described on Schedule 5.22 and (ii) those loans or other
extensions of credit made by any Consolidated Company to another Consolidated
Company satisfying the terms and conditions set forth in Section 7.01 or as may
otherwise be approved in writing by the Administrative Agent and the Required
Lenders.
"INTEREST PERIOD" shall mean (i) with respect to Competitive
Bid Loans, such periods agreed upon between Borrower and Lenders, and (ii) with
respect to Eurodollar Advances, the period of 1, 2, 3 or 6 months selected by
the Borrower, in case of clause (ii) pursuant to the terms of the credit
facility and subject to customary adjustments in duration; provided, that (a)
the first day of an Interest Period must be a Business Day, (b) any Interest
Period that would otherwise end on 4 day that is not a Business Day for
Eurodollar Loans shall be extended to the next succeeding Business Day for
Eurodollar Loans, unless such Business Day falls in the next calendar month, in
which case the Interest Period shall end on the next preceding Business Day for
Eurodollar Loans, and (c) Borrower may not elect an Interest Period that would
extend beyond the Revolving Credit Termination Date.
"INVESTMENT" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"LENDER" OR "LENDERS" shall mean the banks and lending
institutions listed on the signature pages hereof, and each assignee thereof, if
any, pursuant to Section 10.06.
"LENDING OFFICE" shall mean for each Lender the office such
Lender may designate in writing from time to time to Borrower and the
Administrative Agent with respect to each Type of Revolving Loan.
"LEVERAGE RATIO" shall mean, as of any date of determination,
the ratio of Total Funded Debt as of such date to Total Capitalization as of
such date.
"LIBOR" shall mean, for any Interest Period, the offered rates
for deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Telerate Page 3750, as of I 1:00 a.m. London time on the day
that is two business days prior to the Interest Period. If at least two such
rates appear on the Telerate Page 3750, the rate for that Interest Period will
be the arithmetic mean of such rates, rounded, if necessary, to the next higher
1/16 of 1.0%. If the foregoing rate is unavailable from the Telerate Page 3750
for any reason, then such rate shall be determined by the Administrative Agent
from the Reuters Screen LIBOR Page, or if such rate is
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also unavailable on such service, then on any other interest rate reporting
service of recognized standing designated in writing by the Administrative Agent
to Borrower and the Lenders; it any such case rounded, if necessary, to the next
higher 1/16 of 1.0%, if the rate is not such a multiple.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lion or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capital lease in the nature thereof
including any lease or similar arrangement with a public authority executed in
connection with the issuance of industrial development revenue bonds or
pollution control revenue bonds, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
"LINE OF CREDIT AGREEMENT" shall mean that certain Line of
Credit Agreement, dated as of the date hereof, by and among Borrower, SunTrust
Bank, Central Florida, as Administrative Agent, First Union National Bank, as
Documentation Agent, NationsBank N.A., as Syndication Agent, SouthTrust Bank,
National Association, as Co-Agent, and the banks and lending institutions from
time to time parties thereto, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"MATERIALLY ADVERSE EFFECT" shall mean the occurrence of an
event, which would (i) cause the recognition of a liability, as required by
Statement of Financial Accounting Standard No. 5, in the current quarter
financial statements in the amount of $15,000,000 or more, or (ii) cause an
auditor to have a substantial doubt about the ability of Borrower to continue as
a going concern after consideration of management's plans as described in
Statement of Auditing Standards, No. 50.
"MATERIAL SUBSIDIARY" shall mean each Subsidiary of Borrower,
now existing or hereinafter established or acquired, that at any time prior to
the Final Maturity Date, has or acquires total assets in excess of $1,000,000 or
that accounted for or produced more than 5% of the Consolidated EBITR of
Borrower on a consolidated basis during any of the three most recently completed
fiscal years of Borrower.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NOTICE OF BORROWING" shall have the meaning provided in
Section 3.01.
"NOTICE OF CONTINUATION/CONVERSION" shall have the meaning
provided in Section 3.01.
"OBLIGATIONS" shall mean all amounts owing to the Agents and
all Lenders pursuant to the terms of this Agreement or any other Credit
Document, including without limitation, all Revolving Loans (including all
principal and interest payments due thereunder), fees, expenses, indemnification
and reimbursement obligations, payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute or contingent,
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liquidated or unliquidated, now existing or hereafter arising, together with all
renewals, extensions, modifications or refinancings thereof
"PAYMENT OFFICE" shall mean, for any Lender, the "Payment
Office" listed on its signature page to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
and any successor thereto.
"PERMITTED LIENS" shall mean those Liens expressly permitted
by Section 7.02.
"PERSON" shall mean and shall include an individual, a
partnership, a joint venture, a corporation, a trust., an unincorporated
association, a government or any department or agency thereof and any other
entity whatsoever.
"PLAN" shall mean any employee benefit plan, program,
arrangement, practice or contract, maintained by or on behalf of the Borrower or
an ERISA Affiliate, which provides benefits or compensation to or on behalf of
employees or former employees, whether formal or informal, whether or not
written, including but not limited to the following types of plans:
(I) EXECUTIVE ARRANGEMENTS - any bonus, incentive
compensation, stock option, deferred compensation, commission,
severance, "golden parachute", "rabbi trust", or Other executive
compensation plan, program, contract, arrangement or practice;
(II) ERISA PLANS - any "employee benefit plan" as defined in
Section 3(5) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension plan,
savings or thrift plan, stock bonus plan, employee stock ownership
plan, Multiemployer Plan, or any plan, fund, program, arrangement or
practice providing for medical (including post-retirement medical),
hospitalization, accident, sickness, disability, or life insurance
benefits;
(III) OTHER EMPLOYEE FRINGE BENEFITS - any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay
or other fringe benefit plan, program, arrangement, contract or
practice.
"PRO RATA SHARE" shall mean, with respect to each of the
Revolving Loan Commitments of each Lender and each Loan to be made by and each
payment (including, without limitation, any payment of principal, interest or
fees) to be made to each Lender, the percentage designated as such Lender's Pro
Rata Share of such Revolving Loan Commitments, such Revolving Loans or such
payments, as applicable, set forth under the name of such Lender on the
respective signature page for such Lender or in any assignment hereafter
executed by an assignee of a Lender pursuant to Section 10.06, in each case as
such Pro Rata Share may change from time to time as a result of assignments or
amendments made pursuant to this Agreement.
"REGULATION D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
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"REQUIRED LENDERS" shall mean, at any time, Lenders holding at
least sixty-six and two-thirds percent (66-2/3%) of the then aggregate amount of
the Revolving Loan Commitments and the aggregate outstanding Revolving Loans.
"REQUESTED COMMITMENT AMOUNT" shall have the meaning assigned
to it in Section 3.03.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"REUTERS SCREEN" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuter Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"REVOLVING, LOANS" or "Loans" shall mean, collectively, the
revolving credit loans made to Borrower by the Lenders pursuant to Section 2.01.
"REVOLVING LOAN COMMITMENT" or "COMMITMENT" shall mean, at any
time for any Lender, the amount of such commitment set forth opposite such
Lender's name on the signature pages hereof or in any assignment hereafter
executed by any assignee of a Lender pursuant to Section 10.06, as the same may
be increased or decreased from time to time as a result of any reduction thereof
pursuant to Section 2.03, any assignment thereof pursuant to Section 10.06, or
any amendment thereof pursuant to Section 10.02.
"REVOLVING LOAN TERMINATION DATE" shall mean the earlier of
(i) January 25, 2004 and (ii) the date on which the Revolving Loan Commitments
are terminated in accordance with Article VIII.
"REVOLVING NOTE" OR "NOTE" shall mean any of the Syndicate
Notes or Competitive Bid Notes either as originally executed or as the same may
be from time to time supplemented, modified, amended, renewed or extended.
"SUBORDINATED DEBT" shall mean all Indebtedness of Borrower
and its Subsidiaries subordinated to all obligations of Borrower and its
Subsidiaries or any other Credit Party arising under this Agreement, the
Revolving Notes and the Guaranty Agreement on terms and conditions satisfactory
in all respects to the Administrative Agent and the Required Lenders, including
without limitation, with respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Administrative Agent and
Required Lenders.
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"SUBSIDIARY" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all classes
of voting stock or other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such Person, either directly
or indirectly through one or more other Subsidiaries.
"SYNDICATE LOANS" shall mean, collectively, the Revolving
Loans made to Borrower hereunder other than Competitive Bid Loans.
"SYNDICATE NOTE" shall mean a promissory note evidencing
Syndicate Loans in the form attached hereto as Exhibit A.
"SYNDICATION AGENT" shall mean NationsBank, N.A., a national
banking association, as syndication agent for the Lenders hereunder and under
the other Credit Documents, and each successor syndication agent.
"TAX CODE" shall mean the Internal Revenue Code of 1986, as
amended and in affect from time to time.
"TAXES" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, Social security and
franchise taxes now or hereafter imposed or levied by the United States of
America, or any state, local or foreign government or by any department, agency
or other political subdivision or taxing authority thereof or therein and all
interest, penalties, additions to tax and similar liabilities with respect
thereto.
"TELERATE" shall mean, when used in connection with any
designated page and "LIBOR," the display page so designated on the Dow Jones
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to "LIBOR").
"TOTAL CAPITALIZATION" shall mean, as of any date of
determination, the sum of (i) Total Funded Debt plus (ii) Consolidated Net Worth
as of such date.
"TOTAL COMMITMENT" shall mean the sum of the Lenders'
Revolving Loan Commitments as such Total Commitment may be reduced by voluntary
reduction, prepayment or nonrenewal of a Lender's Revolving Loan Commitment as
provided herein.
"TOTAL FUNDED DEBT" shall mean all Indebtedness of the
Consolidated Companies that by its terms or by the terms of any instrument or
agreement relating thereto matures, or which is otherwise payable or unpaid, one
year or more from, or is directly or indirectly renewable or extendable at the
option of the debtor to a date one year or more (including an option of the
debtor under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of one year or more) from, the date of
the creation thereof,
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provided that Total Funded Debt shall include, as at any date of determination,
any portion of such Indebtedness outstanding on such date which matures on
demand or within one year from such date (whether by sinking fund, other
required prepayment, or final payment at maturity) and shall also include all
Indebtedness of the Consolidated Companies for borrowed money under a line of
credit, guidance line, revolving credit, bankers acceptance facility or similar
arrangement for borrowed money, including, without limitation, all unpaid
drawings under letters of credit and unreimbursed amounts pursuant to letter of
credit reimbursement agreements, regardless of the maturity date thereof.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances, Eurodollar Advances or Competitive Bid Advances.
"UNITED STATES OF AMERICA" shall mean the fifty (50) States
and the District of Columbia
"WHOLLY OWNED SUBSIDIARY" shall mean any Subsidiary, all the
stock or ownership interest of every class of which, except directors'
qualifying shares, shall, at the time as of which any determination is being
made, be owned by Borrower either directly or indirectly.
"YEAR 2000 ISSUES" shall mean the actual and anticipated
costs, claims, losses, and liabilities associated with the inability of certain
computer and software applications to effectively handle data that includes
dates prior to, on, spanning or after January 1, 2000, as such inability in
respect of any Consolidated Company affects the business, operations, and
financial conditioner any Consolidated Company. SECTION 1.02 ACCOUNTING TERMS
AND DETERMINATION. Unless otherwise defined or specified herein, all accounting
terms shall be construed herein, all accounting determinations hereunder shall
be made, all financial statements required to be delivered hereunder shall be
prepared, and all financial records shall be maintained in accordance with,
GAAP.
SECTION 1.03 OTHER DEFINITIONAL TERMS. The words "hereof',
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule, Exhibit and like references are
to this Agreement unless otherwise specified.
SECTION 1.04 EXHIBITS AND SCHEDULES. All Exhibits and
Schedules attached hereto are by reference made a part hereof
ARTICLE II.
REVOLVING LOAN COMMITMENTS
SECTION 2.01 REVOLVING LOAN COMMITMENTS, USE OF PROCEEDS.
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(a) Subject to and upon the terms and conditions herein set
forth, each Lender severally agrees to make to Borrower from time to
time on and after the Closing Date, but prior to the Revolving Loan
Termination Date, Revolving Loans in an aggregate amount outstanding at
any time not to exceed such Lender's Revolving Loan Commitment.
Borrower shall be entitled to repay and reborrow Revolving Loans in
accordance with the provisions hereof.
(b) Each Revolving Loan shall, at the option of Borrower, be
made or continued as, or converted into, part of one or more Borrowings
that shall consist entirely of Syndicate Loans (comprised of Base Rate
Advances or Eurodollar Advances) or Competitive Bid Loans. The
aggregate principal amount of each Borrowing of Revolving Loans
comprised of Eurodollar Advances shall not be less than $5,000,000 or a
greater integral multiple of $1,000,000. The aggregate principal amount
of each Borrowing of Competitive Bid Loans shall not be less than
$5,000,000. The aggregate principal amount of each Borrowing of
Revolving Loans comprised of Base Rate Advances shall not be less than
$ 1,000,000 or a greater integral multiple of $ 1,000,000. At no time
shall the number of Borrowings outstanding under this Article II exceed
ten; provided that, for the purpose of determining the number of
Borrowings outstanding and the minimum amount for Borrowings resulting
from conversions or continuations, all Borrowings of Base Rate Advances
under this Facility shall be considered as one Borrowing. The parties
hereto agree that (i) the aggregate principal balance of the Revolving
Loans (including the Competitive Bid Loans) of the Lenders as a group
shall not exceed the aggregate principal amount of all Revolving Loan
Commitments, (ii) no Lender shall be obligated to make Syndicate Loans
in excess of the Revolving Loan Commitment of such Lender, (iii) no
Lender shall be obligated hereunder to extend Competitive Bid Loans or
to make quotes for such Competitive Bid Loans, and (iv) a Lender may
elect, in its discretion, to extend Competitive Bid Loans which, either
alone or together with the Syndicate Loans of such Lender, exceed the
Revolving Loan Commitment of such Lender.
(c) The proceeds of Revolving Loans shall be used solely to
refinance existing indebtedness, to fund future acquisitions, to fund
share repurchase agreements, to fund the working capital needs of the
Borrower and its Subsidiaries, and for general corporate purposes.
SECTION 2.02 SYNDICATE NOTE; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and
interest on, the Syndicate Loans and the Competitive Bid Loans to each
Lender shall be evidenced by the records of the Administrative Agent
and such Lender and by the Syndicate Note and the Competitive Bid Note,
respectively, payable to such Lender (or the assignor of such Lender)
completed in conformity with this Agreement.
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(b) All outstanding principal amounts under the Revolving
Loans shall be due and payable in full at the earlier of (i) the
Revolving Loan Termination Date or (ii) acceleration of the
indebtedness as provided in Article VIII.
SECTION 2.03 VOLUNTARY REDUCTION OF REVOLVING LOAN
COMMITMENTS. Upon at least three (3) Business Days' prior telephonic notice
(promptly confirmed in writing) to the Administrative Agent, Borrower shall have
the right, without premium or penalty, to terminate the Revolving Loan
Commitments, in part or in whole, provided that (i) any such termination shall
Apply to proportionately and permanently reduce the Revolving Loan Commitments
of each of the Lenders, (ii) any partial termination pursuant to this Section
2.03 shall be in an amount of at least $5,000,000 and integral multiples of
$1,000,000, and (iii) no such reduction shall be permitted if prohibited or
without payment of all costs required to be paid hereunder with respect to a
prepayment. If the aggregate outstanding amount of the Revolving Loans exceeds
the amount Of the Revolving Loan Commitments as so reduced, Borrower shall
immediately repay the Revolving Loans by an amount equal to such excess,
together with all accrued but unpaid interest on such excess amount and any
amounts due under Section 3.13 hereof
ARTICLE III.
GENERAL LOAN TERMS
SECTION 3.01 FUNDING NOTICES.
(a) (i) Whenever Borrower desires to make a Borrowing of
Syndicate Loans under its Revolving Loan Commitments (other than one
resulting from a conversion or continuation pursuant to Section
3.01(b)(i)), it shall give the Administrative Agent prior written
notice (or telephonic notice promptly confirmed in writing) of such
Borrowing (a "Notice of Borrowing") at its Payment Office such Notice
of Borrowing to be given prior to (x) I 1:00 A.M. (local time for the
Administrative Agent) one (1) Business Day prior to the requested date
of such Borrowing in the case of Base Rate Advances, (y) 11:00 A.M.
(local time for the Administrative Agent) three (3) Business Days prior
to the requested date of such Borrowing in the case of Eurodollar
Advances and (z) prior to 1:00 P.M. (local time for the Administrative
Agent) on the requested date of such Borrowing in the case of
Competitive Bid Advances. Notices received after 1 1:00 A.M. for Base
Rate Advances and Eurodollar Advances and 1:00 P.M. for Competitive Bid
Advances shall be deemed received on the next Business Day. Each Notice
of Borrowing shall be irrevocable and shall specify the aggregate
principal amount of the Borrowing, the date of Borrowing (which shall
be a Business Day), and whether the Borrowing is to consist of Base
Rate Advances or Eurodollar Advances and (in the case of Eurodollar
Advances) the Interest Period to be applicable thereto.
(ii) Whenever Borrower desires to make a Borrowing of
Competitive Bid Loans under its Revolving Loan Commitments (other than one
resulting from a conversion or continuation pursuant to Section
3.01(b)(ii)), it shall give the Administrative Agent notice
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that the Lenders are requested to provide Competitive Bid Rates for
Interest Periods identified by Borrower, such Interest Periods not to
exceed 180 days. Notices must comply with notice requirements of each
respective Lender, which shall be communicated by Lenders to Borrower from
time to time. Each Lender in its discretion may, but shall not be obligated
to, submit a quote to the Borrower in connection with such request. The
Borrower shall then be entitled, in its sole discretion, to elect to incur
all or any part of the Competitive Bid Loan offered by one or more of the
Lenders that have elected to provide quotes for any of the Interest Periods
and at the rate(s) quoted by such Lender(s). The Competitive Bid Loans
incurred by the Borrower in connection with such a request for quotes shall
not exceed (i) with respect to all Lenders then providing quotes, the then
unutilized Revolving Loan Commitments of all Lenders as a group, and (ii)
with respect to each Lender providing a quote, the amount bid by such
Lender in connection with such Lender's quote. The Borrower shall notice
the Administrative Agent and such Lender or Lenders of its election in
accordance with the procedures established with such Lender or Lenders,
having no obligation to report the terms thereof; Provided, however, that
if any Borrowing of Eurodollar Advances must be made as Base Rate Advances
as a result of a determination made by the Administrative Agent pursuant to
Section 3.09, such Notice of Borrowing may be revoked by Borrower no later
than one (1) Business Day prior to the date of funding.
(b) (i) Whenever Borrower desires to convert all or a portion
of an outstanding Borrowing of Syndicate Loans under its Revolving Loan
Commitments, Which Borrowing consists of Base Rate Advances into one or
more Borrowings consisting of Eurodollar Advances or to continue
outstanding a Borrowing consisting of Eurodollar Advances for a new
Interest Period, it shall give the Administrative Agent at least three
Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each such Borrowing to be converted into or
continued as Eurodollar Advances. Such notice (a "Notice of
Continuation/Conversion") shall be given prior to I 1:00 A.M. (local
time for the Administrative Agent) on the date specified at the Payment
Office of the Administrative Agent. Each such Notice of
Continuation/Conversion shall be irrevocable and shall specify the
aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation and the Interest
Period applicable thereto. If, upon the expiration of any Interest
Period in respect of any Borrowing, Borrower shall have failed to
deliver the Notice of Continuation/Conversion, Borrower shall be deemed
to have elected to convert or continue such Borrowing to a Borrowing
consisting of Base Rate Advances. So long as any Executive Officer of
Borrower has knowledge that any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into or
continued as (upon expiration of the current Interest Period)
Eurodollar Advances unless the Administrative Agent and each of the
Lenders shall have otherwise consented in writing. No conversion of any
Borrowing of Eurodollar Advances shall be permitted except on the last
day of the interest Period in respect thereof
(ii) Whenever Borrower desires to continue all or a
portion of an outstanding Borrowing of Competitive Bid Loans under its
Revolving Loan Commitments, for a new Interest Period, it may request that
the Lenders provide quotes for Competitive Bid Rates in the same manner
prescribed in Section 3.01 (a)(ii) for funding. Whenever Borrower desires
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to convert all or a portion of an outstanding Borrowing of Competitive Bid
Loans under its Revolving Loan Commitments into a Borrowing of Syndicate
Loans, it shall comply with the provisions prescribed in Section 3.01(b)(i)
for conversion of Syndicate Loans. If, upon the expiration of any Interest
Period in respect of any Competitive Bid Borrowing, Borrower shall have
failed to deliver the Notice of Continuation/Conversion, or Lenders fail to
provide such quotes, Borrower shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing of a Syndicate Loan consisting of
Base Rate Advances. So long as any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into (upon
expiration of the current Interest Period) Eurodollar Advances. No
conversion of any Borrowing into Eurodollar Advances shall be permitted
except on the last day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to
confirm in writing any telephonic notice, the Administrative Agent and
the Lenders may act without liability upon the basis of telephonic
notice believed by the Administrative Agent or the Lender in good faith
to be from Borrower prior to receipt of written confirmation. In each
such case, Borrower hereby waives the right to dispute the
Administrative Agent's and the Lender's record of the terms of such
telephonic notice.
(d) The Administrative Agent shall promptly give each Lender
notice by telephone (confirmed in writing) or by telex, telecopy or
facsimile transmission of the matters covered by the notices given to
the Administrative Agent pursuant to this Section 3.01 with respect to
the Revolving Loan Commitments.
SECTION 3.02 DISBURSEMENT OF FUNDS.
(a) No later than 11:00 A.M. (local time for the
Administrative Agent) on the date of each Borrowing of Syndicate Loans
pursuant to the Revolving Loan Commitments (other than one resulting
from a conversion or continuation pursuant to Section 3.01(b)(i)), each
Lender will make available its Pro Rata Share of the amount of such
Borrowing in immediately available funds at the Payment Office of the
Administrative Agent. The Administrative Agent will make available to
Borrower the aggregate of the amounts (if any) so made available by the
Lenders to the Administrative Agent in a timely manner by crediting
such amounts to Borrower's demand deposit account maintained with the
Administrative Agent or at Borrower's option, to effect a wire transfer
of such amounts to Borrower's account specified by the Borrower, by the
close of business oil such Business Day. In the event that the Lenders
do not make such amounts available to the Administrative Agent by the
time prescribed above, but such amount is received later that day, such
amount may be credited to Borrower in the manner described in the
preceding sentence on the next Business Day (with interest on such
amount to begin accruing hereunder on such next Business Day).
(b) No later than 2:00 P.M. (local time for the applicable
Lender) on the date of each Borrowing of Competitive Bid Loans (other
than one resulting from a conversion or continuation pursuant to
Section 3.01(b)(ii)), the Lender making any Competitive Bid
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Loan will make available the amount of such Borrowing in immediately
available funds by wire transfer to an account specified by the
Borrower on the date of each Borrowing pursuant to the Revolving Loan
Commitments (other than one resulting from a conversion or continuation
pursuant to Section 3.01(b)(ii)).
(c) Unless the Administrative Agent shall have been notified
by the Lender making any Syndicate Loan prior to the date of a
Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of the Borrowing to be made
on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such date and
the Administrative Agent may make available to Borrower a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent by such Lender on the date of Borrowing, the
Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest at the Federal
Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly Notify Borrower, and Borrower shall
immediately pay such corresponding amount to the Administrative Agent
together with interest at the rate specified for the Borrowing. Nothing
in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Revolving Loan Commitments hereunder or to
prejudice any rights which Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(d) All Borrowings of Syndicate Loans shall be loaned by the
Lenders on the basis of their Pro Rata Share of the Revolving Loan
Commitments. All Borrowings of Competitive Bid Loans under the
Revolving Loan Commitments shall be loaned by the Lenders whose quotes
were accepted by the Borrower. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make the Revolving Loans provided to be
made by it hereunder, regardless of the failure of any other Lender to
fund its Revolving Loan Commitments hereunder.
SECTION 3.03 INCREASE OF REVOLVING LOAN COMMITMENTS.
(a) So long as no Event of Default has occurred and is
continuing, Borrower may, at any time by written notice to the
Administrative Agent, who shall promptly notify the Lenders, request
that the Revolving Loan Commitments be increased up to an amount not to
exceed $275,000,000 in the aggregate (the "Requested Commitment
Amount") on a pro rata basis based on the Pro Rata Shares of the
Lenders. No Lender (or any successor thereto) shall have any obligation
to increase its Revolving Loan Commitment or its other obligations
under this Agreement and the other Credit Documents, and any decision
by a Lender to increase its Revolving Loan Commitment shall be made in
its sole discretion independently from any other Lender. Within fifteen
(15) Business Days from each Lender's receipt of such request from the
Borrower, each Lender shall notify the Administrative Agent in writing
of whether or not it will agree to increase its Revolving Loan
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Commitment and by what amount it will agree to increase such Revolving
Loan Commitment, up to its Pro Rata Share of the Requested Commitment
Amount. Decisions to increase a Revolving Loan Commitment must be
affirmatively communicated in writing and shall not be presumed based
upon a failure to respond to Borrower's request.
(b) In the event that the aggregate amount to which the
Lenders are willing to increase their Revolving Loan Commitments is
less than the Requested Commitment Amount based on the written notices
delivered by the Lenders to the Administrative Agent, the
Administrative Agent shall first offer to the Lenders who have agreed
to increase their Revolving Loan Commitments the opportunity to further
increase their Revolving Loan Commitments up to an amount equal to the
Requested Commitment Amount. Such Lenders shall promptly respond in
writing to the Administrative Agent of whether or not it will agree to
further increase its Revolving Loan Commitment and by what amount it
will agree to further increase its Revolving Loan Commitment. Within
five (5) Business Days after receipt of all responses from such
Lenders, the Administrative Agent shall inform the Borrower and all
Lenders in writing of the amount by Which each Lender will increase its
Revolving Loan Commitment.
(c) In the event that the aggregate amount to which the
Lenders are willing to increase their Revolving Loan Commitments is
less than the Requested Commitment Amount based on the notice from the
Administrative Agent to the Borrower and all Lenders, the Borrower
shall have the right, within sixty days (60) after receipt of such
notice from the Administrative Agent, to obtain commitments from new
banks or financial institutions in an aggregate amount such that the
existing Revolving Loan Commitments, plus the aggregate principal
amount by which the Lenders are willing to increase their Revolving
Loan Commitments, plus the aggregate principal amount of the new
commitments by the new banks or financial institutions does not exceed
the Requested Commitment Amount; provided, however, that (1) the new
banks or financial institutions must be acceptable to the
Administrative Agent, which acceptance will not be unreasonably
withhold or delayed, and (2) the new banks or financial institutions
must become parties to this Agreement pursuant to a joinder agreement
in form and substance satisfactory to the Administrative Agent and the
Required Lenders, pursuant to which (x) they shall be granted all of
the rights that existing Lenders have under this Agreement and the
other Credit Documents and (y) they shall assume the same liabilities
and obligations that the existing Lenders have under this Agreement.
SECTION 3.04 INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Syndicate Loans from the respective dates such
principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at rates per annum (on the basis of
a 360-day year) equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from
time to time; and
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(ii) For Eurodollar Advances--The relevant Adjusted LIBO
Rate plus the Applicable Margin.
(b) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Competitive Bid Loans made to Borrower from
the respective dates such principal amounts were advanced to maturity
(whether by acceleration, notice of prepayment or otherwise) at times
and at rates per annum (on the basis of a 360-day year) equal to the
applicable rates agreed upon between Borrower and the Lender making
such Competitive Bid Loans.
(c) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Revolving Loans,
whether Syndicate Loans or Competitive Bid Loans, and all other overdue
amounts owing hereunder, shall bear interest from each date that such
amounts are overdue:
(i) in the case of overdue principal and interest with
respect to all Revolving Loans outstanding as Eurodollar Advances and
Competitive Bid Advances, at the rate otherwise applicable for the
then-cur-rent Interest Period plus an additional two percent (2.0%) per
annum; thereafter at the rate in effect for Base Rate Advances plus an
additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with
respect to all other Revolving Loans outstanding as Base Rate Advances,
and all other Obligations hereunder (other than Revolving Loans), at a
rate equal to the applicable Base Rate plus an additional two percent
(2.0%) per annum;
provided that no Revolving Loan shall bear interest after maturity, whether by
non-payment at scheduled due date, acceleration, notice of prepayment or
otherwise at a rate per annum less then two percent (2.0%) per annum in excess
of the rate of interest applicable thereto at maturity.
(d) Interest on each Revolving Loan shall accrue from and
including the date of such Revolving Loan to, but excluding, the date
of any repayment thereof; provided that, if a Revolving Loan is repaid
on the same day made, one day's interest shall be paid on such
Revolving Loan. Interest on all outstanding Base Rate Advances shall be
payable quarterly in arrears on the last calendar day of each fiscal
quarter of Borrower in each year. Interest on all outstanding
Eurodollar Advances and Competitive Bid Advances shall be payable on
the last day of each Interest Period applicable thereto, and, in the
case of Eurodollar Advances having an Interest Period in excess of
three months, on each day which occurs every three months, as the case
may be, after the initial date of such Interest Period. Interest on all
Revolving Loans shall be payable on any conversion of any Advances
comprising such Revolving Loans into Advances of another Type,
prepayment (on the amount prepaid), at maturity (whether by
acceleration, notice of prepayment or otherwise) and, after maturity,
on demand.
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(e) The Administrative Agent, upon determining the Adjusted
LEBO Rate for any interest Period, shall promptly notify by telephone
(confirmed in writing) or in writing Borrower and the other Lenders.
Any such determination shall, absent manifest error, be final,
conclusive and binding for all purposes. A Lender making a Competitive
Bid Loan has no obligation to notice any other Lender of the interest
rates charged to Borrower.
SECTION 3.05 INTEREST PERIODS.
(a) In connection with the making or continuation of, or
conversion into, each Borrowing of Syndicate Loans comprised of
Eurodollar Advances, Borrower shall select an interest period (each an
"Interest Period") to be applicable to such Eurodollar Advances, which
Interest Period shall be either a 1, 2, 3 or 6 month period; provided
that:
(i) The initial Interest Period for any Borrowing of
Eurodollar Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting of
Advances of another Type) and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the
next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, provide that if any Interest Period
in respect of Eurodollar Advances would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar
Advances which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period shall, subject to part (iv) below, expire on the last Business
Day of such calendar month;
(iv) No Interest Period shall extend beyond any date upon
which any principal payment is due with respect to the Revolving Loans.
(b) When Borrower requests a quote for a Competitive Bid Loan,
the Borrower shall specify the Interest Period to be applicable to such
Revolving Loan, which Interest Period shall be as agreed upon by the
Borrower and such Lender; provided, however, that (i) no Interest
Period shall exceed 180 days, (ii) no Interest Period shall extend
beyond the Revolving Loan Termination Date and (iii) if any Interest
Period would otherwise expire on a day which is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day.
Interest shall be payable in respect of each Competitive Bid Loan on
the last day of each Interest Period applicable to such Competitive Bid
Loan, and at maturity (whether by acceleration or otherwise).
SECTION 3.06 FEES.
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(a) Borrower shall pay to the Administrative Agent, for the
account of and distribution of the respective Pro Rata Share to each
Lender, a facility fee (the "Facility Fee") for the period commencing
on the Closing Date to and including the Revolving Loan Termination
Date, equal to (i) the Applicable Facility Fee Percentage per annum
MULTIPLIED by (ii) on the daily average of the aggregate Revolving Loan
Commitments of the Lenders, such fee being payable quarterly in arrears
on the last calendar day of each fiscal quarter of Borrower and on the
Revolving Loan Termination Date.
(b) Borrower shall pay to the Administrative Agent such other
fees as are specified, and in accordance with, the Fee Letter.
SECTION 3.07 VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Borrower may, at its option, prepay Borrowings consisting
of Base Rate Advances at any time in whole, or from time to time in
part, in amounts aggregating $2,500,000 or any greater integral
multiple of $500,000, by paying the principal amount to be prepaid
together with interest accrued and unpaid thereon to the date of
prepayment. Those Borrowings consisting of Eurodollar Advances may be
prepaid, at Borrower's option, in whole, or from time to time in part,
in amounts aggregating $5,000,000 or any greater integral multiple of
$1,000,000, by paying the principal amount to be prepaid, together with
interest accrued and unpaid thereon to the date of prepayment and all
compensation payments pursuant to Section 3.13 if such prepayment is
made on a date other than the last day of an Interest Period applicable
thereto. Each such optional prepayment shall be applied in accordance
with Section 3.07(c) below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Administrative Agent of any intended
prepayment of (i) Base Rate Advances not less than one Business Day
prior to any such prepayments and (ii) Eurodollar Advances not less
than three Business Days prior to any such prepayment. Borrower shall
give written notice (or telephonic notice confirmed in writing) to the
respective Lender who made any Competitive Bid Loan of any intended
prepayment of such Competitive Bid Loan not less than one Business Day
prior to any prepayment of such Competitive Bid Loan. Such notice, once
given, shall be irrevocable. Upon receipt of such notice of prepayment
pursuant to the first sentence of this paragraph (b), the
Administrative Agent shall promptly notify each Lender of the contents
of such notice and of such Lender's share of such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to
Section 3.07(b) may designate the Types of Advances and the specific
Borrowing or Borrowings which are to be prepaid, provided that (i) if
any prepayment of Eurodollar Advances made pursuant to a single
Borrowing of the Revolving Loans shall reduce the outstanding Advances
made pursuant to such Borrowing to an amount less than $1,000,000, such
Borrowing shall immediately be converted into Base Rate Advances; and
(ii) each prepayment made pursuant to a single Borrowing shall be
applied pro rata among the Revolving Loans comprising such Borrowing,
if such prepayment is not a prepayment of
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a Competitive Bid Loan. All voluntary prepayments shall be applied to
the payment of any unpaid interest before application to principal.
SECTION 3.08 PAYMENTS, ETC.
(a) (i) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other
than the payments specified in clause (ii) below, shall be made without
defense, set-off or counterclaim to the Administrative Agent, not later
than 2:00 P.M. (local time for the Administrative Agent) on the date
when due and shall be made in Dollars in immediately available funds at
the respective Payment Office.
(ii) Except as otherwise specifically provided herein, all payments
under this Agreement with respect to the Lenders making any Competitive Bid
Loans shall be made without defense, set-off or counterclaim to such Lender not
later than 2:00 P.M. (local time for such Lender) on the date when due and in
immediately available funds at its Payment Office or at any other location of
the Lender as such Lender may specify in writing to Borrower not later than
12:00 Noon (local time for the Lender) on the Business Day such payment is due.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this
Agreement, the Revolving Notes or other Credit Documents, or any
payments of principal, interest, fees or other amounts payable
hereunder or thereunder (but excluding any Taxes imposed on the overall
net income of the Lenders pursuant to the laws of the jurisdiction in
which the principal executive office or appropriate Lending Office of
such Lender is located). If any Taxes are so levied or imposed,
Borrower agrees (A) to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every net payment of all
amounts due hereunder and under the Revolving Notes and other Credit
Documents, after withholding or deduction for or on account of any such
Taxes (including additional sums payable under this Section 3.08), will
not be less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant
authority in accordance with applicable law. Borrower will furnish to
the Administrative Agent and each Lender, within 30 days after the date
the payment of any Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by Borrower. Borrower
will indemnify and hold harmless the Administrative Agent and each
Lender and reimburse the Administrative Agent and each Lender upon
written request for the amount of any Taxes so levied or imposed and
paid by the Administrative Agent or Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or illegally
asserted. A certificate as to the amount of such payment by such Lender
or the Administrative Agent, absent manifest error, shall be final,
conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America agrees to furnish to
Borrower and the Administrative Agent, prior
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to the time it becomes a Lender hereunder, two copies of either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any
successor forms thereto (wherein such Lender claims entitlement to complete
exemption from or reduced rate of U.S. Federal withholding tax on interest paid
by Borrower hereunder) and to provide to Borrower and the Administrative Agent a
new Form 4224 or Form 1001 or any successor forms thereto if any previously
delivered form is found to be incomplete or incorrect in any material respect or
upon the obsolescence Of any previously delivered form; provided, however, that
no Lender shall be required to furnish a form under this paragraph (ii) if it is
not entitled to claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an exemption from or a
reduced rate of withholding under applicable law, promptly upon written request
of Borrower, shall so inform Borrower in writing.
(c) Subject to Section 3.05(a)(ii), whenever any payment to be
made hereunder or under any Revolving Note shall be stated to be due on
a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the
applicable rate during such extension.
(d) On other than Competitive Bid Loans, which shall be
negotiated from time to time, all computations of interest and fees
shall be made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day) occurring
in the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed), except that interest on
Base Rate Advances shall be computed on the basis of a year of 360 days
for the actual number of days. Interest on Base Rate Advances shall be
calculated based on the Base Rate from and including the date of such
Revolving Loan to but excluding the date of the repayment or conversion
thereof. Interest on Eurodollar Advances shall be calculated as to each
Interest Period from and including the first day thereof to but
excluding the last day thereof. Each determination by the
Administrative Agent or the Lender making any Competitive Bid Loan of
an interest rate or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for
all purposes.
(e) Payment by Borrower to the Administrative Agent in
accordance with the terms of this Agreement shall, as to Borrower,
constitute payment to the Lenders under this Agreement.
SECTION 3.09 INTEREST RATE NOT ASCERTAINABLE, ETC. In the
event that the Administrative Agent, in the case of the Adjusted LIBO Rate,
shall have determined (which determination shall be made in good faith and,
absent manifest error, shall be final, conclusive and binding upon all parties)
that on any date for determining the Adjusted LIBO Rate for any Interest Period,
by reason of any changes arising after the date of this Agreement affecting the
London interbank market or the Administrative Agent's position in such market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Adjusted LIBO Rate then, and
in any such event, the Administrative Agent shall forthwith give notice (by
telephone confirmed in writing) to Borrower and to the Lenders of such
determination and a summary of the basis for such determination. Until the
Administrative
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Agent notifies Borrower that the circumstances giving rise to the suspension
described herein no longer exist, the obligations of the Lenders to make or
permit portions of the Revolving Loans to remain outstanding past the last day
of the then current Interest Periods as Eurodollar Advances shall be suspended,
and such affected Advances shall bear the same interest as Base Rate Advances.
SECTION 3.10 ILLEGALLY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon 41 parties) at any time
that the making or continuance of any Eurodollar Advance has become
unlawful by compliance by such Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful), then, in any such event, the Lender shall give
prompt notice (by telephone confirmed in writing) to Borrower and to
the Administrative Agent of such determination and a summary of the
basis for such determination (which notice the Administrative Agent
shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, Borrower's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended,
and such Lender shall make an Advance as part of the requested
Borrowing of Eurodollar Advances as a Base Rate Advance, provided,
Borrower does not negotiate a Competitive Bid Loan, which Base Rate
Advance shall, for all other purposes, be considered part of such
Borrowing, and (ii) if the affected Eurodollar Advance or Advances are
then outstanding, Borrower shall immediately, or if permitted by
applicable law, no later than the date permitted thereby, upon at least
one Business Day's written notice to the Administrative Agent and the
affected Lender, convert each such Advance into an Advance or Advances
of a different Type with an Interest Period ending on the date on which
the Interest Period applicable to the affected Eurodollar Advances
expires, provided that if more than one Lender is affected at any time,
then all affected Lenders must be treated the same pursuant to this
Section 3. 1 0(b).
SECTION 3.11 INCREASED COSTS.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements) in or
in the interpretation of any law or regulation, or (y) the compliance
with any guideline or request from any central bank or other
governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not
having the force of law):
(i) any Lender (or its applicable Lending Office) shall be
subject to any tax)q duty or other charge with respect to its
Eurodollar Advances or its obligation to make Eurodollar Advances, or
the basis of taxation of payments to any Lender of the
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principal of or interest on its Eurodollar Advances or its obligation
to make Eurodollar Advances shall have changed (except for changes in
the tax on the overall net income of such Lender or its applicable
Lending Office imposed by the jurisdiction in which such Lender's
principal executive office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender's applicable
Lending Office shall be imposed or deemed applicable or any other
condition affecting its Eurodollar Advances or its obligation to make
Eurodollar Advances shall be imposed on any Lender or its applicable
Lending Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Advances), or there shall be a reduction in
the amount received or receivable by such Lender or its applicable Lending
Office; then Borrower shall from time to time (subject, in the case of certain
Taxes, to the applicable provisions of Section 3.08(b)), upon written notice
from and demand by such Lender on Borrower (with a copy of such notice and
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender within five Business Days after the date of such notice
and demand, additional amounts sufficient to indemnify such Lender against such
increased cost. A certificate as to the amount of such increased cost, submitted
to Borrower and the Administrative Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Administrative Agent that
at any time, because of the circumstances described in clauses (x) or
(y) in Section 3.1 l(a) or any other circumstances beyond such Lender's
reasonable control arising after the date of this Agreement affecting
such Lender or the London interbank market or the United States of
America secondary certificate of deposit market or such Lender's
position in such markets, the Adjusted LIBO Rate, as determined by the
Administrative Agent, will not adequately and fairly reflect the cost
to such Lender of funding its Eurodollar Advances, then, and in any
such event:
(i) the Administrative Agent shall forthwith give notice
(by telephone confirmed in writing) to Borrower and to the other
Lenders of such advice;
(ii) Borrower's right to request and such Lender's
obligation to make or permit portions of the Revolving Loans to remain
outstanding past the last day of the then current Interest Periods as
Eurodollar Advances shall be immediately suspended; and
(iii) such Lender shall make a Revolving Loan as part of
the requested Borrowing of Eurodollar Advances, as the case may be, as
a Base Rate Advance, which
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such Base Rate Advance shall, for all other purposes, be considered
part of such Borrowing.
SECTION 3.12 LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower, it will
use reasonable efforts (subject to overall policy considerations of
such Lender) to designate an alternate Lending Office with respect to
any of its Eurodollar Advances affected by the matters or circumstances
described in Sections 3.08(b), 3.09, 3.10 or 3.11 to reduce the
liability of Borrower or avoid the results provided thereunder, so long
as such designation is not disadvantageous to such Lender as determined
by such Lender, which determination if made in good faith, shall be
conclusive and binding on all parties hereto. Nothing in this Section
3.12 shall affect or postpone any of the obligations of Borrower or any
right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America issues a public
announcement with respect to the closing of its lending offices in the
United States of America or any State thereof (including the District
of Columbia) such that any withholdings or deductions and additional
payments with respect to Taxes may be required to be made by Borrower
thereafter pursuant to Section 3.08(b), such Lender shall use
reasonable efforts to furnish Borrower notice thereof as soon as
practicable thereafter; provided, however, that no delay or failure to
furnish such notice shall in any event release or discharge Borrower
from its obligations to such Lender pursuant to Section 3.08(b) or
otherwise result in any liability of such Lender.
SECTION 3.13 FUNDING LOSSES. Borrower shall compensate each
Lender, upon its written request to Borrower (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances, in
either case to the extent not recovered by such Lender in connection with the
re-employment of such funds and including loss of anticipated profits), which
the Lender may sustain: (i) if for any reason (other than a default by such
Lender) a borrowing of, or conversion to or continuation of Eurodollar Advances
to Borrower does not occur on the date specified therefor in a Notice of
Borrowing or Notice of Continuation/Conversion (whether or not withdrawn), (ii)
if any repayment (including mandatory prepayments and any conversions pursuant
to Section 3.10(b)) of any Eurodollar Advances to Borrower occurs on a date
which is not the last day of an Interest Period applicable thereto, or (iii),
if, for any reason, Borrower defaults in its obligation to repay its Eurodollar
Advances when required by the terms of this Agreement.
SECTION 3.14 ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR
ADVANCES. Calculation of all amounts payable to a Lender under this Article III
shall be made as though that Lender had actually funded its relevant Eurodollar
Advances through the purchase of deposits in
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the relevant market bearing interest at the rate applicable to such Eurodollar
Advances in an amount equal to the amount of the Eurodollar Advances and having
a maturity comparable to the relevant Interest Period and through the transfer
of such Eurodollar Advances from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; provided, however, that
each Lender may fund each of its Eurodollar Advances in any manner it sees fit
and the foregoing assumption shall be used only for calculation of amounts
payable under this Article III.
SECTION 3.15 APPORTIONMENT OF PAYMENTS. Aggregate principal
and interest payments in respect of Revolving Loans and payments in respect of
the Facility Fee shall be apportioned among all outstanding Revolving Loan
Commitments and Revolving Loans to which such payments relate, proportionately
to the Lenders' respective pro rata portions of such Revolving Loan Commitments
and outstanding Revolving Loans. The Administrative Agent shall promptly
distribute to each Lender at its Payment Office set forth beside its name on the
appropriate signature page hereof or such other address as any Lender may
request its share of all such payments received by the Administrative Agent.
SECTION 3.16 SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code) of the Obligations (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its pro rata
portion of payments or reductions on account of such obligations obtained by all
the Lenders, such Lender shall forthwith (i) notify each of the other Lenders
and Administrative Agent of such receipt, and (ii) purchase from the other
Lenders such participation's in the affected obligations as shall be necessary
to cause such purchasing Lender to share the excess payment or reduction, net of
costs incurred in connection therewith, ratably with each of them, provided that
if all or any portion of such excess payment or reduction is thereafter
recovered from such purchasing Lender or additional costs are incurred, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery or such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on such funds.
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 3.16 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
SECTION 3.17 CAPITAL ADEQUACY. Without limiting any other
provision of this Agreement, in the event that any Lender shall have determined
that any law, treaty, governmental (or quasi-governmental) rule, regulation,
guideline or order regarding capital adequacy not currently in effect or fully
applicable as of the Closing Date, or any change therein or in the
interpretation or application thereof after the Closing Date, or compliance by
such Lender with any request or directive regarding capital adequacy not
currently in effect or fully applicable as of the Closing Date (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from a central bank or governmental authority or body having
jurisdiction, does or shall have the effect of reducing the rate of return on
such
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Lender's capital as a consequence of its obligations hereunder to a level below
that which such Lender could have achieved but for such law, treaty, rule,
regulation, guideline or order, or such change or compliance by an amount
reasonably deemed by such Lender to be material, then within ten (10) Business
Days after written notice and demand by such Lender (with copies thereof to the
Administrative Agent), Borrower shall from time to time pay to such Lender
additional amounts sufficient to compensate such Lender for such reduction (but,
in the case of outstanding Base Rate Advances, without duplication of any
amounts already recovered by such Lender by reason of an adjustment in the
applicable Base Rate). Each certificate as to the amount payable under this
Section 3.17 (which certificate shall set forth the basis for requesting such
amounts in reasonable detail), submitted to Borrower by any Lender in good
faith, shall, absent manifest error, be final, conclusive and binding for all
purposes.
SECTION 3.18 BENEFITS TO GUARANTORS. In consideration for the
execution and delivery by the Guarantors of the Guaranty Agreement, Borrower
agrees to make the benefit Of extensions of credit hereunder available to the
Guarantors.
SECTION 3.19 LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) Each Lender or Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to
Section 3.08 no later than 90 days after the earlier of (i) the date on
which such Lender or the Administrative Agent makes payment of such
Taxes, and (ii) the date on which the relevant taxing authority or
other governmental authority makes written demand upon such Lender or
the Administrative Agent for payment of such Taxes.
(b) Each Lender or the Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to
Sections 3.13 and 3.14 no later than 90 days after the event giving
rise to the claim for indemnification or compensation occurs.
(c) Each Lender or the Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to
Sections 3.11 and 3.17 no later than 90 days after such Lender or the
Administrative Agent receives actual notice or obtains actual knowledge
of the promulgation of a law, rule, order or interpretation or
occurrence of another event giving rise to a claim pursuant to such
sections.
(d) In the event that the Lenders or the Administrative Agent
fail to give Borrower notice within the time limitations prescribed in
(a) or (b) above, Borrower shall not have any obligation to pay such
claim for compensation or indemnification. In the event that the Under
or the Administrative Agent fail to give Borrower notice within the
time limitation prescribed in (c) above, Borrower shall not have any
obligation to pay any amount with respect to claims accruing prior to
the ninetieth day preceding such written demand.
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ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower
hereunder is subject to the satisfaction of the following conditions: SECTION
4.01 CONDITIONS PRECEDENT TO INITIAL REVOLVING LOANS. At the
time of the making of the initial Revolving Loans hereunder on the Closing Date,
all obligations of Borrower hereunder incurred prior to the initial Revolving
Loans (including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Administrative Agent and any fees
and expenses payable to the Administrative Agent and the Lenders as previously
agreed with Borrower), shall have been paid in full, and the Administrative
Agent shall have received the following, in form and substance reasonably
satisfactory in all respects to the Administrative Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the
Revolving Loan Commitments;
(c) the duly executed Guaranty Agreement;
(d) certificate of Borrower in substantially the form of
Exhibit C attached hereto and appropriately completed;
(e) the duly executed Commitment Letter;
(f) the duly executed Fee Letter;
(g) certificates of the Secretary or Assistant Secretary of
each of the Credit Parties attaching and certifying copies of the
resolutions of the boards of directors of the Credit Parties,
authorizing as applicable the execution, delivery and performance of
the Credit Documents;
(h) certificates of the Secretary or an Assistant Secretary of
each of the Credit Parties certifying (i) the name, title and true
signature of each officer of such entities executing the Credit
Documents, (ii) the bylaws or comparable governing documents of such
entities; and (iii) the certificate or articles of incorporation of
each Credit Party;
(i) certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of
incorporation or organization of such Credit Party;
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(j) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the
Credit Parties, in connection with the execution, delivery,
performance, validity and enforceability of the Credit Documents and
the other documents to be executed and delivered hereunder, and such
consents, authorizations, filings and orders shall be in full force and
effect and all applicable waiting periods shall have expired;
(k) certified copies of the Intercompany Loan Documents, to
the extent that they exist and have not previously been certified to
the Lenders;
(l) duly executed solvency certificates of Borrower and each
of the Guarantors, in form and substance satisfactory to the Agents and
Lenders;
(m) acknowledgment from CSC Network Corporation System, Inc.
as to its appointment as agent for service of process for the various
Credit Parties;
(n) certified copies of indentures, credit agreements, leases,
capital leases, instruments, and other documents evidencing or securing
Indebtedness of any Consolidated Company described on Schedule 7.01(b),
in any single case in an amount not less than $500,000 and to the
extent not previously certified to the Lenders;
(o) certificates, reports and other information as the
Administrative Agent may reasonably request from any Consolidated
Company in order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from matters relating to
employees of the Consolidated Companies, including employee relations,
collective bargaining agreements, Plans, and other compensation and
employee benefit plans;
(p) certificates, reports, environmental audits and
investigations, and other information as the Administrative Agent may
reasonably request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities or
obligations arising from environmental and employee health and safety
exposures to which the Consolidated Companies may be subject, and the
plans of the Consolidated Companies with respect thereto;
(q) certificates, reports and other information as the
Administrative Agent may reasonably request from any Consolidated
Company in order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from litigation (including
without limitation, products liability and patent infringement claims)
pending or threatened against the Consolidated Companies;
(r) a certificate of insurance summarizing, in form and detail
reasonably acceptable to the Administrative Agent, of the types and
amounts of insurance (property and liability) maintained by the
Consolidated Companies;
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(s) the favorable opinion of counsel to the Credit Parties
addressed to the Administrative Agent and each of the Lenders; and
(t) financial statements of Borrower and its Subsidiaries,
audited on a consolidated basis for the fiscal year ended on the last
Friday in January, 1998 and unaudited on a consolidated basis for the
fiscal quarter ended on the last Friday in October, 1998.
In addition to the foregoing, the following conditions shall have been satisfied
or shall exist, all to the satisfaction of the Administrative Agent, as of the
time the initial Revolving Loans are made hereunder:
(u) the Revolving Loans to be made on the Closing Date and the
use of proceeds thereof shall not contravene, violate or conflict with,
or involve the Administrative Agent or any Lender in a violation of,
any law, rule, injunction, or regulation, or determination of any court
of law or other governmental authority;
(v) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and
enforceability of the Credit Documents shall be reasonably satisfactory
in form and substance to the Required Lenders; and
(w) the status of all pending and threatened litigation
(including products liability and patent claims) which might result in
a Materially Adverse Effect, including a description of any damages
sought and the claims constituting the basis therefor, shall have been
reported in writing to the Administrative Agent, the Administrative
Agent shall have reported such matters to the Lenders, and the Lenders
shall be satisfied with such status.
SECTION 4.02 CONDITIONS TO ALL REVOLVING LOANS. At the time of
the making of all Revolving Loans (before as well as after giving effect to such
Revolving Loans and to the proposed use of the proceeds thereof), the following
conditions shall have been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained
herein shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on
and as of the date of such Revolving Loans;
(c) since the date of the most recent financial statements of
the Consolidated Companies described in Section 5.03, there shall have
been no change which has had or could reasonably be expected to have a
Materially Adverse Effect.
(d) there shall be no action or proceeding instituted or
pending before any court or other governmental authority or, to the
knowledge of Borrower, threatened (i) which reasonably could be
expected to have a Materially Adverse Effect, or (ii) seeking to
prohibit or restrict one or more Credit Party's ownership or operation
of any portion of its
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business or assets, or to compel one or more Credit Party to dispose of
or hold separate all or any portion of its businesses or assets, where
such portion or portions of such business(es) or assets, as the case
may be, constitute a material portion of the total businesses or assets
of the Consolidated Companies;
(e) the Revolving Loans to be made and the use of proceeds
thereof shall not contravene, violate or conflict with, or involve the
Administrative Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or
other governmental authority applicable to Borrower; and
(f) the Administrative Agent shall have received such other
documents or legal opinions as the Administrative Agent or any Lender
may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent.
Each request for a Borrowing and the acceptance by Borrower of
the proceeds thereof shall constitute a representation and warranty by Borrower,
as of the date of the Revolving loans comprising such Borrowing, that the
applicable conditions specified in Sections 4.01 and 4.02 have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
SECTION 5.01 ORGANIZATION AND QUALIFICATION. Borrower is a
corporation duly organized and existing in good standing under the laws of the
State of Florida. Each Subsidiary of Borrower is a corporation duly organized
and existing under the laws of the jurisdiction of its incorporation. Borrower
and each of its Subsidiaries are duly qualified to do business as a foreign
corporation and are in good standing in each jurisdiction in which the character
of their properties or the nature of their business makes such qualification
necessary, except for such jurisdictions in which a failure to qualify to do
business would not have a Materially Adverse Effect. Borrower and each of its
Subsidiaries have the corporate power to own their respective properties and to
each on their respective businesses as now being conducted. The jurisdiction of
incorporation or organization, and the ownership of all issued and outstanding
capital stock, for each Subsidiary as of the date of this Agreement is
accurately described on Schedule 5.01. Schedule 5.Q4 also designates the
Material Subsidiaries as of the Closing Date.
SECTION 5.02 CORPORATE AUTHORITY. The execution and delivery
by Borrower and the Guarantors of and the performance by Borrower and Guarantors
of their obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Borrower and the Guarantors and do not and will not (i) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the organizational papers or bylaws of Borrower or
the Guarantors, or any indenture, agreement or other instrument to which
Borrower or the
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Guarantors are a party or by which Borrower or the Guarantors or any of their
properties is bound, or (ii) be in conflict with, result in a breach of, or
constitute with notice or lapse of time or both a default under any such
indenture, agreement or other instrument.
SECTION 5.03 FINANCIAL STATEMENTS. Borrower has furnished
Lenders with the following financial statements: (i) consolidated balance sheets
and consolidated statements of income, stockholders' equity and cash flow of
Borrower for the fiscal year ended on the last Friday in January, 1998, audited
by Price Waterhouse Coopers LLP and (ii) unaudited consolidated balance sheets
and consolidated statements of income, stockholders' equity and cash flow of
Borrower for the fiscal quarter ending on the last Friday in October, 1998. Such
financial statements (including any related schedules and notes) are true and
correct in all material respects (subject, as to interim statements, to changes
resulting from audits and year end adjustments), have been prepared in
accordance with GAAP consistently applied throughout the period or periods in
question and show, in the case of audited statements, all liabilities, direct or
contingent, of Borrower and its Subsidiaries, required to be shown in accordance
with GAAP consistently applied throughout the period or periods in question and
fairly present the consolidated financial position and the consolidated results
of operations of Borrower and its Subsidiaries for the periods indicated
therein. There has been no material adverse change in the business, condition or
operations, financial or otherwise, of Borrower and its Subsidiaries since the
last Friday in October, 1998.
SECTION 5.04 TAX RETURNS. Each of Borrower and its
Subsidiaries has filed all federal, state and other income tax returns which, to
the best knowledge of the executive officers of Borrower and its Subsidiaries,
are required to be filed, and each has paid all taxes as shown on said returns
and on all assessments received by it to the extent that such taxes have become
due or except such as are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with
GAAP.
SECTION 5.05 ACTIONS PENDING. There is no action, suit,
investigation or proceeding pending or, to the knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries or any of their
properties or rights, by or before any court, arbitrator or administrative or
governmental body, which might result in any Materially Adverse Effect.
SECTION 5.06 REPRESENTATIONS; NO DEFAULTS. At the time of each
Extension of Credit there shall exist no Default or Event of Default, and each
Extension of Credit shall be deemed a renewal by Borrower of the representations
and warranties contained in this Agreement and an affirmative statement by
Borrower that such representations and warranties are true and correct on and as
of such time with the same effect as though such representations and warranties
had been made on and as of such time.
SECTION 5.07 TITLE TO PROPERTIES. Each of Borrower and its
Subsidiaries has (i) good and marketable fee simple title to its respective real
properties (other than real properties which it leases from others), including
such real properties reflected in the consolidated balance sheet of Borrower and
its Subsidiaries as of the last Friday of October, 1998, here in above
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described (other than real properties disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted by Section 7.02
and (ii) good title to all of its other respective properties and assets (other
than properties and assets which it leases from others), including the other
properties and assets reflected in the consolidated balance sheet of Borrower
and its Subsidiaries at the last Friday of October, 1998, here in above
described (other than properties and assets disposed of in the ordinary course
of business), subject to no Lien of any kind except Liens permitted by Section
1.02. Each of Borrower and its Subsidiaries enjoys peaceful and undisturbed
possession under all leases necessary in any material respect for the operation
of its respective properties and assets, none of which contains any unusual or
burdensome provisions which might materially affect or impair the operation of
such properties and assets, and all such leases are valid and subsisting and in
full force and effect.
SECTION 5.08 ENFORCEABILITY OF AGREEMENT. This Agreement is
the legal, valid and binding agreement of Borrower enforceable against Borrower
in accordance with its terms, and the Revolving Notes, and all other Credit
Documents, when executed and delivered, will be similarly legal, valid, binding
and enforceable, except as the enforceability of the Revolving Notes and other
Credit Documents may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditor's rights and remedies in general
and by general principles of equity, whether considered in a proceeding at law
or in equity.
SECTION 5.09 CONSENT. No consent, permission, authorization,
order or license of any governmental authority or Person is necessary in
connection with the execution, delivery, performance or enforcement of the
Credit Documents, or in order to constitute the indebtedness to be incurred
hereunder and under the Revolving Notes and the other Credit Documents as
"Senior Debt" or any similar term defined within the documents evidencing any
Subordinated Debt.
SECTION 5.10 USE OF PROCEEDS, FEDERAL RESERVE REGULATIONS. The
proceeds of the Revolving Notes will be used solely for the purposes specified
in Section 2.01 (c) and none of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin security" or
"margin stock" or for the purpose of reducing or retiring any indebtedness that
originally was incurred to purchase or carry a "margin security" or "margin
stock" or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of the regulations of the Board of Governors
of the Federal Reserve System.
SECTION 5.11 ERISA.
(a) IDENTIFICATION OF CERTAIN PLANS. Schedule 5.11 hereto sets
forth all Plans of Borrower and its Subsidiaries;
(b) COMPLIANCE. Each Plan is being maintained, by its terms
and in operation, in accordance with all applicable laws, except such
noncompliance's (when taken as a whole) that will not have a Materially
Adverse Effect;
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(c) LIABILITIES. Neither the Borrower nor any Subsidiary is
currently or will become subject to any liability (including withdrawal
liability), tax or penalty whatsoever to any person whomsoever with
respect to any Plan including, but not limited to, any tax, penalty or
liability arising under Title I or Title IV of ERISA or Chapter 43 of
the Tax Code, except such liabilities (when taken as a whole) as will
not have a Materially Adverse Effect; and
(d) FUNDING. The Borrower and each ERISA Affiliate has made
full and timely payment of all amounts (i) required to be contributed
under the terms of each Plan and applicable law and (ii) required to be
paid as expenses of each Plan, except where such non-payment would not
have a Materially Adverse Effect. No Plan has an "amount of unfunded
benefit liabilities' (as defined in Section 4001(a)(18) of ERISA)
except as disclosed on Schedule 5.11. No Plan is subject to a waiver or
extension of the minimum funding requirements under ERISA or the Tax
Code, and no request for such waiver or extension is pending.
SECTION 5.12 SUBSIDIARIES. All the outstanding shares of stock
of each such Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such Schedule
5.01, are owned by Borrower or a Wholly Owned Subsidiary of Borrower free of any
Lien or claim.
Each Subsidiary (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of its incorporation
with the power and authority (corpora* and other) to carry on its business as it
is now conducted and (ii) is qualified to transact business as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required under applicable law.
SECTION 5.13 OUTSTANDING INDEBTEDNESS. As of the date of
closing and after giving effect to the transactions contemplated by this
Agreement, neither Borrower nor any of its Subsidiaries has outstanding any
Indebtedness except as permitted by Section 7.01 and there exists no default
under the provisions of any instrument evidencing such Indebtedness or of any
agreement relating thereto.
SECTION 5.14 CONFLICTING AGREEMENTS. Neither Borrower nor any
of its Subsidiaries is a party to any contract or agreement or other burdensome
restrictions or subject to any charter or other corporate restriction which
materially and adversely affects its business, property or assets, or financial
condition. Assuming the consummation of the transactions contemplated by this
Agreement, neither the execution or delivery of this Agreement or the Credit
Document, nor fulfillment of or compliance with the terms and provisions hereof
and thereof, will conflict with, or result in a breach of the terms, conditions
or provisions of, or constitute a default under, or result in any violation of,
or result in the creation of any Lien upon any of the properties or assets of
Borrower or any of its Subsidiaries pursuant to, the charter or By-Laws of
Borrower or any of its Subsidiaries, any award of any arbitrator or any
agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which Borrower or any of
its Subsidiaries is subject, and neither Borrower
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nor any of its Subsidiaries is a party to, or otherwise subject to any provision
contained in, any instrument evidencing Indebtedness of Borrower or any of its
Subsidiaries, any agreement relating thereto or any other contract or agreement
(including its charter) which limits the amount of, or otherwise imposes
restrictions on the incurring of, Indebtedness of the type to be evidenced by
the Revolving Notes or contains dividend or redemption limitations on Common
Stock of Borrower, except for this Agreement, Borrower's Certificate of
Incorporation and those matters listed on Schedule 5.14 attached hereto.
SECTION 5.15 POLLUTION AND OTHER REGULATIONS.
(a) Each of the Borrower and its Subsidiaries has complied in
all material respects with all applicable Environmental Laws, including
without limitation, compliance with permits, licenses, standards,
schedules and timetables, and is not in violation of, and does not
presently have outstanding any liability under, has not been notified
that it is or may be liable under and does not have knowledge of any
liability or potential liability (including any liability relating to
matters set forth on Schedule 5.15(a)) except as set forth on Schedule
5.15(a), under any applicable Environmental Law, including without
limitation, the Resource Conservation and Recovery Act of 1976, as
amended ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("CERCLA"), the Federal
Water Pollution Control Act, as amended ("FWPCA"), the Federal Clean
Air Act, as amended ("FCAA"), and the Toxic Substance Control Act
("TSCA"), which violation, liability or potential liability could
reasonably be expected to have a Materially Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries has
received a written request for information under CERCLA, any other
Environmental Laws or any comparable state law, or any public health or
safety or welfare law or written notice that any such entity has been
identified as a potential responsible party under CERCLA, and other
Environmental Laws, or any comparable state law, or any public health
or safety or welfare law, nor has any such entity received any Written
notification that any Hazardous Substance that it or any of its
respective predecessors in interest has generated, stored, treated,
handled, transported, or disposed of, has been released or is
threatened to be released at any site at which any Person intends to
conduct or is conducting a remedial investigation or other action
pursuant to any applicable Environmental Law, or any other
Environmental Laws.
(c) Each of the Borrower and its Subsidiaries has obtained all
permits, licenses or other authorizations required for the conduct of
their respective operations under all applicable Environmental Laws and
each such authorization is in full force and effect.
(d) Each of Borrower and its Subsidiaries complies in all
material respects with all laws and regulations relating to equal
employment opportunity and employee safety in all jurisdictions in
which it is presently doing business, and Borrower will use its best
efforts to comply, and to cause each of its Subsidiaries to comply,
with all such laws and
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regulations which may be legally imposed in the future in jurisdictions
in which Borrower or any of its Subsidiaries may then be doing
business.
SECTION 5.16 POSSESSION OF FRANCHISES, LICENSES, ETC. Each of
Borrower and its Subsidiaries possesses all franchises, certificates, licenses,
permits and other authorizations from governmental political subdivisions or
regulatory authorities, free from burdensome restrictions, that are necessary in
any material respect for the ownership, maintenance and operation of its
properties and assets, and neither Borrower nor any of its Subsidiaries is in
violation of any thereof in any material respect.
SECTION 5.17 PATENTS, ETC. Each of Borrower and its
Subsidiaries owns or has the right to use all patents, trademarks, service
marks, trade names, copyrights, licenses and other rights, free from burdensome
restrictions, which are necessary for the operation of its business as presently
conducted. Nothing has come to the attention of Borrower, any of its
Subsidiaries or any of their respective directors and officers to the effect
that (i) any product, process, method, substances part or other material
presently contemplated to be sold by or employed by Borrower or any of its
Subsidiaries in connection with its business may infringe any patent, trademark,
service mark, trade name, copyright, license or other right owned by any other
Person, (ii) there is pending or threatened any claim or litigation against or
affecting Borrower or any of its Subsidiaries contesting its right to sell or
use any such product, process, method, substance, part or other material or
(iii) there is, or there is pending or proposed, any patent, invention, device,
application or principle or any statute, law, rule, regulation, standard or code
which would prevent, inhibit or render obsolete the production or sale of any
products of, or substantially reduce the projected revenues of, or otherwise
materially adversely affect the business, condition or operations of, Borrower
or any of its Subsidiaries,
SECTION 5.18 GOVERNMENTAL CONSENT. Neither the nature of
Borrower or any of its Subsidiaries nor any of their respective businesses or
properties, nor any relationship between Borrower and any other Person, nor any
circumstance in connection with the execution and delivery of the Credit
Documents and the consummation of the transactions contemplated thereby is such
as to require on behalf of Borrower or any of its Subsidiaries any consent,
approval or other action by or any notice to or filing with any court or
administrative or governmental body in connection with the execution and
delivery of this Agreement and the Credit Documents.
SECTION 5.19 DISCLOSURE. Neither this Agreement nor the Credit
Documents nor any other document, certificate or written statement furnished to
Lenders by or on behalf of Borrower in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading. There
is no fact peculiar to Borrower which materially adversely affects or in the
future may (so far as Borrower can now foresee) materially adversely affect the
business, property or assets, financial condition or prospects of Borrower which
has not been set forth in this Agreement or in the Credit Documents,
certificates and written statements furnished to Lenders by or on behalf of
Borrower prior to the date hereof in connection with the transactions
contemplated hereby.
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SECTION 5.20 INSURANCE COVERAGE. Each property of Borrower or
any of its Subsidiaries is insured within terms acceptable to Lenders for the
benefit of Borrower or a Subsidiary of Borrower in amounts deemed adequate by
Borrower's management and no less than those amounts customary in the industry
in which Borrower and its Subsidiaries operate against risks usually insured
against by Persons operating businesses similar to those of Borrower or its
Subsidiaries in the localities where such properties are located.
SECTION 5.21 LABOR MATTERS. The Borrower and the Borrower's
Subsidiaries have experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which have had, or would reasonably be
expected to have, a Materially Adverse Effect, and, to the best knowledge of
Borrower's executive officers, there are no such strikes, disputes, slow downs
or work stoppages threatened against any Borrower or any of Borrower's
Subsidiaries. The hours worked and payment made to employees of the Borrower and
Borrower's Subsidiaries have not been in violation in any material respect of
the Fair Labor Standards, Act or any other applicable law dealing with such
matters. All payments due from the Borrower and Borrower's Subsidiaries, or for
which any claim may be made against the Consolidated Companies, on account of
wages and employee health and welfare insurance and other benefits have been
paid or accrued as liabilities on the books of the Borrower and Borrower's
Subsidiaries where the failure to pay or accrue such liabilities would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.22 INTERCOMPANY LOANS, DIVIDENDS. The Intercompany
Loans and the Intercompany Loan Documents, to the extent that they exist, have
been duly authorized and approved by all necessary corporate and shareholder
action on the part of the parties thereto, and constitute the legal, valid and
binding obligations of the parties thereto, enforceable against each of them in
accordance with their respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally, and by general principles of equity. There are no
restrictions on the power of any Consolidated Company to repay any Intercompany
Loan or to pay dividends on the capital stock. Intercompany Loans as of the
Closing Date are described in Schedule 5.22.
SECTION 5.23 BURDENSOME RESTRICTIONS. None of the Consolidated
Companies is a party to or bound by any Contractual Obligation or Requirement of
Law which has had or would reasonably be expected to have a Materially Adverse
Effect.
SECTION 5.24 INVESTMENT COMPANY ACT, ETC. Neither the Borrower
nor any of its Subsidiaries is an "investment company" or a company "controlled"
by an "investment company" (as each of the quoted terms is defined or used in
the Investment Company Act of 1940, as amended). Neither the Borrower nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, or any foreign, federal or local
statute or regulation limiting its ability to incur indebtedness for money
borrowed, guarantee such indebtedness, or pledge its assets to secure such
indebtedness, as contemplated hereby or by any other Credit Document.
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SECTION 5.25 NOTICE OF NON-COMPLIANCE WITH LAWS. Neither the
Borrower not any of its Subsidiaries has received notice of any violation of
Law, statute, order, rule, regulation, or judgment entered by any court that may
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.26 YEAR 2000 ISSUES. Borrower and the other
Consolidated Companies are performing a comprehensive review of their computers
and software applications to identify the systems that would be affected by Year
2000 Issues as such issues pertain to the computer programs and systems of the
Consolidated Companies, (ii) based on their review, and all other information
currently available to them, do not reasonably anticipate that Year 2000 Issues
will have a Materially Adverse Effect, and (iii) are in compliance with all
laws, rules and regulations Of the Securities and Exchange Commission.
ARTICLE VI.
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow
under this Agreement or so long as any indebtedness remains outstanding under
the Revolving Notes that it will:
SECTION 6.01 CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause each of its Material Subsidiaries to preserve and maintain, its
corporate existence, its material rights, franchises, and licenses, and its
material patents and copyrights (for the scheduled duration thereof),
trademarks, trade names, and service marks, necessary or desirable in the normal
conduct of its business, and its qualification to do business as a foreign
corporation in all jurisdictions where it conducts business or other activities
making such qualification necessary, where the failure to do so would reasonably
be expected to have a Materially Adverse Effect.
SECTION 6.02 COMPLIANCE WITH LAWS, ETC. Comply, and cause each
of its Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 6.07(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve amounts
in excess of $1 0,000,000 in the aggregate) and Contractual Obligations
applicable to or binding on any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would reasonably be expected to
have a Materially Adverse Effect.
SECTION 6.03 PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services) which
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained with respect thereto.
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SECTION 6.04 KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
SECTION 6.05 VISITATION, INSPECTION, ETC. Permit, and cause
each of its Subsidiaries to pen-nit, any representative of the Administrative
Agent or any Lender to visit and inspect any of its property, to examine its
books and records and to make copies and take extracts therefrom, and to discuss
its affairs, finances and accounts with its officers, all at such reasonable
times and as often as the Administrative Agent or such Lender may reasonably
request after reasonable prior notice to Borrower; provided, however, that at
any time following the occurrence and during the continuance of a Default or an
Event of Default, no prior notice to Borrower shall be required.
SECTION 6.06 INSURANCE, MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against
loss or damage of the kinds customarily insured against by reputable
companies in the same or similar businesses, such insurance to be of
such types and in such amounts, including such self-insurance and
deductible provisions, as is customary for such companies under similar
circumstances; provided, however, that in any event Borrower shall use
its best efforts to maintain, or cause to be maintained, insurance in
amounts and with coverage's not materially less favorable to any
Consolidated Company as in effect on the date of this Agreement, except
where the costs of maintaining such insurance would, in the judgment of
both Borrower and the Administrative Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of Borrower may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing
in this Section shall prevent Borrower from discontinuing the operation
or maintenance of any such properties if such discontinuance is, in the
judgment of Borrower, desirable in the conduct of its business or the
business of any Consolidated Company.
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SECTION 6.07 REPORTING COVENANTS. Furnish to each Lender:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event within 95 days after the end of each fiscal year of Borrower,
balance sheets of the Consolidated Companies as at the end of such
year, presented on a consolidated basis, and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal year, presented on a consolidated basis,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and accompanied by a
report thereon of independent public accountants of recognized national
standing reasonably acceptable to the Administrative Agent, which such
report shall be unqualified as to going concern and scope of audit and
shall state that such financial statements present fairly in all
material respects the financial condition as at the end of such fiscal
year on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal
year in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards;
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event Within 60 days after the end of each fiscal quarter of
Borrower (other than the fourth fiscal quarter), balance sheets of the
Consolidated Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal
quarter and for the portion of Borrower's fiscal year ended at the end
of such quarter, presented on a consolidated basis setting forth in
each case in comparative form the figures for the corresponding quarter
and the corresponding portion of Borrower's previous fiscal year, all
in reasonable detail and certified by the chief financial officer or
principal accounting officer of Borrower that such financial statements
fairly present in all material respects the financial condition of the
Consolidated Companies as at the end of such fiscal quarter on a
consolidated basis, and the results of operations and statements of
cash flows of the Consolidated Companies for such fiscal quarter and
such portion of Borrower's fiscal year, in accordance with GAAP
consistently applied (subject to normal year-end audit adjustments and
the absence of certain footnotes);
(c) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the
financial statements required pursuant to subsections (a) and (b)
above, a certificate of the president, chief financial officer or
principal accounting officer of Borrower (the "Compliance Certificate")
(i) to the effect that, based upon a review of the activities of the
Consolidated Companies and such financial statements during the period
covered thereby, there exists no Event of Default and no Default Under
this Agreement, or if there exists an Event of Default or a Default
hereunder, specifying the nature thereof and the proposed response
thereto, and (ii) demonstrating in reasonable detail compliance as at
the end of such fiscal year or such fiscal quarter with Section 6.08
and Sections 7.01 through 7.04;
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(d) NOTICE OF DEFAULT. Promptly after any Executive Officer of
Borrower has notice or knowledge of the occurrence of an Event of
Default or a Default, a certificate of the chief financial officer or
principal accounting officer of Borrower specifying the nature thereof
and the proposed response thereto;
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(e) LITIGATION. Promptly after (i) the occurrence thereof,
notice of the institution of or any adverse development in any action,
suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated
Company, or any material property thereof which might have a Materially
Adverse Effect, or (ii) actual knowledge thereof, notice of the threat
of any such action, suit, proceeding, investigation or arbitration;
(f) ENVIRONMENTAL NOTICES. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action,
claim or request for information, either judicial or administrative,
from any governmental authority relating to any actual or alleged
claim, notice of potential responsibility under or violation of any
Environmental Law, or any actual or alleged spill, leak, disposal or
other release of any waste, petroleum product, or hazardous waste or
Hazardous Substance by any Consolidated Company which could result in
penalties, fines, claims or other liabilities to any Consolidated
Company in amounts in excess of $5,000,000 individually or in the
aggregate;
(g) ERISA.
(i) Promptly after the occurrence thereof with respect to
any Plan of any Consolidated Company or any ERISA Affiliate thereof, or
any trust established thereunder, notice of (x) a "reportable event"
described in Section 4043 of ERISA and the regulations issued from time
to time thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations), or
(y) any other event which could subject any Consolidated Company to any
tax, penalty or liability under Title I or Title IV of ERISA or Chapter
43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 162, 404 or 419 of the Tax Code, where any
such taxes, penalties or liabilities exceed or could exceed $1,000,000
in the aggregate;
(ii) Promptly after such notice must be provided to the
PBGC, or to a Plan participant, beneficiary or alternative payee, any
notice required under Section 101(d), 302(f)(4), 303, 307, 4041
(b)(1)(A) or 4041 (c)(1)(A) of ERISA or under Section 401(4)(29) or 412
of the Tax Code with respect to any Plan of any Consolidated Company or
any ERISA Affiliate thereof,
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the
intent of the PBGC or any other governmental authority to terminate a
Plan of such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA
Affiliate "der Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Administrative Agent,
promptly upon the filing thereof with the Internal Revenue Service
("IRS") or the Department of Labor
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("DOL"), a copy of IRS Form 5500 or annual report for each Plan of any
Consolidated Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA;
(v) Upon the request of the Administrative Agent, (A) true
and complete copies of any and all documents, government reports and
IRS determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports filed
with the IRS, PBGC or DOL with respect to a Plan of the Consolidated
Companies or any ERISA Affiliate thereof, or (C) a current statement of
withdrawal liability for each Multiemployer Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(h) LIENS. Promptly upon any Consolidated Company becoming
aware thereof, notice of the filing of any federal statutory Lien, tax
or other state or local government Lien or any other Lien affecting
their respective properties, other than those Liens expressly permitted
by Section 7.02;
(i) PUBLIC FILINGS, ETC. Promtly upon the filing thereof or
otherwise becoming available, copies of all financial statements,
annual, quarterly and special reports, proxy statements and notices
sent or made available generally by Borrower to its public security
holders, of all regular and periodic reports and all registration
statements and prospectuses (other than registration statements filed
on Form S-3 of the Securities and Exchange Commission regarding the
issuance of restricted stock in acquisitions), if any, filed by any of
them with any securities exchange, and of all press releases and other
statements made available generally to the public containing material
developments in the business or financial condition of Borrower and the
other Consolidated Companies;
(j) ACCOUNTANTS REPORTS. Promptly upon receipt thereof, copies
of all financial statements of, and all reports submitted by,
independent public accountants to Borrower in connection with each
annual, interim, or special audit of Borrower's consolidated financial
statements;
(k) BURDENSOME RESTRICTIONS, ETC. Promptly upon the existence
or occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in Section 5.23,
(ii) failure of any Consolidated Company to hold in full force and
effect those material trademarks, service marks, patents, trade names,
copyrights, licenses and similar rights necessary in the normal conduct
of its business, and (iii) any strike, labor dispute slow down or work
stoppage as described in Section 5.2 1;
(l) NEW MATERIAL SUBSIDIARIES. Simultaneously with the
delivery of each Compliance Certificate, a written list of all Material
Subsidiaries formed, acquired, or created from a transfer of assets or
through any other event, during the period commencing on the Closing
Date and ending on the date on which the first Compliance Certificate
is delivered, and thereafter since the date of the most recently
delivered Compliance Certificate; such written list shall include the
name of each new Material
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Subsidiary, its state of incorporation, list of its officers and any
other information that the Administrative Agent shall reasonably
request.
(m) INTERCOMPANY ASSET TRANSFERS. Promptly upon the occurrence
thereof, notice of the transfer of any assets from Borrower or any
Guarantor to any other Consolidated Company that is not Borrower or a
Guarantor (in any transaction or series of related transactions),
excluding sales or other transfers of assets in the ordinary course of
business, where the Asset Value of such assets is greater than
$5,000,000 per transfer;
(n) YEAR 2000 ISSUES. Promptly upon any Executive Officer of
Borrower has notice or knowledge thereof, notice that any computer
programs and systems of the Consolidated Companies are subject to any
Year 2000 Issues that could reasonable be expected to have a Materially
Adverse Effect; and
(o) OTHER INFORMATION. With reasonable promptness, such other
information about the Consolidated Companies as the Administrative
Agent or any Lender may reasonably request from time to time.
SECTION 6.08 FINANCIAL COVENANTS.
(a) FIXED CHARGE COVERAGE RATIO. Maintain as of the last day
of each fiscal quarter, a Fixed Charge Coverage Ratio of greater than
1.50:1.0.
(b) LEVERAGE RATIO. Maintain as of the last day of each fiscal
quarter, a Leverage Ratio of less than or equal to 0.60: 1.0.
(c) MINIMUM NET WORTH. Maintain a Consolidated Net Worth of
not less than $425,000,000 plus (ii) 50% of Consolidated Net Income
(but not Loss) for each fiscal quarter ended after January 30, 1998 and
on or prior to the date of determination.
(d) DIVIDENDS. Not declare or pay any dividend on its capital
stock, or make any payment to purchase, redeem, retire or acquire any
of its Subordinated Debt or capital stock Or any option, warrant, or
other right to acquire such Subordinated Debt or capital stock, other
than:
(i) dividends payable solely in shares of capital stock;
and
(ii) cash dividends declared and paid, and all other such
payments made, after January 29, 1993, in an aggregate amount at any
time not to exceed (x) $1,000,000, PLUS (y) 50% of Consolidated Net
Income (or minus 100% of Consolidated Net Loss) earned during
Borrower's fiscal year ended January 29, 1993, and thereafter (such
period to be treated as one accounting period); provided, further,
however, no such dividend or other payment may be declared or paid
pursuant to clause (ii) above unless no Default or Event of Default
exists at the time of such declaration or payment, or would exist as a
result of such declaration or payment.
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SECTION 6.09 NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Immediately Upon its receipt thereof, Borrower shall furnish the Administrative
Agent a copy of any notice received by it or any other Consolidated Company from
the holder(s) of Indebtedness referred to in Section 7.01 (or from any trustee,
agent, attorney, or other party acting on behalf of such holder(s)) in an amount
which, in the aggregate, exceeds $5,000,000, where such notice states or claims
(i) the existence or occurrence of any default or event of default with respect
to such Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness, or
(ii) the existence or occurrence of any event or condition which requires or
pen-nits holder(s) of any Indebtedness to exercise rights under any Change in
Control Provision. Borrower agrees to take such actions as may be necessary to
require the holder(s) of any Indebtedness (or any trustee or agent acting on
their behalf incurred pursuant to documents executed or amended and restated
after the Closing Date, to furnish copies of all such notices directly to the
Administrative Agent simultaneously with the furnishing thereof to Borrower, and
that such requirement may not be altered or rescinded without the prior written
consent of the Administrative Agent.
SECTION 6.10 ADDITIONAL GUARANTORS. Borrower shall cause each
new Material Subsidiary reported to the Administrative Agent and the Lenders
pursuant to Section 6.07(l) above to execute and deliver to the Administrative
Agent, simultaneously with the report given pursuant to Section 6.07(l) above, a
supplement to the Guaranty Agreement, together with related documents of the
kind described in Section 4.01, as appropriate, all in form and substance
satisfactory to the Administrative Agent and the Required Lenders.
SECTION 6.11 FINANCIAL STATEMENTS; FISCAL YEAR. Borrower shall
make no change in the dates of the fiscal year now employed for accounting and
reporting purposes without the prior written consent of the Required Lenders,
which consent shall not be unreasonably withheld.
SECTION 6.12 OWNERSHIP OF GUARANTORS. Borrower shall maintain
its percentage of ownership existing as of the date hereof of all Guarantors,
and shall not decrease its ownership percentage in each Person which becomes a
Guarantor after the date hereof, as such ownership exists at the time such
Person becomes a Guarantor.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Revolving Loan Commitment remains in effect
hereunder or any Revolving Note shall remain unpaid, Borrower will not and will
not permit any Subsidiary to:
SECTION 7.01 INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, other than:
(a) Indebtedness under this Agreement or the Line of Credit
Agreement;
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(b) Indebtedness outstanding on the date hereof or pursuant to
lines of credit in effect on the date hereof and described on SCHEDULE
7.01(B).
(c) purchase money Indebtedness to the extent secured by a
Lien permitted by Section 7.02(b) provided such purchase money
Indebtedness does not exceed $20,000,000;
(d) unsecured current liabilities (other than liabilities for
borrower money or liabilities evidenced by promissory notes, bonds or
similar instruments) incurred in the ordinary course of business and
either (i) not more than 30 days past due, or (ii) being disputed in
good faith by appropriate proceedings with reserves for such disputed
liability maintained in conformity with GAAP;
(e) any Intercompany Loans; PROVIDED, HOWEVER, that the
aggregate principal amount of all Intercompany Loans made to any
Consolidated Companies that are not Guarantors shall not exceed
$5,000,000 in the any one time outstanding unless otherwise agreed in
writing by the Administrative Agent and the Required Lenders;
(f) other Subordinated Debt in form and substance acceptable
to the Administrative Agent and the Required Lenders, and evidenced by
their written consent thereto;
(g) other Indebtedness not to exceed $75,000,000 at any one
time outstanding.
SECTION 7.02 LIENS. Create, incur, assume or suffer to exist
any Lien on any of its property now owned hereafter acquired to secure any
Indebtedness other than:
(a) Liens existing on the date hereof disclosed on SCHEDULE
7.02;
(b) any Lien on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition
cost of such property and any refinancing thereof, PROVIDED that such
Lien does not extend to any other property, and PROVIDED FURTHER that
the aggregate principal amount of Indebtedness secured by all such
Liens at any time does not exceed $20,000,000;
(c) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(d) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
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(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money); and
(f) Liens (other than those permitted by paragraphs (a)
through (e) of this Section 7.02) encumbering assets having an Asset
Value not greater than $20,000,000 in the aggregate any one time.
SECTION 7.03 MERGERS, ACQUISITIONS, SALES, ETC. Merge or
consolidate with any other Person, other than Borrower or another Subsidiary, or
sell, lease, or otherwise dispose of its accounts, property or other assets
(including capital stock of Subsidiaries), or purchase, lease or otherwise
acquire all or any substantial portion of the property or assets (including
capital stock) of any Person; provided, however, that the foregoing restrictions
on asset sales shall not be applicable to (i) sales of equipment or other
personal property being replaced by other equipment or other personal property
purchased as a capital expenditure item, (ii) sales of accounts receivable
pursuant to a securitization program, provided further that any program costs
incurred by the Borrower in pursuing such a program shall be considered interest
under this Credit Agreement, (iii) other asset sales (including the stock of
Subsidiaries) where, on the date of execution of a binding obligation to make
such asset sale (provided that if the asset sale is not consummated within six
(6) months of such execution, then on the date of consummation of such asset
sale rather than on the date of execution of such binding obligation), the Asset
Value of asset sales occurring after the Closing Date, taking into account the
Asset Value of the proposed asset sale, would not exceed ten percent (10%) of
Borrower's Consolidated Net Worth, since the Closing Date, and (iv) sales of
inventory in the ordinary course of business; provided, further, that the
foregoing restrictions on mergers shall not apply to mergers involving Borrower
and another entity, provided Borrower is the surviving entity, and mergers
between a Subsidiary of Borrower and Borrower or between Subsidiaries of
Borrower provided that, in either case, upon consummation of such mergers,
Borrower is in compliance with the other provisions hereof-, provided, further,
that the foregoing restrictions on asset purchases shall not apply to asset
purchases by Borrower to the extent that (i) after giving effect to such
purchases, Borrower is in compliance with Section 7.04 hereof and (ii) the Board
of Directors or other governing body of such Person whose assets or stock is
being purchased has approved the terms of such acquisition; provided, however,
that no transaction pursuant to clauses (i), (ii) or (iii) or the second or
third provisos above shall be permitted if any Default or Event of Default
otherwise exists at the time of such transaction or would otherwise exist as a
result of such transaction.
SECTION 7.04 INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries, other
than:
(a) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date
or become Guarantors in accordance with Section 6. 1 0 after the
Closing Date; provided, however, nothing in this
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Section 7.04 shall be deemed to authorize an investment pursuant to
this subsection (a) in any entity that is not a Subsidiary and a
Guarantor prior to such investment;
(b) Investments in Subsidiaries, other than those Subsidiaries
that are or become Guarantors under this Agreement, or persons that
thereafter become Subsidiaries, in an aggregate amount not to exceed
$25,000,000 unless otherwise consented to in writing by the Required
Lenders;
(c) Investments in other Persons that are not, and do not
become, Subsidiaries in an aggregate amount not to exceed $25,000,000
unless otherwise consented to in writing by the Required Lenders;
(d) direct obligations of the United States of America or any
agency thereof, or obligations guaranteed by the United States of
America or any agency thereof, in each case supported by the full faith
and credit of the United States of America and maturing within one year
from the date of creation thereof;
(e) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(f) time deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by any
Lender and any office located in the United States of America of any
bank or trust company which is organized under the laws of the United
States of America or any state thereof and has total assets aggregating
at least $500,000,000, including without limitation, any such deposits
in Eurodollars issued by a foreign branch of any such bank or trust
company;
(g) Investments made by Plans; and
(h) permitted Intercompany Loans on terms and conditions
acceptable to the Administrative Agent.
SECTION 7.05 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except to the extent that the aggregate
value of all such property sold and leased back does not exceed $5,000,000 at
any one time.
SECTION 7.06 TRANSACTIONS WITH AFFILIATES.
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not
in the ordinary course of business, with any Affiliate of any
Consolidated Company (but excluding any Affiliate which is also a
Consolidated Company), other than on terms and conditions substantially
as favorable to
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such Consolidated Company as would be obtained by such Consolidated
Company at the time in a comparable arm's-length transaction with a
Person other than an Affiliate.
(b) Convey or transfer to any other Person (including any
other Consolidated Company) any real property, buildings, or fixtures
used in the manufacturing or production operations of any Consolidated
Company, or convey or transfer to any other Consolidated Company any
other assets (excluding conveyances or transfers in the ordinary course
of business) if at the time of such conveyance or transfer any Default
or Event of Default exists or would exist as a result of such
conveyance or transfer.
SECTION 7.07 OPTIONAL PREPAYMENTS. Directly or indirectly,
prepay, purchase, redeem, retire, defuse or otherwise acquire, or make any
optional payment on account of any principal of, interest on, or premium payable
in connection with the optional prepayment, redemption or retirement of, any of
its Indebtedness, or give a notice of redemption with respect to any such
Indebtedness, or make any payment in violation of the subordination provisions
of any Subordinated Debt, except with respect to (i) the Obligations under this
Agreement and the Notes, (ii) prepayments of Indebtedness outstanding pursuant
to revolving credit, overdraft and line of credit facilities permitted pursuant
to Section 7.01, (iii) Intercompany Loans made or outstanding pursuant to
Section 7.01, and (iv) Subordinated Debt, in form and substance acceptable to
the Administrative Agent and the Required Lenders, as evidenced by their written
consent, issued to refinance existing Subordinated Debt.
SECTION 7.08 CHANGES IN BUSINESS. Enter into any business
which is substantially different from that presently conducted by the
Consolidated Companies taken as a whole except where the Investment made, and
other funds expended or committed with respect to such business, do not exceed
$5,000,000 in each new business.
SECTION 7.09 ERISA. Take or fail to take any action with
respect to any Plan of any Consolidated Company or, with respect to its ERISA
Affiliates, any Plans which are subject to Title IV of ERISA or to continuation
health care requirements for group health plans under the Tax Code, including
without limitation (i) establishing any such Plan, (ii) amending any such Plan
(except where required to comply with applicable law), (iii) terminating or
withdrawing from any such Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan, without first
obtaining the written approval of the Administrative Agent and the Required
Lenders, where such actions or failures could result in a Materially Adverse
Effect.
SECTION 7.10 ADDITIONAL NEGATIVE PLEDGES. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon any
asset of any Consolidated Company, other than pursuant to (i) the terms of any
agreement, instrument or other document pursuant to which any Indebtedness
permitted by Section 7.01 (a) or (b) is incurred by any Consolidated Company, so
long as such prohibition or restriction applies only to the property or asset
being financed by such Indebtedness, and (ii) any requirement of applicable law
or any regulatory authority having jurisdiction over any of the Consolidated
Companies.
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SECTION 7.11 LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions on
such Consolidated Company's stock, or (ii) pay any indebtedness owed to Borrower
or any other Consolidated Company, or (iii) transfer any of its property or
assets to Borrower or any other Consolidated Company, except any consensual
encumbrance or restriction existing under the Credit Documents or under the Line
of Credit Agreement and related documents.
SECTION 7.12 ACTIONS UNDER CERTAIN DOCUMENTS. Without the
prior written consent of the Administrative Agent (which consent shall not be
unreasonably withheld), modify, amend, cancel or rescind any agreements or
documents evidencing or governing Subordinated Debt or the senior Indebtedness
permitted pursuant to Section 7.01 hereof, or make demand of payment or accept
payment on any Intercompany Loans permitted by Section 7.01, except that current
interest accrued thereon as of the date of this Agreement and all interest
subsequently accruing thereon (whether or not paid currently) may be paid unless
a Default or Event of Default has occurred and is continuing.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 8.01 PAYMENTS. Borrower shall fail to make promptly
when due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Revolving Loans, or Borrower shall fail to make
within five (5) Business Days after the due date thereof any payment of
interest, fee or other amount payable hereunder;
SECTION 8.02 COVENANTS WITHOUT NOTICE. Borrower shall fail to
observe or perform any covenant or agreement contained in Sections 6.07, 6.08,
6.11, and Article VII;
SECTION 8.03 OTHER COVENANTS. Borrower shall fail to observe
or perform any covenant or agreement contained in this Agreement, other than
those referred to in Sections 8.01 and 8.02, and, if capable of being remedied,
such failure shall remain unremedied for 30 days after the earlier of (i)
Borrower's obtaining knowledge thereof, or (ii) written notice thereof shall
have been given to Borrower by the Administrative Agent or any Lender;
SECTION 8.04 REPRESENTATIONS. Any representation or warranty
made or deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Administrative Agent or the Lenders by any such
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Person pursuant to the terms of this Agreement or any other Credit Document,
shall be incorrect in any material respect when made or deemed to be made or
submitted;
SECTION 8.05 NON-PAYMENTS OF OTHER INDEBTEDNESS. Any
Consolidated Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness (other
than the Obligations) exceeding $5,000,000 in the aggregate including, without
limitation, indebtedness outstanding under the Line of Credit Agreement;
SECTION 8.06 DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated
Company shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness exceeding $5,000,000 in the aggregate including, without
limitation, indebtedness outstanding under the Line of Credit Agreement, or any
other event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other Person to
accelerate, the maturity of such Indebtedness; or any such Indebtedness shall be
required to be prepaid (other than by a regularly scheduled required prepayment)
in whole or in part prior to its stated maturity;
SECTION 8.07 BANKRUPTCY. Borrower or any other Consolidated
Company shall commence a voluntary case concerning itself under the Bankruptcy
Code or an involuntary case for bankruptcy is commenced against any Consolidated
Company and the petition is not controverted within 10 days, or is not dismissed
within 60 days, after commencement of the case; or a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of, all or any
substantial part of the property of any Consolidated Company; or any
Consolidated Company commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether now or
hereafter in effect, relating to any Consolidated Company or there is commenced
against any Consolidated Company any such proceeding which remains undismissed
for a period of 60 days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Consolidated Company suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is unable to pay,
or shall be unable to pay, its debts generally as they become due; or any
Consolidated Company shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of the foregoing;
SECTION 8.08 ERISA. A Plan of a Consolidated Company or a Plan
subject to Title IV of ERISA of any of its ERISA Affiliates:
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(i) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of such Plan,
Section 412 of the Tax Code or Section 302 of ERISA for any plan year
or a waiver of such standard is sought or granted with respect to such
Plan under applicable law, the terms of such Plan or Section 412 of the
Tax Code or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of such Plan;
or
(iii) shall require a Consolidated Company to provide
security under applicable law, the terms of such Plan, Section 401 or
412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to a Consolidated Company
under applicable law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other
event a liability to the PBGC or a Plan that would have a Materially Adverse
Effect;
SECTION 8.09 MONEY JUDGMENT. A judgment or order for the
payment of money in excess of $5,000,000 or otherwise having a Materially
Adverse Effect shall be rendered against Borrower or any other Consolidated
Company and such judgment or order shall continue unsatisfied (in the case of a
money judgment) and in effect for a period of 30 days during which execution
shall not be effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
SECTION 8.10 OWNERSHIP OF CREDIT PARTIES AND PLEDGED ENTITIES.
If Borrower shall at any time fail to own and control the required percentage of
the voting stock of any Guarantor, either directly or indirectly through a
wholly-owned Subsidiary of Borrower;
SECTION 8.11 CHANGE IN CONTROL OF BORROWER. (a) Any "person"
or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act), other than the Hughes Family shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of more than twenty-five percent (25%) of the shares
of the outstanding common stock of Borrower entitled to vote for members of
Borrower's board of directors, or (b) any event or condition shall occur or
exist which, pursuant to the terms of any change in control provision, requires
or permits the holder(s) of Indebtedness of any Consolidated Company to require
that such Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be accelerated in any
respect;
SECTION 8.12 DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall
exist or occur any "Event of Default" as provided under the terms of any other
Credit Document, or any Credit Document ceases to be in full force and effect or
the validity or enforceability thereof is disaffirmed by or on behalf of
Borrower or any other Credit Party, or at any time it is or becomes unlawful for
Borrower or any other Credit Party to perform or comply with its obligations
under
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any Credit Document, or the obligations of Borrower or any other Credit Party
under any Credit Document are not or cease to be legal, valid and binding on
Borrower or any such Credit Party;
SECTION 8.13 ATTACHMENTS. An attachment or similar action
shall be made on or taken against any of the assets of any Consolidated Company
with an Asset Value exceeding $5,000,000 in aggregate and is not removed,
suspended or enjoined within 60 days of the same being made or any suspension or
injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, and upon the written or
telex request of the Required Lenders, shall, by written notice to Borrower,
take any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Revolving Note to enforce
its claims against Borrower or any other Credit Party: (i) declare all Revolving
Loan Commitments terminated, whereupon the Revolving Loan Commitments of each
Lender shall terminate immediately and Fees shall forthwith become due and
payable without any other notice of any kind; and (ii) declare the principal of
and any accrued interest on the Revolving Loans, and all other Obligations owing
hereunder, to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by Borrower; provided, that, if an Event of Default specified
in Section 8.07 shall occur, the result which would occur upon the giving of
written notice by the Administrative Agent to any Credit Party, as specified in
clauses (i) and (ii) above, shall occur automatically without the giving of any
such notice.
ARTICLE IX.
THE AGENTS
SECTION 9.01 APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender
hereby designates SunTrust Bank, Central Florida, National Association as the
"Administrative Agent" to administer all matters concerning the Revolving Loans
and to act as herein specified. Each Lender hereby irrevocably authorizes, and
each holder of any Revolving Note by the acceptance of a Revolving Note shall be
deemed irrevocably to authorize, the Administrative Agent to take such actions
on its behalf under the provisions of this Agreement, the other Credit
Documents, amid all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through its agents or employees. The provisions of this Section
9.01 are solely for the benefit of the Administrative Agent, and Borrower and
the other Consolidated Companies shall not have any rights as third party
beneficiaries of any of the provisions hereof. In performing its functions and
duties under this Agreement, the Administrative Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligations towards or relationship of agency or trust with or for the Borrower
and the other Consolidated Companies.
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SECTION 9.02 NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Credit Documents. Neither
the Administrative Agent nor any of its officers, directors, employees or agents
shall be liable for any action taken or omitted by it as such hereunder or in
connection herewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Administrative Agent shall be ministerial and
administrative in nature; the Administrative Agent shall not have by reason of
this Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, express or implied, is intended to or shall be so construed as
to impose upon the Administrative Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein.
SECTION 9.03 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
(a) Independently and without reliance upon the Administrative
Agent each Lender, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Credit Parties in connection
with the taking or not taking of any action in connection herewith, and
(ii) its own appraisal of the creditworthiness of the Credit Parties,
and, except as expressly provided in this Agreement, the Administrative
Agent shall have no duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession
before the making of the Revolving Loans or at any time or times
thereafter.
(b) The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility, priority or
sufficiency of this Agreement, the Revolving Notes, the Guaranty
Agreement, or any other documents contemplated hereby or thereby, or
the financial condition of the Credit Parties, or be required to make
any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement, the Revolving
Notes, the Guaranty Agreement, or the other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or
the existence or possible existence of any Default or Event of Default;
provided, however, to the extent that the Administrative Agent has been
advised that a Lender has not received any information formally
delivered to the Administrative Agent pursuant to Section 6.07, the
Administrative Agent shall deliver or cause to be delivered such
information to such Lender.
SECTION 9.04 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until the Administrative
Agent shall have received instructions from the Required Lenders; and the
Administrative Agent shall not incur liability in any Person by reason of so
refraining.
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Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
SECTION 9.05 RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement, certificate,
telex, teletype or telecopier message, cable gram, radiogram, order or other
documentary, teletransmission or telephone message believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person. The
Administrative Agent may consult with legal counsel (including counsel for any
Credit Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
SECTION 9.06 INDEMNIFICATION OF ADMINISTRATIVE AGENT. To the
extent the Administrative Agent is not reimbursed and indemnified by the Credit
Parties, each Lender will reimburse and indemnify the Administrative Agent,
ratably according to the respective amounts of the Revolving Loans outstanding
under all Facilities (or if no amounts are outstanding, ratably in accordance
with the Total Commitments), in either case, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Administrative Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
SECTION 9.07 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY. With respect to its obligation to lend under this Agreement, the
Revolving Loans made by it and the Revolving Notes issued to it, the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender or holder of a Revolving Note and may exercise the same as though
it were not performing the duties specified herein; and the terms "Lenders",
"Required Lenders", "holders of Revolving Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust, financial
advisory or other business with the Consolidated Companies or any affiliate of
the Consolidated Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Consolidated
Companies for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
SECTION 9.08 HOLDERS OF REVOLVING NOTES. The Administrative
Agent may deem and treat the payee of any Revolving Note as the owner thereof
for all purposes hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with
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the Administrative Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Revolving Note shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Revolving Note or of any Revolving Note
or Revolving Notes issued in exchange therefor.
SECTION 9.09 SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and Borrower and may be removed
at any time with or without cause by the Required Lenders; PROVIDED,
however, the Administrative Agent may not resign or be removed until a
successor Administrative Agent has been appointed and shall have
accepted such appointment. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor
Administrative Agent subject to Borrower's prior written approval, so
long as no Event of Default has occur-red and is continuing, which
approval 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 30 days after
the retiring Administrative Agent's giving of notice of resignation or
the Required Lenders' removal of the retiring Administrative Agent,
than the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent subject to Borrower's prior
written approval, which shall be a bank which maintains an office in
the United States of America, or a commercial bank organized under the
laws of the United States of America or any State thereof, or any
Affiliate of such bank, having a combined capital and surplus of at
least $100,000,000. If at any time SunTrust Bank, Central Florida is
removed as a Lender, SunTrust Bank, Central Florida shall
simultaneously resign as Administrative Agent.
(b) Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor Administrative Agent,
such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this
Article IX shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was an Administrative Agent under
this Agreement.
SECTION 9.10 DOCUMENTATION AGENT. Each Lender designates First
Union National Bank as Documentation Agent and agrees that the Documentation
Agent shall have no duties or obligations hereunder.
SECTION 9.11 SYNDICATION AGENT. Each Lender designates
NationsBank, N.A. as Syndication Agent and agrees that the Syndication Agent
shall have no duties or obligations hereunder.
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SECTION 9.12 CO-AGENT. Each Lender designates SouthTrust Bank,
National Association as Co-Agent and agrees that the Co-Agent shall have no
duties or obligations hereunder.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01 NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth on the
signature pages hereof, or such other address or applicable teletransmission
number as such party may hereafter specify by notice to the Administrative Agent
and Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answer back is received,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, (iii) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and the appropriate confirmation is received, or (iv) if given
by any other means (including, without limitation, by air courier), when
delivered or received at the address specified in this Section; provided that
notices to the Administrative Agent shall not be effective until received.
SECTION 10.02 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the other Credit Documents, nor consent to any
departure by any Credit Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance specific
purpose for which given; provided that no amendment, waiver or consent shall,
and for the specific unless in writing and signed by all the Lenders do any of
the following: (i) waive any of the conditions specified in Section 4.01 or
4.02, (ii) increase the Revolving Loan Commitments or other contractual
obligations to Borrower under this Agreement except pursuant to Section 3.03,
(iii) reduce the principal of, or interest on, the Revolving Notes or any fees
hereunder, (iv) postpone any date fixed for the payment in respect of principal
of, or interest on, the Revolving Notes or any fees hereunder, (v) change the
percentage of the Revolving Loan Commitments or of the aggregate unpaid
principal amount of the Revolving Notes, or the number or identity of Lenders
which shall be required for the Lenders or any of them to take any action
hereunder, (vi) release any Guarantor from its obligations under any Guaranty
Agreement, (vii) modify the definition of "Required Lenders," or (viii) modify
this Section 10.02. Notwithstanding the foregoing, no amendment, Waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required here in above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or under any
other Credit Document.
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SECTION 10.03 NO WAIVER, REMEDIES CUMULATIVE. No failure or
delay on the part of the Administrative Agent, any Lender or any holder of a
Revolving Note in exercising any right or remedy hereunder or under any other
Credit Document, and no course of dealing between any Credit Party and the
Administrative Agent, any Lender or the holder of any Revolving Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or remedy hereunder or under any other Credit Document preclude any other
or farther exercise thereof or the exercise of any other right or remedy
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent, any Lender or the holder of any Revolving Note would otherwise have. No
notice to or demand on any Credit Party not required hereunder or under any
other Credit Document in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent, the Lenders or the holder of
any Revolving Note to any other or further action in any circumstances without
notice or demand.
SECTION 10.04 PAYMENT OF EXPENSES, ETC. Borrower shall:
(i) whether or not the transactions hereby contemplated
are consummated, pay all reasonable, out-of-pocket costs and expenses
of the Administrative Agent in the administration (both before and
after the execution hereof and including reasonable expenses actually
incurred relating to advice of counsel as to the rights and duties of
the Administrative Agent and the Lenders with respect thereto) of, and
in connection with the preparation, execution and delivery of,
preservation of rights under, enforcement of, and, after a Default or
Event of Default, refinancing, renegotiation or restructuring of, this
Agreement and the other Credit Documents and the documents and
instruments referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the Administrative
Agent), and in the case of enforcement of this Agreement or any Credit
Document after an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel), for any of the
Lenders;
(ii) subject, in the case of certain Taxes, to the
applicable provisions of Section 3.08(b), pay and hold each of the
Lenders harmless from and against any and all present and future stamp,
documentary, and other similar Taxes with respect to this Agreement,
the Revolving Notes and any other Credit Documents, any collateral
described therein, or any payments due thereunder, and save each Lender
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such Taxes; and
(iii) indemnified the Administrative Agent and each Lender
and each director, officer, employee, affiliate and agent thereof
(each, an "Indemnitee") from, and hold each of them harmless against,
and reimburse each Indemnitee, upon its demand, for any losses, claims,
damages, liabilities or other expenses ("Losses") incurred by such
Indemnitee insofar as such Losses arise out of or are in any way
related to or result from
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this Agreement, the Revolving Notes or any other Credit Documents or
the financing provided hereby, including, without limitation, Losses
arising in connection with any legal proceeding relating to any of the
foregoing (whether or not such Indemnitee is a party thereto) and the
reasonable attorneys fees and expenses actually incurred in connection
therewith; provided, however, that the foregoing shall not apply to any
Losses resulting from the gross negligence or willful misconduct of
such Indemnitee.
(iv) without limiting the indemnities set forth in
subsection (iii) above, indemnify each indemnitee for any and all
expenses and costs (including without limitation, remedial, removal,
response, abatement, cleanup, investigative, closure and monitoring
costs), losses, claims (including claims for contribution or indemnity
and including the cost of investigating or defending any claim and
whether or not such claim is ultimately defeated, and whether such
claim arose before, during or after any Credit Party's ownership,
operation, possession or control of its business, property or
facilities or before, on or after the date hereof, and including also
any amounts paid incidental to any compromise or settlement by the
Indemnitee or Indemnitees to the holders of any such claim), lawsuits,
liabilities, obligations, actions, judgments, suits, disbursements,
encumbrances, liens, damages (including Without limitation damages for
contamination or destruction of natural resources), penalties and fines
of any kind or nature whatsoever (including without limitation in all
cases the reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith) incurred, suffered or
sustained by that Indemnitee based upon, arising under or relating to
Environmental Laws based on, arising out of or relating to in whole or
in part, the existence or exercise of any rights or remedies by any
Indemnitee under this Agreement, any other Credit Document or any
related documents (but excluding those incur-red, suffered or sustained
by any Indemnitee as a result of any action taken by or on behalf of
the Lenders with respect to any Subsidiary of Borrower (or the assets
thereof owned or controlled by the Lenders.
If and to the extent that the obligations of Borrower under this Section 10.04
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.05 RIGHT OF SETOFF. In addition to and not in
limitation of all rights of offset that any Lender or other holder of a
Revolving Note may have under applicable law, each Lender or other holder of a
Revolving Note shall, upon the occurrence of any Event of Default and whether or
not such Lender or such holder has made any demand or any Credit Party's
obligations are matured, have the right to appropriate and apply to the payment
of any Credit Party's obligations hereunder and under the other Credit
Documents, all deposits of any Credit Party (general or special, time or demand,
provisional or final) then or thereafter held by and other indebtedness or
property then or thereafter owing by such Lender or other holder to any Credit
Party, whether or not related to this Agreement or any transaction hereunder.
Each Lender shall promptly notify Borrower of any offset hereunder.
SECTION 10.06 BENEFIT OF AGREEMENT.
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(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns
of the parties hereto, provided that Borrower may not assign or
transfer any of its interest hereunder without the prior written
consent of the Lenders.
(b) Any Lender may make, carry or transfer Revolving Loans at,
to or for the account of, any of its branch offices or the office of an
Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion
of any of its Revolving Loan Commitments and the Revolving Loans at the
time owing to it and the Revolving Notes held by it) to any Eligible
Assignee; PROVIDED, HOWEVER, that (i) the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, Borrower
must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld or delayed) unless such assignment
is an Affiliate of the assigning Lender, (ii) the amount of the
Revolving Loan Commitments of the assigning
Lender subject to each assignment (determined as of the date the
assignment and acceptance With respect to such assignment is delivered
to the Administrative Agent) shall not be less than $10,000,000, and
(iii) the parties to each such assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
Revolving Note or Notes subject to such assignment and, unless such
assignment is to an Affiliate of such Lender, a processing and
recordation fee of $2,500. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any
Lender or the Administrative Agent in connection with such assignment.
From and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business
Days after the execution thereof, the assignee thereunder shall be a
party hereto and to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement. Within five (5) Business Days after receipt of
the notice and the Assignment and Acceptance, Borrower, at its own
expense, shall execute and deliver to the Administrative Agent, in
exchange for the surrendered Revolving Note or Notes, a new Revolving
Note or Notes to the order of such assignee in a principal amount equal
to the applicable Revolving Loan Commitments or Revolving Loans assumed
by it pursuant to such Assignment and Acceptance and new Revolving Note
or Notes to the assigning Lender in the amount of its retained
Revolving Loan Commitment or Commitments or amount of its retained
Revolving Loans. Such new Revolving Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of
such surrendered Revolving Note or Notes, shall be dated the date of
the surrendered Revolving Note or Notes which they replace, and shall
otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Borrower or the
Administrative Agent, sell participation's without restriction to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion
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of its Revolving Loan Commitments in the Revolving Loans owing to it
and the Revolving Notes held by it), produced 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 participating bank
or other entity shall not be entitled to the benefit (except through
its selling Lender) of the cost protection provisions contained in
Article III of this Agreement, and (iv) Borrower and the Administrative
Agent and other Lenders shall continue to deal solely and directly with
each Lender in connection with such Lender's rights and obligations
under this Agreement and the other Credit Documents, and such Lender
shall retain the sole right to enforce the obligations of Borrower
relating to the Revolving Loans and to approve any amendment,
modification or waiver of any provisions of this Agreement. Any Lender
selling a participation hereunder shall provide prompt written notice
to Borrower of the name of such participant.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
proposed assignee or participant any information relating to Borrower
or the other Consolidated Companies furnished to such Lender by or on
behalf of Borrower or any other Consolidated Company. With respect to
any disclosure of confidential, non-public, proprietary information,
such proposed assignee or participant shall agree to use the
information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the
information in any manner prohibited by any law, including without
limitation, the securities laws of the United States of America. The
proposed participant or assignee shall agree not to disclose any of
such information except (i) to directors, employees, auditors or
counsel to whom it is necessary to show such information, each of whom
shall be informed of the confidential nature of the information, (ii)
in any statement or testimony pursuant to a subpoena or order by any
court, governmental body or other agency asserting jurisdiction over
such entity, or as otherwise required by law (provided prior notice is
given to Borrower and the Administrative Agent unless otherwise
prohibited by the subpoena, order or law), and (iii) upon the request
or demand of any regulatory agency or authority with proper
jurisdiction. The proposed participant or assignee shall further agree
to return all documents or other written material and copies thereof
received from any Lender, the Administrative Agent or Borrower relating
to such confidential information unless otherwise properly disposed of
by such entity.
(f) Any Lender may at any time assign all or any portion of
its rights in this Agreement and the Revolving Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release
the Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 3.08(b) have been
levied or imposed so as to require withholdings or deductions by
Borrower and payment by Borrower of additional amounts to any Lender as
a result thereof, (ii) any Lender shall make demand for payment of any
material additional amounts as compensation for increased costs
pursuant to Section 3.1 1 or for its reduced rate of return pursuant to
Section 3.17, or (iii) any Lender shall decline to consent to a
modification or waiver of the terms of this
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Agreement or the other Credit Documents requested by Borrower, then and
in such event, upon request from Borrower delivered to such Lender and
the Administrative Agent, such Lender shall assign, in accordance with
the provisions of Section 10.06(c), all of its rights and obligations
under this Agreement and the other Credit Documents to another Lender
or an Eligible Assignee selected by Borrower, in consideration for the
payment by such assignee to the Lender of the principal of, and
interest on, the outstanding Revolving Loans accrued to the date of
such assignment, and the assumption of such Lender's Revolving Loan
Commitment hereunder, together with any and all other amounts owing to
such Lender under any provisions of this Agreement or the other Credit
Documents accrued to the date of such assignment.
SECTION 10.07 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE REVOLVING NOTES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE REVOLVING NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA, OR AM OTHER
COURT OF THE STATE OF GEORGIA OR OF THE UNITED STATES OF AMERICA FOR
THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY
JURY, AND BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) BORROWER HEREBY IRREVOCABLY DESIGNATES THE CORPORATION
SERVICE COMPANY, ATLANTA, GEORGIA, AS ITS DESIGNEE, APPOINTEE AND LOCAL
AGENT TO RECEIVE, FOR AND ON BEHALF OF BORROWER, SERVICE OF PROCESS IN
SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR THE REVOLVING NOTES OR ANY DOCUMENT
RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON
SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY
THE SERVER OF SUCH PROCESS BY MAIL TO BORROWER AT ITS ADDRESS SET FORTH
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OPPOSITE ITS SIGNATURE BELOW, BUT THE FAILURE OF BORROWER TO RECEIVE
SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS.
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED) OR CERTIFIED MAIL, POSTAGE
PREPAID, TO BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the
Administrative Agent, any Lender, any holder of a Revolving Note or any
Credit Party to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against Borrower in
any other jurisdiction.
SECTION 10.08 INDEPENDENT NATURE OF LENDERS' RIGHTS. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Revolving Notes, and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
SECTION 10.09 COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
SECTION 10.10 EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which all of the parties hereto shall have signed
a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent pursuant to
Section 10.01 or, in the case of the Lenders, shall have given to the
Administrative Agent written or telex notice (actually received) that
the same has been signed and mailed to them.
(b) The obligations of Borrower under Sections 3.08(b), 3.11,
3.13, 3.14, 3.17, and 10.04 hereof shall survive for ninety (90) days
after the payment in full of the Revolving Notes after the Final
Maturity Date. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant
to this Agreement shall survive the execution and delivery of this
Agreement, the other Credit Documents, and such other agreements and
documents, the making of the Revolving Loans hereunder, and the
execution and delivery of the Revolving Notes.
SECTION 10.11 SEVERABILITY. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be invalid,
illegal or unenforceable, in whole or in part, in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
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obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 10.12 INDEPENDENCE OF COVENANTS. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitation of, another
covenant, shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
SECTION 10.13 CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR
TAX LAWS. If (i) any preparation of the financial statements referred to in
Section 6.07 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accounts (or successors
thereto or agencies with similar functions) (other than changes mandated by FASB
106) result in a material change in the method of calculation of financial
covenants, standards or terms found in this Agreement, (ii) there is any change
in Borrower's fiscal quarter or fiscal year, or (iii) there is a material change
in federal tax laws which materially affects any of the Consolidated Companies'
ability to comply with the financial covenants, standards or terms found in this
Agreement, Borrower and the Required Lenders agree to enter into negotiations in
order to amend such provisions so as to equitably reflect such changes with the
desired result that the criteria for evaluating any of the Consolidated
Companies' financial condition shall be the same after such changes as if such
changes had not been made. Unless and until such provisions have been so
amended, the provisions of this Agreement shall govern.
SECTION 10.14 HEADINGS DESCRIPTIVE, ENTIRE AGREEMENT. The
headings of the several sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
SECTION 10.15 TIME IS OF THE ESSENCE. Time is of the essence
in interpreting and performing this Agreement and all other Credit Documents.
SECTION 10.16 USURY. It is the intent of the parties hereto
not to violate any federal or state law, rule or regulation pertaining either to
usury or to the contracting for or charging or collecting of interest, and
Borrower and Lenders agree that, should any provision of this agreement or of
the Revolving Notes, or any act performed hereunder or thereunder, violate any
such law, rule or regulation, then the excess of interest contracted for or
charged or collected over the maximum lawful rate of interest shall be applied
to the outstanding principal indebtedness due to lenders by Borrower under this
Agreement.
69
<PAGE>
SECTION 10.17 CONSTRUCTION. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party who itself or through its agents prepared the same, it being agreed
that Borrower, the Administrative Agent, the Lenders and their respective agents
have participated in the preparation hereof
SECTION 10.18 WAIVER OF EFFECT OF CORPORATE SEAL. Borrower
represents and warrants that it is not required to affix its corporate seal to
this Agreement or any other Credit Document pursuant to any Requirement of Law
and waives any shortening of the statute of limitations that may result from not
affixing the corporate seal to this Agreement or the other Credit Documents.
70
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in Atlanta, Georgia, by their duly
authorized officers as of the day and year first above written.
ADDRESS FOR NOTICES: BORROWER:
20 N. Orange Avenue HUGHES SUPPLY, INC.
Suite 200
Orlando, Florida 32801
Attention: J. Stephen Zepf. By:
--------------------------------------
J. Stephen Zepf
Treasurer
By:
--------------------------------------
Ben Butterfield
Secretary
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
71
<PAGE>
ADDRESS FOR. NOTICES: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
200 S. Orange Avenue Administrative Agent
MC 2064
Orlando, Florida 32801
Attn: Mr. William C. Barr By:
--------------------------------------
Name:
Telecopy No. 407/237-4076 Title:
PAYMENT OFFICE:
200 S. Orange Avenue
MC 2064
Orlando, Florida 32801
- ------------------------------------
Revolving Loan Commitment: $41,250,000.00
Pro Rata Share of Revolving Loan Commitment: 18.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: FIRST UNION NATIONAL BANK, individually
and as Documentation Agent
225 Water Street
4th Floor
Mail Code FL0060
Jacksonville, Florida 32202 By:
Attn: Mr. Michael L. Williamson --------------------------------------
Name: Michael L. Williamson
Title: Vice President
Telecopy No. 904/361-3560
PAYMENT OFFICE:
100 S. Ashley Drive
Suite 1000
Mail Code FL4009
Tampa, Florida 32602
Attn: Ms. Mary Doonan
- --------------------------------------
Revolving Loan Commitment: $37,500,000.00
Pro Rata Share of Revolving Loan Commitment: 16.67%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: NATIONSBANK, N.A., individually and as
Syndication Agent
100 SE 2nd Street, 14th Floor
Miami, Florida 33131
Attn: Mr. Richard Starke By:
-----------------------------------
Name:
Title:
Telecopy No.
PAYMENT OFFICE:
NationsBank, N.A.
101 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Ms. Deon Wright
- --------------------------------------
Revolving Loan Conunitment: $37,500,000.00
Pro Rata Share of Revolving Loan Conunitment: 16.67%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SOUTHTRUST BANK, NATIONAL
ASSOCIATION, individually and as
420 N. 20th Street Co-Agent
Birmingham, AL 35203
Attn: FL Corp. Banking, 9th Floor
By:
------------------------------
Telecopy No. 727/898-5319 Name:
Title:
PAYMENT OFFICE:
P.O. Box 830716
Birmingham, AL 35203
- -----------------------------------
Revolving Loan Commitment: $30,000,000.00
Pro Rata Share of Revolving Loan Commitment: 13.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES:
ABN AMRO Bank N.V.
Southeast Financial Center
200 S. Biscayne Boulevard, 22nd Floor
Miami, Florida 33131-5311
Attn: Ms. Deborah Day Orozco
By:
-----------------------------
Telecopy No.: (305) 577-0825 Name: Deborah Day Orozco
Title: Vice President
PAYMENT OFFICE:
208 S. LaSalle Street, Suite 1500 By:
Chicago, IL 60604-1003 -----------------------------
Attention: Loan Administration Name: Miguel Castillo
Title: Corporate Officer
Telephone: (312) 992-5152
Fax: (312) 992-5157
- -------------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 8.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: PNC BANK, N.A.
249 5th Avenue
Pittsburgh, Pennsylvania 15222
Attn: Mr. James D. Neil By:
--------------------------------
Name: James D. Neil
Telecopy No. 412/762-6484 Title: Vice President
PAYMENT OFFICE:
Two PNC Plaza/ Liberty Avenue
Pittsburgh, Pennsylvania 15222
Attn: Ms. Anita Truchman
- ---------------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 8.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: WACHOVIA BANK, N.A.
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Mr. Shawn Janko
By:
----------------------------
Name: Shawn Janko
Title: Banking Officer
Telecopy No. (404) 332-5016
PAYMENT OFFICE:
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Ms. Sharon Westmoreland
- ---------------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 8.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: THE FIFTH THIRD BANK
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Mr. Kevin J. Walter. By:
-------------------------------
Name:
Telecopy No. 513/579-5226 Title:
PAYMENT OFFICE:
NM 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Ms. Megan Heisel
- -------------------------------------
Revolving Loan Commitment: $11,250,000.00
Pro Rata Share of Revolving Loan Commitment: 5.00%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: HIBERNIA NATIONAL BANK
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Kristie Peychaud. By:
------------------------------
Name:
Telecopy No. 504/533-5344 Title:
PAYMENT OFFICE:
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Shelly Strada
- --------------------------------------
Revolving Loan Commitment: $11,250,000.00
Pro Rata Share of Revolving Loan Commitment: 5.00%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
<PAGE>
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (the "First
Amendment") is made and entered into as of September 29, 1999, by and among
HUGHES SUPPLY, INC. ("Borrower"), a Florida corporation, SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, a national banking association, FIRST UNION
NATIONAL BANK, a national banking association, BANK OF AMERICA, N.A., formerly
known as NATIONSBANK, N.A., a national banking association, SOUTHTRUST BANK,
NATIONAL ASSOCIATION, a national banking association, ABN AMRO BANK, N.V., a
banking corporation organized under the laws of the Netherlands, PNC BANK, N.A.,
a national banking association, WACHOVIA BANK, N.A., a national banking
association, THE FIFTH THIRD BANK, a national banking association, HIBERNIA
NATIONAL BANK, a national banking association and such other financial
institutions becoming a party hereto from time to time, (individually, a
"Lender" and collectively, the "Lenders"), SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), FIRST UNION NATIONAL BANK, as documentation agent
for the Lenders (in such capacity, the "Documentation Agent"), BANK OF AMERICA,
N.A., formerly known as NATIONSBANK, N.A., as syndication agent for the Lenders
(in such capacity, the "Syndication Agent") and SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as Co-Agent for the Lenders (in such capacity, the "Co-Agent").
W I T N E S S E T H:
WHEREAS, the Lenders, the Administrative Agent, the Documentation
Agent, the Syndication Agent, the Co-Agent and the Borrower are party to that
certain Revolving Credit Agreement dated as of January 26, 1999 (the "Revolving
Credit Agreement"), pursuant to which the Lenders made available to Borrower
credit facilities subject to the terms and conditions set forth therein; and
WHEREAS, the Lenders, the Administrative Agent, the Documentation
Agent, the Syndication Agent, the Co-Agent and the Borrower, at the request of
the Borrower, desire to (i) increase the aggregate principal amount of Revolving
Loan Commitments by $50,000,000 to $275,000,000 pursuant to Section 3.03 of the
Revolving Credit Agreement and (ii) amend certain terms of the Revolving Credit
Agreement, all as more particularly set forth below.
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, the parties hereto, intending to be legally bound, hereby
amend the Revolving Credit Agreement and agree as follows:
1. The Revolving Credit Agreement is hereby amended by replacing the
first Recital in its entirety with the following:
WHEREAS, Borrower has requested that the Lenders establish a
$275,000,000 revolving credit facility in favor of Borrower, and
subject to the terms and conditions
<PAGE>
contained herein, the Lenders are willing to establish such revolving
credit facility in favor of Borrower subject to the terms and
conditions set forth below;
2. The Revolving Credit Agreement is hereby amended by replacing the
definition of "Revolving Loan Commitment" or "Commitment" in Section 1.01 in its
entirety with the following:
"REVOLVING LOAN COMMITMENT" or "COMMITMENT" shall mean, at any
time for any Lender, the amount of such commitment set forth opposite
such Lender's name on the signature pages of the First Amendment to
Revolving Credit Agreement, dated as of September 29, 1999, by and
among the Borrower, the Administrative Agent, the Documentation Agent,
the Syndication Agent, the Co-Agent and the Lenders, or in any
assignment hereafter executed by any assignee of a Lender pursuant to
Section 10.06, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section 2.03, any
assignment thereof pursuant to Section 10.06, or any amendment thereof
pursuant to Section 10.02.
3. The Revolving Credit Agreement is hereby amended by replacing
Section 6.08(c) in its entirety with the following:
(c) MINIMUM NET WORTH. Maintain a Consolidated Net Worth of
not less than (i) $365,000,000 plus (ii) 50% of Consolidated Net Income
(but not Consolidated Net Loss) for each fiscal quarter ended after
January 30, 1998 and on or prior to the date of determination.
4. The Revolving Credit Agreement is hereby amended by replacing
Section 6.08(d) in its entirety with the following:
(d) DIVIDENDS. Not declare or pay any dividend on its capital
stock, or make any payment to purchase, redeem, retire or acquire any
of its Subordinated Debt or capital stock or any option, warrant, or
other right to acquire such Subordinated Debt or capital stock, other
than:
(i) dividends payable solely in shares of capital
stock;
(ii) any payments made for the repurchase of
outstanding capital stock previously issued by Borrower in an
aggregate amount at any time not to exceed $60,000,000; and
(iii) cash dividends declared and paid and all other
such payments made, after January 29, 1993, in an aggregate
amount at any time not to exceed (x) $1,000,000, plus (y) 50%
of Consolidated Net Income (or minus 100% of Consolidated Net
Loss) earned during Borrower's fiscal year ended January 29,
1993, and thereafter (such period to be treated as one
accounting period); PROVIDED, FURTHER, however, no such
dividend or other payment may be declared or paid
2
<PAGE>
pursuant to clause (ii) or (iii) above unless no Default or
Event of Default exists at the time of such declaration or
payment, or would exist as a result of such declaration or
payment.
5. The Revolving Credit Agreement is hereby amended by replacing
Section 7.05 in its entirety with the following:
SECTION 7.05 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property
which any Consolidated Company intends to use for substantially the
same purpose or purposes as the property being sold or transferred,
except to the extent that at the time any such property is sold and
leased back, and after giving effect thereto, the aggregate amount paid
(whether in cash or otherwise) for all such property sold and leased
back by the Consolidated Companies since the Closing Date does not
exceed five percent (5%) of the Consolidated Companies' total assets as
reported in the most recent audited annual financial statements
delivered to the Administrative Agent pursuant to Section 6.07(a).
6. The effectiveness of this Amendment is conditioned upon the
Administrative Agent's receipt of the following, each dated as of the date
hereof, in form and substance reasonably satisfactory in all respects to the
Administrative Agent:
(a) The duly executed original counterparts of this First
Amendment;
(b) The duly completed Revolving Notes evidencing the
Revolving Loan Commitments, as increased by this First Amendment;
(c) The duly executed Consent and Ratification of Guaranty
(Revolving Credit Agreement), dated as of the date hereof, by and among
each of the Subsidiaries of Borrower, listed on the signature pages
thereof, the Administrative Agent, the Documentation Agent, the
Syndication Agent, the Co-Agent and the Lenders;
(d) Certificates of the Secretary or Assistant Secretary of
each of the Credit Parties certifying (i) the name, title and true
signature of each officer of such entities executing this First
Amendment and the other Credit Documents, (ii) the bylaws or comparable
governing documents of such entities, and (iii) the certificates or
articles of incorporation of each Credit Party;
(e) Certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of
incorporation or organization of such Credit Party; and
3
<PAGE>
(f) The favorable opinion of counsel to the Credit Parties
addressed to the Administrative Agent, the Documentation Agent, the
Syndication Agent, the Co-Agent and each of the Lenders.
7. Borrower represents and warrants that as of the date hereof and
after giving effect to the transactions contemplated by the First Amendment and
the Credit Documents, (i) the assets of Borrower, at fair valuation and based on
their present fair saleable value, will exceed Borrower's debts, including
contingent liabilities, (ii) the remaining capital of Borrower will not be
unreasonably small to conduct Borrower's business, and (iii) Borrower will not
have incurred debts, or have intended to incur debts, beyond its ability to pay
such debts as they mature. For purposes of this paragraph, "debt" means any
liability on a claim, and "claim" means (a) the right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (b) the right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
8. Except as expressly provided herein, the Revolving Credit Agreement
shall continue in full force and effect, and the unamended terms and conditions
of the Revolving Credit Agreement are expressly incorporated herein and ratified
and confirmed in all respects. This First Amendment is not intended to be or to
create, nor shall it be construed as, a novation or an accord and satisfaction.
9. From and after the date hereof, references to the Revolving Credit
Agreement shall be references to the Revolving Credit Agreement as amended
hereby.
10. This First Amendment constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. Neither this First
Amendment nor any provision hereof may be changed, waived, discharged, modified
or terminated orally, but only by an instrument in writing signed by the parties
required to be a party thereto pursuant to Section 10.02 of the Revolving Credit
Agreement.
11. THIS FIRST AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
12. This First Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which, taken
together, shall constitute one and the same document, and shall be effective as
of the date first above written.
13. Borrower shall reimburse the Administrative Agent for the
reasonable fees and expenses of counsel for the Administrative Agent in
connection with this First Amendment.
4
<PAGE>
IN WITNESS WHEREOF, Borrower, the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Co-Agent and the Lenders have
caused this First Amendment to be executed as of the date first above written.
ADDRESS FOR NOTICES: BORROWER:
20 N. Orange Avenue HUGHES SUPPLY, INC.
Suite 200
Orlando, Florida 32801
Attention: J. Stephen Zepf By:_______________________________
J. Stephen Zepf
Treasurer
By:_______________________________
Ben Butterfield
Secretary
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
200 S. Orange Avenue Administrative Agent
MC 2064
Orlando, Florida 32801
Attn: Mr. William C. Barr By: ______________________________
William C. Barr, III
Telecopy No. 407/237-4076 First Vice President
PAYMENT OFFICE:
200 S. Orange Avenue
MC 2064
Orlando, Florida 32801
- --------------------------------
Revolving Loan Commitment: $58,750,000.00
Pro Rata Share of Revolving Loan Commitment: 21.36364%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: FIRST UNION NATIONAL BANK, individually
and as Documentation Agent
225 Water Street
4th Floor
Mail Code FL0060
Jacksonville, Florida 32202 By:_______________________________
Attn: Mr. Mike Carlin Name:
Title:
Telecopy No. 904/361-3560
PAYMENT OFFICE:
100 S. Ashley Drive
Suite 1000
Mail Code FL4009
Tampa, Florida 32602
Attn: Ms. Mary Doonan
- --------------------------------
Revolving Loan Commitment: $45,833,333.33
Pro Rata Share of Revolving Loan Commitment: 16.66667%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: BANK OF AMERICA, N.A., formerly known as
NATIONSBANK, N.A., individually and as
Syndication Agent
100 SE 2nd Street, 14th Floor
Miami, Florida 33131
Attn: Mr. Richard Starke By:_______________________________
Name:
Telecopy No. Title:
PAYMENT OFFICE:
Bank of America, N.A.
101 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Ms. Deon Wright
- -------------------------------
Revolving Loan Commitment: $50,833,333.33
Pro Rata Share of Revolving Loan Commitment: 18.48485%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SOUTHTRUST BANK, NATIONAL
ASSOCIATION, individually
420 North 20th Street and as Co-Agent
Birmingham, AL 35203
Attn: Florida Corporate Banking (Orlando) By:_____________________________
Name:
Telecopy No. 727/898-5319 Title:
PAYMENT OFFICE:
P.O. Box 830716
Birmingham, AL 35283-0716
Attn: Ms. Joanne Gundling (727/825-2733)
Telecopy No. 727/898-5419
- --------------------------------
Revolving Loan Commitment: $30,000,000
Pro Rata Share of Revolving Loan Commitment: 10.90909%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES:
ABN AMRO BANK, N.V.
Southwest Financial Center
200 S. Biscayne Boulevard, 22nd Floor
Miami, Florida 33131-5311
Attn: Ms. Deborah Day Orozco
By:_______________________________
Telecopy No. (305)372-2397 Name:
Title:
By:_______________________________
Name:
Title:
- --------------------------------
Revolving Loan Commitment: $22,916,666.67
Pro Rata Share of Revolving Loan Commitment: 8.33333%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: PNC BANK, N.A.
249 5th Avenue
Pittsburgh, Pennsylvania 15222
Attn: Mr. Doug King By:______________________________
Name:
Telecopy No. 412/762-6484 Title:
PAYMENT OFFICE:
Two PNC Plaza/ Liberty Avenue.
Pittsburgh, Pennsylvania 15222
Attn: Ms. Joan McMahon
- --------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 6.81818%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES:
WACHOVIA BANK, N.A.
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Mr. Bill McCamey
By:______________________________
Telecopy No. (404)332-5016 Name:
Title:
PAYMENT OFFICE:
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Ms. Sharon Westmoreland
- --------------------------------
Revolving Loan Commitment: $22,916,666.67
Pro Rata Share of Revolving Loan Commitment: 8.33333%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: THE FIFTH THIRD BANK
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Mr. Kevin J. Walter By:_______________________________
Name:
Telecopy No. 513/579-5226 Title:
PAYMENT OFFICE:
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Ms. Megan Heisel
- --------------------------------
Revolving Loan Commitment: $13,750,000.00
Pro Rata Share of Revolving Loan Commitment: 5.00000%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: HIBERNIA NATIONAL BANK
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Kristie Peychaud By:_______________________________
Name:
Telecopy No. 504/533-5344 Title:
PAYMENT OFFICE:
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Shelly Strada
- --------------------------------
Revolving Loan Commitment: $11,250,000.00
Pro Rata Share of Revolving Loan Commitment: 4.09091%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
LINE OF CREDIT AGREEMENT
Dated as of January 26 , 1999
By And Among
HUGHES SUPPLY, INC.
AND
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
FIRST UNION NATIONAL BANK,
individually and as Documentation Agent,
NATIONSBANK, N.A.,
individually and as Syndication Agent
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
individually and as Co-Agent,
ABN AMRO BANK, N.V.,
PNC BANK, N.A.,
WACHOVIA BANK, N.A.,
THE FIFTH THIRD BANK,
HIBERNIA NATIONAL BANK and
other financial institutions becoming a party hereto
====================================================================
King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Carolyn Zander Alford
(404) 572-4600
<PAGE>
TABLE OF CONTENTS
PAGE
DEFINITIONS; CONSTRUCTION......................................................2
Definitions...........................................................2
Accounting Terms and Determination...................................18
Other Definitional Terms.............................................18
Exhibits and Schedules...............................................18
LINE OF CREDIT COMMITMENT.....................................................18
Line of Credit Commitment; Use of Proceeds...........................18
Line of Credit Notes; Repayment of Principal.........................19
Voluntary Reduction of Line of Credit Commitments....................19
Extension of the Line of Credit Termination Date.....................20
GENERAL LOAN TERMS............................................................20
Funding Notices......................................................20
Disbursement of Funds................................................22
Interest.............................................................23
Interest Periods.....................................................25
Fees.................................................................26
Voluntary Prepayments of Borrowings..................................26
Payments, Etc........................................................27
Interest Rate Not Ascertainable, Etc.................................28
Illegality...........................................................29
Increased Costs......................................................29
Lending Offices......................................................31
Funding Losses.......................................................31
Assumptions Concerning Funding of Eurodollar Advances................31
Apportionment of Payments............................................32
Sharing of Payments, Etc.............................................32
Capital Adequacy.....................................................32
Benefits to Guarantors...............................................33
Limitation On Certain Payment Obligations............................33
CONDITIONS TO BORROWINGS......................................................34
Conditions Precedent to Initial Line of Credit Loans.................34
Conditions to All Line of Credit Loans...............................36
Representations and Warranties.......................................37
Organization and Qualification.......................................37
Corporate Authority..................................................38
Financial Statements.................................................38
Tax Returns..........................................................38
Actions Pending......................................................38
Representations; No Defaults.........................................38
Title to Properties..................................................39
-ii-
<PAGE>
Enforceability of Agreement..........................................39
Consent..............................................................39
Use of Proceeds; Federal Reserve Regulations.........................39
Erisa................................................................39
Subsidiaries.........................................................40
Outstanding Indebtedness.............................................40
Conflicting Agreements...............................................40
Pollution and Other Regulations......................................41
Possession of Franchises, Licenses, Etc..............................42
Patents, Etc.........................................................42
Governmental Consent.................................................42
Disclosure...........................................................43
Insurance Coverage...................................................43
Labor Matters........................................................43
Intercompany Loans; Dividends........................................43
Burdensome Restrictions..............................................44
Investment Company Act, Etc..........................................44
Notice of Non-compliance With Laws...................................44
Year 2000 Issues.....................................................44
AFFIRMATIVE COVENANTS.........................................................44
Corporate Existence, Etc.............................................44
Compliance With Laws, Etc............................................45
Payment of Taxes and Claims, Etc.....................................45
Keeping of Books.....................................................45
Visitation, Inspection, Etc..........................................45
Insurance; Maintenance of Properties.................................45
Reporting Covenants..................................................46
Financial Covenants..................................................49
Notices Under Certain Other Indebtedness.............................50
Additional Guarantors................................................50
Financial Statements; Fiscal Year....................................50
Ownership of Guarantors..............................................50
NEGATIVE COVENANTS............................................................51
Indebtedness.........................................................51
Liens................................................................51
Mergers, Acquisitions, Sales, Etc....................................52
Investments, Loans, Etc..............................................53
Sale and Leaseback Transactions......................................54
Transactions With Affiliates.........................................54
Optional Prepayments.................................................54
Changes in Business..................................................54
Erisa................................................................54
Additional Negative Pledges..........................................55
Limitation On Payment Restrictions Affecting Consolidated Companies..55
-iii-
<PAGE>
Actions Under Certain Documents......................................55
EVENTS OF DEFAULT.............................................................55
Payments.............................................................55
Covenants Without Notice.............................................56
Other Covenants......................................................56
Representations......................................................56
Non-payments of Other Indebtedness...................................56
Defaults Under Other Agreements......................................56
Bankruptcy...........................................................56
Erisa................................................................57
Money Judgment.......................................................57
Ownership of Credit Parties and Pledged Entities.....................58
Change in Control of Borrower........................................58
Default Under Other Credit Documents.................................58
Attachments..........................................................58
THE AGENT.....................................................................59
Appointment of Administrative Agent..................................59
Nature of Duties of Administrative Agent.............................59
Lack of Reliance On the Administrative Agent.........................59
Certain Rights of the Administrative Agent...........................60
Reliance by Administrative Agent.....................................60
Indemnification of Administrative Agent..............................60
the Administrative Agent in Its Individual Capacity..................61
Holders of Line of Credit Notes......................................61
Successor Administrative Agent.......................................61
Documentation Agent..................................................62
Syndication Agent....................................................62
MISCELLANEOUS.................................................................62
Notices..............................................................62
Amendments, Etc......................................................63
No Waiver; Remedies Cumulative.......................................63
Payment of Expenses, Etc.............................................63
Right of Setoff......................................................65
Benefit of Agreement.................................................65
Governing Law; Submission to Jurisdiction............................67
Independent Nature of Lenders'rights.................................68
Counterparts.........................................................68
Effectiveness; Survival..............................................69
Severability.........................................................69
Independence of Covenants............................................69
Change in Accounting Principles, Fiscal Year or Tax Laws.............69
Headings Descriptive; Entire Agreement...............................70
Time is of the Essence...............................................70
Usury................................................................70
-iv-
<PAGE>
Construction.........................................................70
Waiver of Effect of Corporate Seal...................................70
In..........................................................71
-v-
<PAGE>
SCHEDULES
---------
SCHEDULE 5.01 Organization and Ownership of Subsidiaries
SCHEDULE 5.11 Employee Benefit Matters
SCHEDULE 5.14 Conflicting Agreements
SCHEDULE 5.15(A) Environmental Compliance
SCHEDULE 5.22 Intercompany Loans
SCHEDULE 7.01(B) Existing Indebtedness
SCHEDULE 7.02 Existing Liens
EXHIBITS
--------
EXHIBIT A Form of Syndicate Note
EXHIBIT B Form of Competitive Bid Note
EXHIBIT C Form of Closing Certificate
EXHIBIT D Form of Assignment and Acceptance
-vi
<PAGE>
LINE OF CREDIT AGREEMENT
THIS LINE OF CREDIT AGREEMENT, dated as of January 26, 1999
(the "Agreement") by and among HUGHES SUPPLY, INC. ("Borrower"), a Florida
corporation, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, ("SunTrust
Bank, Central Florida") a national banking association, FIRST UNION NATIONAL
BANK, a national banking association, NATIONSBANK, N.A., a national banking
association, SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking
association, ABN AMRO BANK, N.V., a banking corporation organized under the laws
of the Netherlands, PNC BANK, N.A., a national banking association, WACHOVIA
BANK, N.A., a national banking association, THE FIFTH THIRD BANK, a national
banking association, HIBERNIA NATIONAL BANK, a national banking association and
such other financial institutions becoming a party hereto from time to time,
(individually, a "Lender" and collectively, the "Lenders"), SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), FIRST UNION NATIONAL BANK, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), NATIONSBANK, N.A., as syndication agent for the Lenders (in such
capacity, the "Syndication Agent"), and SOUTHTRUST BANK, NATIONAL ASSOCIATION,
as Co-agent for the Lenders (in such capacity, the "Co-Agent").
W I T N E S S E T H :
WHEREAS, Borrower has requested that the Lenders establish a
$75,000,000 line of credit facility in favor of Borrower, and subject to the
terms and conditions contained herein, the Lenders are willing to establish such
line of credit facility in favor of Borrower subject to the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the mutual covenants made
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. As used in this Agreement, and in
any instrument, certificate, document or report delivered pursuant hereto, the
following terms shall have the following meanings (to be equally applicable to
both the singular and plural forms of the term defined):
<PAGE>
"ADMINISTRATIVE AGENT" shall mean SunTrust Bank, Central
Florida, a national banking association, as administrative agent for the Lenders
hereunder and under the other Credit Documents, and each successor
administrative agent.
"ADJUSTED LIBO RATE" shall mean with respect to each Interest
Period for a Eurodollar Advance, the rate obtained by dividing (A) LIBOR for
such Interest Period by (B) a percentage equal to 1 MINUS the then stated
maximum rate (stated as a decimal) of all reserves requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurodollar liabilities as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D). The Administrative Agent
shall promptly notify the Borrower of any such reserve requirements that become
applicable.
"ADVANCE" shall mean any principal amount advanced and
remaining outstanding at any time under the Line of Credit Loans, which Advance
shall be made or outstanding as a Base Rate Advance, Competitive Bid Advance or
Eurodollar Advance, as the case may be.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"AGENTS" shall mean, collectively, the Administrative Agent,
the Documentation Agent, the Syndication Agent and the Co-Agent.
"AGREEMENT" shall mean this Line of Credit Agreement, either
as originally executed or as it may be from time to time supplemented, amended,
restated, renewed or extended and in effect.
"APPLICABLE FACILITY FEE PERCENTAGE" shall mean the percentage
designated below based on Borrower's Leverage Ratio for the most recently ended
fiscal quarter for which financial statements have been delivered pursuant to
Section 6.07(a) or (b):
Leverage Ratio Applicable Facility Fee Percentage
for Line of Credit Commitments:
- ---------------------------------------- -------------------------------------
Less than 0.4:1.0 0.125%
- ---------------------------------------- -------------------------------------
Greater than or equal to 0.4:1.0 but
less than 0.45:1.0 0.15%
- ---------------------------------------- -------------------------------------
<PAGE>
Greater than or equal to 0.45:1.0 but
less than 0.5:1.0 0.175%
- ---------------------------------------- -------------------------------------
Greater than or equal to 0.5:1.0 but
less than 0.55:1.0 0.225%
- ---------------------------------------- -------------------------------------
Greater than or equal to 0.55:1.0
0.275%
- ---------------------------------------- -------------------------------------
PROVIDED, HOWEVER, that:
(a) The Applicable Facility Fee Percentage in effect as of the
date of execution and delivery of this Agreement is .175% for the Line
of Credit Commitments, and such percentage shall remain in effect until
such time as the Applicable Facility Fee Percentage may be adjusted as
hereinafter provided; and
(b) Adjustments, if any, to the Applicable Facility Fee
Percentages based on changes in the ratios set forth above shall be
made and become effective on the first day of the fiscal quarter
immediately following delivery of the financial statements required
pursuant to Section 6.07(b), and (ii) on the first day of the second
fiscal quarter immediately following the last day of any fiscal year of
Borrower.
(c) Notwithstanding the foregoing, at any time during which
Borrower has failed to deliver the financial statements and
certificates when required by Section 6.07(a) and (b), as the case may
be, the Applicable Facility Fee Percentage shall be 0.275% until such
time as the delinquent financial statements are delivered at which time
the Applicable Facility Fee Percentage shall be reset as provided
above.
"APPLICABLE MARGIN" shall mean the percentage designated below
based on Borrower's Leverage Ratio for the most recently ended fiscal quarter
for which financial statements have been delivered pursuant to Section 6.07(a)
or (b):
- ---------------------------------------- -------------------------------------
Leverage Ratio Applicable Margin for Line of
Credit Commitments:
- ---------------------------------------- -------------------------------------
Less than 0.4:1.0 0.275%
- ---------------------------------------- -------------------------------------
Greater than or equal to 0.4:1.0 but
less than 0.45:1.0 0.35%
- ---------------------------------------- -------------------------------------
Greater than or equal to 0.45:1.0 but
less than 0.5:1.0 0.575%
- ---------------------------------------- -------------------------------------
-4-
<PAGE>
Greater than or equal to 0.5:1.0 but
less than 0.55:1.0 0.65%
- ---------------------------------------- -------------------------------------
Greater than or equal to 0.55:1.0
0.85%
- ---------------------------------------- -------------------------------------
PROVIDED, HOWEVER, that:
(a) The Applicable Margin in effect as of the date of
execution and delivery of this Agreement is .575% for the Line of
Credit Commitments, and such percentage shall remain in effect until
such time as the Applicable Margin may be adjusted as hereinafter
provided; and
(b) Adjustments, if any, to the Applicable Margin based on
changes in the ratios set forth above shall be made and become
effective on the first day of the fiscal quarter immediately following
delivery of the financial statements required pursuant to Section
6.07(b), and (ii) on the first day of the second fiscal quarter
immediately following the last day of any fiscal year of Borrower.
(c) Notwithstanding the foregoing, at any time during which
Borrower has failed to deliver the financial statements and
certificates when required by Section 6.07(a) and (b), as the case may
be, the Applicable Margin shall be 0.85% until such time as the
delinquent financial statements are delivered at which time the
Applicable Margin shall be reset as provided above
"ASBESTOS LAWS" means the common law in all federal, state and
local and foreign jurisdictions and other laws in such jurisdictions, and
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, now or hereafter in effect relating
to or concerning asbestos or asbestos-containing material, including without
limitation, exposure to asbestos or asbestos-containing material.
"ASSET VALUE" shall mean, with respect to any property or
asset of any Consolidated Company as of any particular date, an amount equal to
the greater of (i) the then book value of such property or asset as established
in accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors of such Consolidated
Company.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in accordance with
the terms of this Agreement and substantially in the form of Exhibit D.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C.ss.101 ET SEQ.).
-5-
<PAGE>
"BASE RATE" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates) the higher
of (a) the rate which the Administrative Agent designates from time to time to
be its prime lending rate, as in effect from time to time, and (b) the Federal
Funds Rate, as in effect from time to time, PLUS one-half of one percent (0.50%)
per annum. The Administrative Agent's prime lending rate is a reference rate and
does not necessarily represent the lowest or best rate charged to customers;
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate.
"BASE RATE ADVANCE" shall mean an Advance bearing interest
based on the Base Rate.
"BASE RATE LOAN" shall mean any Line of Credit Loan hereunder
which bears interest at the Base Rate.
"BORROWING" shall mean the incurrence by Borrower under any
Facility of Advances of one Type concurrently having the same Interest Period or
the continuation or conversion of an existing Borrowing or Borrowings in whole
or in part.
"BUSINESS DAY" shall mean, with respect to Eurodollar Loans,
any day other than a day on which commercial banks are closed or required to be
closed for domestic and international business, including dealings in Dollar
deposits on the London interbank market, and with respect to all other Line of
Credit Loans and matters, any day other than Saturday, Sunday and a day on which
commercial banks are required to be closed for business in Atlanta, Georgia, or
Orlando, Florida.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all lease
obligations which have been or are required to be, in accordance with GAAP,
capitalized on the books of the lessee.
"CERCLA" has the meaning set forth in Section 5.15(a) of this
Agreement.
"CHANGE IN CONTROL PROVISION" shall mean any term or provision
contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Indebtedness of Borrower evidencing debt or a commitment
to extend loans in excess of $5,000,000 which requires, or permits the holder(s)
of such Indebtedness of Borrower to require that such Indebtedness of Borrower
be redeemed, repurchased, defeased, prepaid or repaid, either in whole or in
part, or the maturity of such Indebtedness of Borrower to be accelerated in any
respect, as a result of a change in ownership of the capital stock of Borrower
or voting rights with respect thereto.
"CLOSING DATE" shall mean the date on or before January 26,
1999, on which the initial Line of Credit Loans are made and the conditions set
forth in Section 4.01 are satisfied or waived in accordance with Section 10.02.
-6-
<PAGE>
"CO-AGENT" shall mean SouthTrust Bank, National Association, a
national banking association, as co-agent for the Lenders hereunder and under
the other Credit Documents, and each successor co-agent.
"COMMITMENT LETTER" shall mean that certain letter agreement,
dated as of December 21, 1998, executed by SunTrust Equitable Securities
Corporation, SunTrust Bank, Central Florida, and First Union National Bank and
acknowledged and agreed to by the Borrower.
"COMPETITIVE BID ADVANCE" shall mean an Advance bearing
interest based on a Competitive Bid Rate.
"COMPETITIVE BID LOAN" shall mean a Line of Credit Loan made
by a Lender on a competitive bid basis as provided in Article II.
"COMPETITIVE BID NOTE" shall mean a promissory note evidencing
Competitive Bid Loans in the form attached hereto as EXHIBIT B.
"COMPETITIVE BID RATE" shall mean the interest rate charged by
a Lender on a Competitive Bid Loan.
"CONSOLIDATED AMORTIZATION" shall mean, for any fiscal period
of the Borrower, amortization of the Consolidated Companies for such period
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower
and all of its Subsidiaries.
"CONSOLIDATED DEPRECIATION" shall mean, for any fiscal period
of the Borrower, depreciation of the Consolidated Companies for such period
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED EBITR" shall mean, for any fiscal period of the
Borrower, an amount equal to Consolidated Net Income (Loss) for such period,
PLUS, to the extent deducted in determining Consolidated Net Income (Loss), (i)
Consolidated Tax Expense for such period, (ii) Consolidated Interest Expense for
such period, and (iii) Consolidated Rental Expense for such period.
"CONSOLIDATED EBITDAR" shall mean, for any fiscal period of
the Borrower, an amount equal to Consolidated Net Income (Loss) for such period
PLUS to the extent deducted in determining Consolidated Net Income (Loss), (i)
Consolidated Interest Expense for such period, (ii) Consolidated Tax Expense for
such period, (iii) Consolidated Depreciation for such period,
-7-
<PAGE>
(iv) Consolidated Amortization for such period and (v) Consolidated Rental
Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal
period of Borrower, total interest expense (including without limitation,
interest expense attributable to capitalized leases in accordance with the GAAP
and any program costs incurred by Borrower in connection with sales of accounts
receivable pursuant to a securitization program) of the Consolidated Companies
for such period, determined on a consolidated basis.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal
period of Borrower, the net income (or loss) of the Consolidated Companies for
such period (taken as a single accounting period) determined on a consolidated
basis in conformity with GAAP; PROVIDED THAT there shall be excluded therefrom
(i) any items of gain or loss which were included in determining such
Consolidated Net Income and were not realized in the ordinary course of business
or the result of a sale of assets other than in the ordinary course of business;
and (ii) the income (or loss) of any party accrued prior to the date such
becomes a Subsidiary of Borrower or is merged into or consolidated with Borrower
or any of its Subsidiaries, or such party's assets are acquired by any
Consolidated Company, unless such party is acquired in a transaction accounted
for as a pooling of interests.
"CONSOLIDATED NET WORTH" shall mean as of the date of
determination, the Borrower's total shareholder's equity of such date as
determined in accordance with GAAP.
"CONSOLIDATED RENTAL EXPENSE" shall mean, for any fiscal
period of Borrower, total operating lease expense of the Consolidated Companies
for such period, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED TAX EXPENSE" shall mean, for any fiscal period
of the Borrower, tax expense of the Consolidated Companies for such period
determined on a consolidated basis in accordance with GAAP.
"CONTRACTUAL OBLIGATION" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement,
the Line of Credit Notes, the Guaranty Agreements, and all other Guaranty
Documents, if any.
"CREDIT PARTIES" shall mean, collectively, each of Borrower,
the Guarantors, and every other Person who, from time to time, executes a Credit
Document with respect to all or any portion of the Obligations.
"DEFAULT" shall mean any condition or event which, with notice
or lapse of time or both, would constitute an Event of Default.
-8-
<PAGE>
"DOCUMENTATION AGENT" shall mean First Union National Bank, a
national banking association, as documentation agent for the Lenders hereunder
and under the other Credit Documents, and each successor documentation agent.
"DOLLAR" and "U.S. Dollar" and the sign "$" shall mean lawful
money of the United States of America.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized
under the laws of the United States of America, or any state thereof, , or
organized under the laws of any other country with a Lending Office in the
United States of America, having total assets in excess of $1,000,000,000 or any
commercial finance or asset-based lending Affiliate of any such commercial bank
and (ii) any Lender or any Affiliate of any Lender.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, Asbestos Laws), relating to pollution or protection of the
environment and relating to public health and safety, relating to (i) emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial toxic or hazardous constituents, substances or wastes,
including without limitation, any Hazardous Substance, petroleum including crude
oil or any fraction thereof, any petroleum product or other waste, chemicals or
substances regulated by any Environmental Law into the environment (including
without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law, and (iii) underground storage tanks and related piping, and emissions,
discharges and releases or threatened releases therefrom, such Environmental
Laws to include, without limitation (i) the Clean Air Act (42 U.S.C. ss. 7401 eT
Seq.), (ii) the Clean Water Act (33 U.S.C. ss. 1251 eT Seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 ET seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. ss. 2601 et Seq.) and (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. ss. 9601 ET SEQ.).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) which is a member of a group of
which that Person is a member and which is under common control within the
meaning of the regulations promulgated under Section 414 of the Tax Code.
"EURODOLLAR ADVANCE" shall mean an Advance bearing interest
based on the Adjusted LIBO Rate.
-9-
<PAGE>
"EURODOLLAR LOAN" shall mean any Line of Credit Loan hereunder
which bears interest based on the Adjusted LIBO Rate.
"EVENT OF DEFAULT" shall have the meaning set forth in Article
VIII.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute thereto.
"EXECUTIVE OFFICER" shall mean with respect to any Person
(other than a Guarantor), the President, Vice Presidents, Chief Financial
Officer, Treasurer, Secretary and any Person holding comparable offices or
duties, and with respect to a Guarantor, the President.
"EXTENSION OF CREDIT" shall mean the making of a Line of
Credit Loan or the conversion of a Line of Credit Loan of one Type into a Line
of Credit Loan of another Type.
"FACILITY" or "FACILITIES" shall mean the Line of Credit
Commitment and Line of Credit Loans.
"FACILITY FEE" shall have the meaning assigned to such term in
Section 3.05(a).
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative
Agent.
"FEE LETTER" shall mean that certain letter agreement, dated
as of December 21, 1998, executed by SunTrust Equitable Securities Corporation,
SunTrust Bank, Central Florida and First Union National Bank and acknowledged
and agreed to by the Borrower, pursuant to which the Borrower agreed to pay
certain fees specified in such letter agreement.
"FEES" shall mean, collectively, the Facility Fee and any
other fees specified in the Fee Letter.
"FINAL MATURITY DATE" shall mean the date on which all
commitments have been terminated and all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
pursuant to the provisions of Article VIII.
"FIXED CHARGE COVERAGE RATIO" shall mean, as of any date of
determination, the ratio of (A) Consolidated EBITDAR to (B) the sum of (i)
Consolidated Interest Expense plus (ii) Consolidated Rental Expense, in each
case measured for the four fiscal quarter period ending on
-10-
<PAGE>
such date (or if such date is not the last day of any fiscal quarter, for the
four fiscal quarter period ending immediately prior to such date).
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease, dividend, or
other obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner including, without limitation, any obligation or
arrangement of such Person (a) to purchase or repurchase any such primary
obligation, (b) to advance or supply funds (i) for the purchase or payment of
any such primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet condition of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) to indemnify the owner of such
primary obligation against loss in respect thereof.
"GUARANTORS" shall mean, collectively, each Material
Subsidiary of the Borrower that has executed the Guaranty Agreement as of the
Closing Date, together with all other Material Subsidiaries that hereafter
execute supplements to the Guaranty Agreement, and their respective successors
and permitted assigns.
"GUARANTY AGREEMENT" shall mean the Subsidiary Guaranty
Agreement, dated as of the date hereof, executed by certain of Borrower's
Subsidiaries in favor of the Lenders and the Administrative Agent, as the same
may be amended, restated or supplemented from time to time.
"GUARANTY DOCUMENTS" shall mean, collectively, the Guaranty
Agreement, and each other guaranty agreement, mortgage, deed of trust, security
agreement, pledge agreement, or other security or collateral document
guaranteeing or securing the Obligations, as the same may be amended, restated,
or supplemented from time to time.
"HAZARDOUS MATERIALS" shall mean oil, petroleum or chemical
liquids or solids, liquid or gaseous products, asbestos, or any other hazardous
waste or hazardous substances, including, without limitation, hazardous medical
waste or any other substance described in any Hazardous Materials Law.
"HAZARDOUS MATERIALS LAW" shall mean the Comprehensive
Environmental Response Compensation and Liability Act as amended by the Super
Fund Amendments and Reauthorization Act, 42 U.S.C. ss. 9601, the Resource
Conservation and Recovery Act, 42 U.S.C.
-11-
<PAGE>
ss. 6901, the state hazardous waste laws, as such laws may from time to time be
in effect, and related regulations, and all similar laws and regulations.
"HAZARDOUS SUBSTANCES" has the meaning assigned to that term
in CERCLA.
"HUGHES FAMILY" shall mean (i) David H. Hughes, Vincent S.
Hughes, Russell V. Hughes, (ii) any of their direct family members (including,
without limitation, lineal ancestors and descendants, siblings, and lineal
descendants of siblings), (iii) any trusts and profit sharing plans and stock
option plans established for the sole benefit of the foregoing, and (iv) the
heirs and personal representatives of the foregoing.
"INDEBTEDNESS" of any Person shall mean, without duplication
(i) all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase price
of property or services, and obligations evidenced by bonds, debentures, notes
or other similar instruments); (ii) all Guaranteed Indebtedness of such Person
(including contingent reimbursements obligations under undrawn financial letters
of credit but not performance letters of credit) (iii) all Capitalized Lease
Obligations; (iv) all Indebtedness of others secured by any Lien upon property
owned by such Person, whether or not assumed; and (v) all obligations or other
liabilities under currency contracts, interest rate contracts, interest rate
protection agreements or similar agreements or combinations thereof.
Notwithstanding the foregoing, in determining the Indebtedness of any Person,
there shall be included all obligations of such Person of the character referred
to in clauses (i) through (v) above deemed to be extinguished under GAAP but for
which such Person remains legally liable except to the extent that such
obligations (x) have been defeased in accordance with the terms of the
applicable instruments governing such obligations and (y) the accounts or other
assets dedicated to such defeasance are not included as assets on the balance
sheet of such Person.
"INTERCOMPANY LOAN DOCUMENTS" shall mean, collectively, the
promissory notes and all related loan, subordination, and other agreements, to
the extent that they exist, relating in any manner to the Intercompany Loans.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans
more particularly described on SCHEDULE 5.22 and (ii) those loans or other
extensions of credit made by any Consolidated Company to another Consolidated
Company satisfying the terms and conditions set forth in Section 7.01 or as may
otherwise be approved in writing by the Administrative Agent and the Required
Lenders.
"INTEREST PERIOD" shall mean (i) with respect to Competitive
Bid Loans, such periods agreed upon between Borrower and Lenders, and (ii) with
respect to Eurodollar Advances, the period of 1, 2, 3 or 6 months selected by
the Borrower, in case of clause (ii) pursuant to the terms of the credit
facility and subject to customary adjustments in duration; PROVIDED, that (a)
the first day of an Interest Period must be a Business Day, (b) any Interest
Period that would otherwise end on a day that is not a Business Day for
Eurodollar Loans shall
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<PAGE>
be extended to the next succeeding Business Day for Eurodollar Loans, unless
such Business Day falls in the next calendar month, in which case the Interest
Period shall end on the next preceding Business Day for Eurodollar Loans, and
(c) Borrower may not elect an Interest Period that would extend beyond the Line
of Credit Termination Date.
"INVESTMENT" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"LENDER" or "LENDERS" shall mean the banks and lending
institutions listed on the signature pages hereof, and each assignee thereof, if
any, pursuant to Section 10.06.
"LENDING OFFICE" shall mean for each Lender the office such
Lender may designate in writing from time to time to Borrower and the
Administrative Agent with respect to each Type of Line of Credit Loan.
"LEVERAGE RATIO" shall mean, as of any date of determination,
the ratio of Total Funded Debt as of such date to Total Capitalization as of
such date.
"LIBOR" shall mean, for any Interest Period, the offered rates
for deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Telerate Page 3750, as of 11:00 a.m. London time on the day
that is two business days prior to the Interest Period. If at least two such
rates appear on the Telerate Page 3750, the rate for that Interest Period will
be the arithmetic mean of such rates, rounded, if necessary, to the next higher
1/16 of 1.0%. If the foregoing rate is unavailable from the Telerate Page 3750
for any reason, then such rate shall be determined by the Administrative Agent
from the Reuters Screen LIBOR Page, or if such rate is also unavailable on such
service, then on any other interest rate reporting service of recognized
standing designated in writing by the Administrative Agent to Borrower and the
Lenders; in any such case rounded, if necessary, to the next higher 1/16 of
1.0%, if the rate is not such a multiple.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capital lease in the nature thereof
including any lease or similar arrangement with a public authority executed in
connection with the issuance of industrial development revenue bonds or
pollution control revenue bonds, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
"LINE OF CREDIT COMMITMENT" OR "COMMITMENT" shall mean at any
time for any Lender, the amount of such commitment set forth opposite such
Lender's name on the signature pages hereof or in any assignment hereafter
executed by any assignee of a Lender pursuant to
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Section 10.06, as the same may be increased or decreased from time to time as a
result of any reduction thereof pursuant to Section 2.03, any assignment thereof
pursuant to Section 10.06, or any amendment thereof pursuant to Section 10.02.
"LINE OF CREDIT LOANS" or "LOANS" shall mean, collectively,
the line of credit loans made to Borrower by the Lenders pursuant to Section
2.01.
"LINE OF CREDIT NOTE" shall mean any of the Syndicate Notes or
the Competitive Bid Notes either as originally executed or as the same may be
from time to time supplemented, modified, amended, renewed or extended.
"LINE OF CREDIT TERMINATION DATE" shall mean the earlier of
(i) January 25, 2000 and (ii) the date on which the Line of Credit Commitments
are terminated in accordance with Article VIII.
"MATERIALLY ADVERSE EFFECT" shall mean the occurrence of an
event, which would (i) cause the recognition of a liability, as required by
Statement of Financial Accounting Standards No. 5, in the current quarter
financial statements in the amount of $15,000,000 or more, or (ii) cause an
auditor to have a substantial doubt about the ability of Borrower to continue as
a going concern after consideration of management's plans as described in
Statement of Auditing Standards, No. 59.
"MATERIAL SUBSIDIARY" shall mean each Subsidiary of Borrower,
now existing or hereinafter established or acquired, that at any time prior to
the Final Maturity Date, has or acquires total assets in excess of $1,000,000 or
that accounted for or produced more than 5% of the Consolidated EBITR of
Borrower on a consolidated basis during any of the three most recently completed
fiscal years of Borrower.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NOTICE OF BORROWING" shall have the meaning provided in
Section 3.01.
"NOTICE OF CONTINUATION/CONVERSION" shall have the meaning
provided in Section 3.01.
"OBLIGATIONS" shall mean all amounts owing to the Agents and
all Lenders pursuant to the terms of this Agreement or any other Credit
Document, including without limitation, all Line of Credit Loans (including all
principal and interest payments due thereunder), fees, expenses, indemnification
and reimbursement obligations, payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising, together with all
renewals, extensions, modifications or refinancings thereof.
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"PAYMENT OFFICE" shall mean, for any Lender, the "Payment
Office" listed on its signature page to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
and any successor thereto.
"PERMITTED LIENS" shall mean those Liens expressly permitted
by Section 7.02.
"PERSON" shall mean and shall include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
association, a government or any department or agency thereof and any other
entity whatsoever.
"PLAN" shall mean any employee benefit plan, program,
arrangement, practice or contract, maintained by or on behalf of the Borrower or
an ERISA Affiliate, which provides benefits or compensation to or on behalf of
employees or former employees, whether formal or informal, whether or not
written, including but not limited to the following types of plans:
(i) EXECUTIVE ARRANGEMENTS - any bonus, incentive
compensation, stock option, deferred compensation, commission,
severance, "golden parachute", "rabbi trust", or other executive
compensation plan, program, contract, arrangement or practice;
(ii) ERISA PLANS - any "employee benefit plan" as defined
in Section 3(3) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension plan,
savings or thrift plan, stock bonus plan, employee stock ownership
plan, Multiemployer Plan, or any plan, fund, program, arrangement or
practice providing for medical (including post-retirement medical),
hospitalization, accident, sickness, disability, or life insurance
benefits;
(iii) OTHER EMPLOYEE FRINGE BENEFITS - any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay
or other fringe benefit plan, program, arrangement, contract or
practice.
"PRO RATA SHARE" shall mean, with respect to each of the Line
of Credit Commitments of each Lender and each Line of Credit Loan to be made by
and each payment (including, without limitation, any payment of principal,
interest or fees) to be made to each Lender, the percentage designated as such
Lender's Pro Rata Share of such Line of Credit Commitments, such Line of Credit
Loans or such payments, as applicable, set forth under the name of such Lender
on the respective signature page for such Lender or in any assignment hereafter
executed by an assignee of a Lender pursuant to Section 10.06, in each case as
such Pro Rata Share may change from time to time as a result of assignments or
amendments made pursuant to this Agreement.
"REGULATION D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
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"REQUIRED LENDERS" shall mean, at any time, Lenders holding at
least sixty-six and two-thirds percent (66 2/3%) of the then aggregate amount of
the Line of Credit Commitments and the aggregate outstanding Line of Credit
Loans.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"REUTERS SCREEN" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuter Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"REVOLVING CREDIT AGREEMENT" shall mean that certain Revolving
Credit Agreement, dated as of the date hereof, by and among Borrower, SunTrust
Bank, Central Florida, as Administrative Agent, First Union National Bank, as
Documentation Agent, NationsBank N.A., as Syndication Agent, SouthTrust Bank,
National Association, as Co-Agent, and the banks and lending institutions from
time to time parties thereto, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"SUBORDINATED DEBT" shall mean all Indebtedness of Borrower
and its Subsidiaries subordinated to all obligations of Borrower and its
Subsidiaries or any other Credit Party arising under this Agreement, the Line of
Credit Notes and the Guaranty Agreement on terms and conditions satisfactory in
all respects to the Administrative Agent and the Required Lenders, including
without limitation, with respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Administrative Agent and
Required Lenders.
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all classes
of voting stock or other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such Person, either directly
or indirectly through one or more other Subsidiaries.
"SYNDICATE LOAN" shall mean the Line of Credit Loans made to
Borrower hereunder other than Competitive Bid Loans.
"SYNDICATE NOTE" shall mean a promissory note evidencing
Syndicate Loans in the form attached hereto as EXHIBIT A.
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"SYNDICATION AGENT" shall mean NationsBank, N.A., a national
banking association, as syndication agent for the Lenders hereunder and under
the other Credit Documents, and each successor syndication agent.
"TAX CODE" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"TAXES" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the United States of
America, or any state, local or foreign government or by any department, agency
or other political subdivision or taxing authority thereof or therein and all
interest, penalties, additions to tax and similar liabilities with respect
thereto.
"TELERATE" shall mean, when used in connection with any
designated page and "LIBOR," the display page so designated on the Dow Jones
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to "LIBOR").
"TOTAL CAPITALIZATION" shall mean, as of any date of
determination, the sum of (i) Total Funded Debt PLUS (ii) Consolidated Net Worth
as of such date.
"TOTAL COMMITMENT" shall mean the sum of the Lenders' Line of
Credit Commitments as such Total Commitment may be reduced by voluntary
reduction, prepayment or nonrenewal of a Lender's Line of Credit Commitment as
provided herein.
"TOTAL FUNDED DEBT" shall mean all Indebtedness of the
Consolidated Companies that by its terms or by the terms of any instrument or
agreement relating thereto matures, or which is otherwise payable or unpaid, one
year or more from, or is directly or indirectly renewable or extendable at the
option of the debtor to a date one year or more (including an option of the
debtor under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of one year or more) from, the date of
the creation thereof, provided that Total Funded Debt shall include, as at any
date of determination, any portion of such Indebtedness outstanding on such date
which matures on demand or within one year from such date (whether by sinking
fund, other required prepayment, or final payment at maturity) and shall also
include all Indebtedness of the Consolidated Companies for borrowed money under
a line of credit, guidance line, revolving credit, bankers acceptance facility
or similar arrangement for borrowed money, including, without limitation, all
unpaid drawings under letters of credit and unreimbursed amounts pursuant to
letter of credit reimbursement agreements, regardless of the maturity date
thereof.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances, Eurodollar Advances or Competitive Bid Advances.
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"UNITED STATES OF AMERICA" shall mean the fifty (50) States
and the District of Columbia
"WHOLLY OWNED SUBSIDIARY" shall mean any Subsidiary, all the
stock or ownership interest of every class of which, except directors'
qualifying shares, shall, at the time as of which any determination is being
made, be owned by Borrower either directly or indirectly.
"YEAR 2000 ISSUES" shall mean the actual and anticipated
costs, claims, losses, and liabilities associated with the inability of certain
computer and software applications to effectively handle data that includes
dates prior to, on, spanning or after January 1, 2000, as such inability in
respect of any Consolidated Company affects the business, operations, and
financial condition of any Consolidated Company.
SECTION 1.2. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms shall be construed
herein, all accounting determinations hereunder shall be made, all financial
statements required to be delivered hereunder shall be prepared, and all
financial records shall be maintained in accordance with, GAAP.
SECTION 1.3. OTHER DEFINITIONAL TERMS. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule, Exhibit and like references are
to this Agreement unless otherwise specified.
SECTION 1.4. EXHIBITS AND SCHEDULES. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
ARTICLE 2
LINE OF CREDIT COMMITMENT
SECTION 2.1. LINE OF CREDIT COMMITMENT; USE OF PROCEEDS.
(1) Subject to and upon the terms and conditions herein set
forth, each Lender severally agrees to make to Borrower from time to time on and
after the Closing Date, but prior to the Line of Credit Termination Date, Line
of Credit Loans in an aggregate amount outstanding at any time not to exceed
such Lender's Line of Credit Commitment. Borrower shall be entitled to repay and
reborrow Line of Credit Loans in accordance with the provisions hereof.
(2) Each Line of Credit Loan shall, at the option of Borrower,
be made or continued as, or converted into, part of one or more Borrowings that
shall consist entirely of Syndicate Loans (comprised of Base Rate Advances or
Eurodollar Advances) or Competitive Bid Loans. The aggregate principal amount of
each Borrowing of Line of Credit Loans
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comprised of Eurodollar Advances shall not be less than $2,000,000 or a greater
integral multiple of $100,000. The aggregate principal amount of each Borrowing
of Competitive Bid Loans shall not be less than $2,000,000. The aggregate
principal amount of each Borrowing of Line of Credit Loans comprised of Base
Rate Advances shall not be less than $250,000 or a greater integral multiple of
$10,000. At no time shall the number of Borrowings outstanding under this
Article II exceed ten; PROVIDED that, for the purpose of determining the number
of Borrowings outstanding and the minimum amount for Borrowings resulting from
conversions or continuations, all Borrowings of Base Rate Advances under this
Facility shall be considered as one Borrowing. The parties hereto agree that (i)
the aggregate principal balance of the Line of Credit Loans (including the
Competitive Bid Loans) of the Lenders as a group shall not exceed the aggregate
principal amounts of all Line of Credit Commitments, (ii) no Lender shall be
obligated to make Syndicate Loans in excess of the Line of Credit Commitment of
such Lender, (iii) no Lender shall be obligated hereunder to extend Competitive
Bid Loans or to make quotes for such Line of Credit Loans and (iv) a Lender may
elect, in its discretion, to extend Competitive Bid Loans which, either alone or
together with the Syndicate Loans of such Lender, exceed the Line of Credit
Commitment of such Lender.
(3) The proceeds of the Line of Credit Loans shall be used
solely to provide liquidity for the payment of commercial paper issued by
Borrower from time to time pursuant to the Borrower's unrated commercial paper
program with SunTrust Bank, Atlanta or any of its Affiliates. Line of Credit
Loans plus the amount of all commercial paper issued by Borrower may not at any
one time exceed seventy-five million dollars ($75,000,000).
SECTION 2.2. LINE OF CREDIT NOTES; REPAYMENT OF PRINCIPAL.
(1) Borrower's obligations to pay the principal of, and
interest on, the Syndicate Loans and the Competitive Bid Loans to each Lender
shall be evidenced by the records of the Administrative Agent and such Lender
and by the Syndicate Note and the Competitive Bid Note, respectively, payable to
such Lender (or the assignor of such Lender) completed in conformity with this
Agreement.
(2) All outstanding principal amounts under the Line of Credit
Loans shall be due and payable at the earlier of (i) the Line of Credit
Termination Date or (ii) acceleration of the indebtedness as provided in Article
VIII.
Section 2.3. VOLUNTARY REDUCTION OF LINE OF CREDIT
COMMITMENTS. Upon at least three (3) Business Days' prior telephonic notice
(promptly confirmed in writing) to the Administrative Agent, Borrower shall have
the right, without premium or penalty, to terminate the Line of Credit
Commitments, in part or in whole, provided that (i) any such termination shall
apply to proportionately and permanently reduce the Line of Credit Commitments
of each of the Lenders, (ii) any partial termination pursuant to this Section
2.03 shall be in an amount of at least $5,000,000 and integral multiples of
$1,000,000, and (iii) no such reduction shall be permitted if prohibited or
without payment of all costs required to be paid hereunder with respect to a
prepayment. If the aggregate outstanding amount of the Line of Credit Loans
exceeds the
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amount of the Line of Credit Commitments as so reduced, Borrower shall
immediately repay the Line of Credit Loans by an amount equal to such excess,
together with all accrued but unpaid interest on such excess amount and any
amounts due under Section 3.12 hereof.
SECTION 2.4. EXTENSION OF THE LINE OF CREDIT TERMINATION DATE.
Borrower may, on and before two hundred ten (210) days prior to the then current
Line of Credit Termination Date, request in writing an extension of the Line of
Credit Termination Date. The Lenders may, in the exercise of their sole
discretion, extend the Line of Credit Termination Date for an additional one
hundred eighty (180) days. The Lenders shall notify the Borrower in writing of
such election no later than one hundred eighty (180) days prior to then Line of
Credit Termination Date. If any Lender elects to extend the Line of credit
Termination Date for such one hundred eighty (180) day period beyond the Line of
Credit Termination Date, then effective as of the then current Line of Credit
Termination Date, the Line of Credit Termination Date for such Lender's Line of
Credit Commitment shall be extended to the date one hundred eighty (180) days
from the then current Line of Credit Termination Date. In the event that any
Lender elects not to extend the then current Line of Credit Termination Date,
such Lender's Line of Credit Commitment shall terminate on the then current Line
of Credit Termination Date, and all Line of Credit Loans made by such Lender to
the Borrower shall be due and payable in full on the then current Line of Credit
Termination Date. Failure by any Lender to respond to the request by the
Borrower to extend the Line of Credit Termination Date shall be deemed to be an
election by such Lender not to extend the Line of Credit Termination Date.
ARTICLE 3
GENERAL LOAN TERMS
SECTION 3.1. FUNDING NOTICES.
(1) (i) Whenever Borrower desires to make a Borrowing of
Syndicate Loans under its Line of Credit Commitments (other than one resulting
from a conversion or continuation pursuant to Section 3.01(b)(i)), it shall give
the Administrative Agent prior written notice (or telephonic notice promptly
confirmed in writing) of such Borrowing (a "Notice of Borrowing") at its Payment
Office such Notice of Borrowing to be given prior to (x) 11:00 A.M. (local time
for the Administrative Agent) one (1) Business Day prior to the requested date
of such Borrowing in the case of Base Rate Advances, (y) 11:00 A.M. (local time
for the Administrative Agent) three (3) Business Days prior to the requested
date of such Borrowing in the case of Eurodollar Advances and (z) prior to 1:00
P.M. (local time for the Administrative Agent) on the requested date of such
Borrowing in the case of Competitive Bid Advances. Notices received after 11:00
A.M. for Base Rate Advances and Eurodollar Advances and 1:00 P.M. for
Competitive Bid Advances shall be deemed received on the next Business Day. Each
Notice of Borrowing shall be irrevocable and shall specify the aggregate
principal amount of the Borrowing, the date of Borrowing (which shall be a
Business Day), and whether the Borrowing
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is to consist of Base Rate Advances or Eurodollar Advances and (in the case of
Eurodollar Advances) the Interest Period to be applicable thereto.
(ii) Whenever Borrower desires to make a Borrowing of
Competitive Bid Loans under its Line of Credit Commitments (other than one
resulting from a conversion or continuation pursuant to Section 3.01(b)(ii)), it
shall give the Administrative Agent notice that the Lenders are requested to
provide Competitive Bid Rates for Interest Periods identified by Borrower, such
Interest Periods not to exceed 180 days. Notices must comply with notice
requirements of each respective Lender, which shall be communicated by Lenders
to Borrower from time to time. Each Lender in its discretion may, but shall not
be obligated to, submit a quote to the Borrower in connection with such request.
The Borrower shall then be entitled, in its sole discretion, to elect to incur
all or any part of the Competitive Bid Loan offered by one or more of the
Lenders that have elected to provide quotes for any of the Interest Periods and
at the rate(s) quoted by such Lender(s). The Competitive Bid Loans incurred by
the Borrower in connection with such a request for quotes shall not exceed (i)
with respect to all Lenders then providing quotes, the then unutilized Line of
Credit Commitments of all Lenders as a group, and (ii) with respect to each
Lender providing a quote, the amount bid by such Lender in connection with such
Lender's quote. The Borrower shall notify the Administrative Agent and such
Lender or Lenders of its election in accordance with the procedures established
with such Lender or Lenders, having no obligation to report the terms thereof;
PROVIDED, HOWEVER, that if any Borrowing of Eurodollar Advances must be made as
Base Rate Advances as a result of a determination made by the Administrative
Agent pursuant to Section 3.09, such Notice of Borrowing may be revoked by
Borrower no later than one (1) Business Day prior to the date of funding.
(2) (i) Whenever Borrower desires to convert all or a portion
of an outstanding Borrowing of Syndicate Loans under its Line of Credit
Commitments, which Borrowing consists of Base Rate Advances into one or more
Borrowings consisting of Eurodollar Advances or to continue outstanding a
Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall
give the Administrative Agent at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each such Borrowing to
be converted into or continued as Eurodollar Advances. Such notice (a "Notice of
Continuation/Conversion") shall be given prior to 11:00 A.M. (local time for the
Administrative Agent) on the date specified at the Payment Office of the
Administrative Agent. Each such Notice of Continuation/Conversion shall be
irrevocable and shall specify the aggregate principal amount of the Advances to
be converted or continued, the date of such conversion or continuation and the
Interest Period applicable thereto. If, upon the expiration of any Interest
Period in respect of any Borrowing, Borrower shall have failed to deliver the
Notice of Continuation/Conversion, Borrower shall be deemed to have elected to
convert or continue such Borrowing to a Borrowing consisting of Base Rate
Advances. So long as any Executive Officer of Borrower has knowledge that any
Default or Event of Default shall have occurred and be continuing, no Borrowing
may be converted into or continued as (upon expiration of the current Interest
Period) Eurodollar Advances unless the Administrative Agent and each of the
Lenders
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shall have otherwise consented in writing. No conversion of any Borrowing of
Eurodollar Advances shall be permitted except on the last day of the Interest
Period in respect thereof.
(ii) Whenever Borrower desires to continue all or a portion of
an outstanding Borrowing of Competitive Bid Loans under its Line of Credit
Commitments for a new Interest Period, it may request that the Lenders provide
quotes for Competitive Bid Rates in the same manner prescribed in Section
3.01(a)(ii) for funding. Whenever Borrower desires to convert all or a portion
of an outstanding Borrowing of Competitive Bid Loans under its Line of Credit
Commitments into a Borrowing of Syndicate Loans it shall comply with the
provisions prescribed in Section 3.01(b)(i) for conversion of Syndicate Loans.
If, upon the expiration of any Interest Period in respect of any Competitive Bid
Borrowing, Borrower shall have failed to deliver the Notice of
Continuation/Conversion, or Lenders fail to provide such quotes, Borrower shall
be deemed to have elected to convert or continue such Borrowing to a Borrowing
of a Syndicate Loan consisting of Base Rate Advances. So long as any Default or
Event of Default shall have occurred and be continuing, no Borrowing may be
converted into (upon expiration of the current Interest Period) Eurodollar
Advances. No conversion of any Borrowing into Eurodollar Advances shall be
permitted except on the last day of the Interest Period in respect thereof.
(3) Without in any way limiting Borrower's obligation to
confirm in writing any telephonic notice, the Administrative Agent and the
Lenders may act without liability upon the basis of telephonic notice believed
by the Administrative Agent or the Lender in good faith to be from Borrower
prior to receipt of written confirmation. In each such case, Borrower hereby
waives the right to dispute the Administrative Agent's and the Lender's record
of the terms of such telephonic notice.
(4) The Administrative Agent shall promptly give each Lender
notice by telephone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the Administrative
Agent pursuant to this Section 3.01 with respect to the Line of Credit
Commitments.
SECTION 3.2. DISBURSEMENT OF FUNDS.
(1) No later than 11:00 A.M. (local time for the
Administrative Agent) on the date of each Borrowing of Syndicate Loans pursuant
to the Line of Credit Commitments (other than one resulting from a conversion or
continuation pursuant to Section 3.01(b)(i)), each Lender will make available
its Pro Rata Share of the amount of such Borrowing in immediately available
funds at the Payment Office of the Administrative Agent. The Administrative
Agent will make available to Borrower the aggregate of the amounts (if any) so
made available by the Lenders to the Administrative Agent in a timely manner by
crediting such amounts to Borrower's demand deposit account maintained with the
Administrative Agent or at Borrower's option, to effect a wire transfer of such
amounts to Borrower's account specified by the Borrower, by the close of
business on such Business Day. In the event that the Lenders do not make such
amounts available to the Administrative Agent by the time prescribed above, but
such amount is received
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later that day, such amount may be credited to Borrower in the manner described
in the preceding sentence on the next Business Day (with interest on such amount
to begin accruing hereunder on such next Business Day).
(2) No later than 2:00 P.M. (local time for the applicable
Lender) on the date of each Borrowing of Competitive Bid Loans (other than one
resulting from a conversion or continuation pursuant to Section 3.01(b)(ii)),
the Lender making any Competitive Bid Loan will make available the amount of
such Borrowing in immediately available funds by wire transfer to an account
specified by the Borrower, by the close of business on such Business Day on the
date of each Borrowing pursuant to the Line of Credit Commitments (other than
one resulting from a conversion or continuation pursuant to Section
3.01(b)(ii)).
(3) Unless the Administrative Agent shall have been notified
by the Lender making any Syndicate Loan prior to the date of a Borrowing that
such Lender does not intend to make available to the Administrative Agent such
Lender's portion of the Borrowing to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date and the Administrative Agent may make
available to Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify Borrower, and Borrower shall immediately pay such
corresponding amount to the Administrative Agent together with interest at the
rate specified for the Borrowing. Nothing in this subsection shall be deemed to
relieve any Lender from its obligation to fund its Line of Credit Commitments
hereunder or to prejudice any rights which Borrower may have against any Lender
as a result of any default by such Lender hereunder.
(4) All Borrowings of Syndicate Loans shall be loaned by the
Lenders on the basis of their Pro Rata Share of the Line of Credit Commitments.
All Borrowings of Competitive Bid Loans under the Line of Credit Commitments
shall be loaned by the Lenders whose quotes were accepted by the Borrower. No
Lender shall be responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make the Line of
Credit Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to fund its Line of Credit Commitments hereunder.
SECTION 3.3. INTEREST.
(1) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Syndicate Loans from the respective dates such
principal amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at rates per annum (on the basis of a 360-day year)
equal to the applicable rates indicated below:
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(i) For Base Rate Advances--The Base Rate in effect from time
to time; and
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate
plus the Applicable Margin.
(2) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Competitive Bid Loans made to Borrower from the
respective dates such principal amounts were advanced to maturity (whether by
acceleration, notice of prepayment or otherwise) at times and at rates per annum
(on the basis of a 360-day year) equal to the applicable rates agreed upon
between Borrower and the Lender making such Competitive Bid Loans.
(3) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Line of Credit Loans,
whether Syndicate Loans or Competitive Bid Loans, and all other overdue amounts
owing hereunder, shall bear interest from each date that such amounts are
overdue:
(i) in the case of overdue principal and interest with respect
to all Line of Credit Loans outstanding as Eurodollar Advances and
Competitive Bid Advances, at the rate otherwise applicable for the
then-current Interest Period PLUS an additional two percent (2.0%) per
annum; thereafter at the rate in effect for Base Rate Advances PLUS an
additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with
respect to all other Line of Credit Loans outstanding as Base Rate
Advances, and all other Obligations hereunder (other than Line of
Credit Loans), at a rate equal to the applicable Base Rate PLUS an
additional two percent (2.0%) per annum;
PROVIDED that no Line of Credit Loan shall bear interest after maturity, whether
by non-payment at scheduled due date, acceleration, notice of prepayment or
otherwise at a rate per annum less than two percent (2.0%) per annum in excess
of the rate of interest applicable thereto at maturity.
(4) Interest on each Line of Credit Loan shall accrue from and
including the date of such Line of Credit Loan to, but excluding, the date of
any repayment thereof; PROVIDED that, if a Line of Credit Loan is repaid on the
same day made, one day's interest shall be paid on such Line of Credit Loan.
Interest on all outstanding Base Rate Advances shall be payable quarterly in
arrears on the last calendar day of each fiscal quarter of Borrower in each
year. Interest on all outstanding Eurodollar Advances and Competitive Bid
Advances shall be payable on the last day of each Interest Period applicable
thereto, and, in the case of Eurodollar Advances having an Interest Period in
excess of three months, on each day which occurs every three months, as the case
may be, after the initial date of such Interest Period. Interest on all Line of
Credit Loans shall be payable on any conversion of any Advances comprising such
Line of Credit Loans into Advances of another Type, prepayment (on the amount
prepaid), at maturity (whether by acceleration, notice of prepayment or
otherwise) and, after maturity, on demand.
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(5) The Administrative Agent, upon determining the Adjusted
LIBO Rate for any Interest Period, shall promptly notify by telephone (confirmed
in writing) or in writing Borrower and the other Lenders. Any such determination
shall, absent manifest error, be final, conclusive and binding for all purposes.
A Lender making a Competitive Bid Loan has no obligation to notify any other
Lender of the interest rates charged to Borrower.
SECTION 3.4. INTEREST PERIODS.
(1) In connection with the making or continuation of, or
conversion into, each Borrowing of Syndicate Loans comprised of Eurodollar
Advances, Borrower shall select an interest period (each an "Interest Period")
to be applicable to such Eurodollar Advances, which Interest Period shall be
either a 1, 2, 3 or 6 month period; PROVIDED that:
(i) The initial Interest Period for any Borrowing of
Eurodollar Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting of
Advances of another Type) and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the
next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, PROVIDED that if any Interest Period in
respect of Eurodollar Advances would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances
which begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall,
subject to part (iv) below, expire on the last Business Day of such
calendar month;
(iv) No Interest Period shall extend beyond any date upon
which any principal payment is due with respect to the Line of Credit
Loans.
(2) When Borrower requests a quote for a Competitive Bid Loan,
the Borrower shall specify the Interest Period to be applicable to such Line of
Credit Loan, which Interest Period shall be as agreed upon by the Borrower and
such Lender; PROVIDED, HOWEVER, that (i) no Interest Period shall exceed 180
days, (ii) no Interest Period shall extend beyond the Line of Credit Termination
Date and (iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day. Interest shall be payable in respect of each Competitive Bid Loan
on the last day of each Interest Period applicable to such Competitive Bid Loan,
and at maturity (whether by acceleration or otherwise).
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SECTION 3.5. FEES.
(1) Borrower shall pay to the Administrative Agent, for the
account of and distribution of the respective Pro Rata Share to each Lender, a
facility fee (the "Facility Fee") for the period commencing on the Closing Date
to and including the Line of Credit Termination Date, computed at a rate equal
to the Applicable Facility Fee Percentage per annum MULTIPLIED by (ii) on the
daily average of the aggregate Line of Credit Commitments of the Lenders, such
fee being payable quarterly in arrears on the last calendar day of each fiscal
quarter of Borrower and on the Line of Credit Termination Date.
(2) Borrower shall pay to the Administrative Agent such other
fees as are specified, and in accordance with, the Fee Letter.
SECTION 3.6. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(1) Borrower may, at its option, prepay Borrowings consisting
of Base Rate Advances at any time in whole, or from time to time in part, in
amounts aggregating $2,500,000 or any greater integral multiple of $500,000, by
paying the principal amount to be prepaid together with interest accrued and
unpaid thereon to the date of prepayment. Those Borrowings consisting of
Eurodollar Advances may be prepaid, at Borrower's option, in whole, or from time
to time in part, in amounts aggregating $5,000,000 or any greater integral
multiple of $1,000,000, by paying the principal amount to be prepaid, together
with interest accrued and unpaid thereon to the date of prepayment and all
compensation payments pursuant to Section 3.12 if such prepayment is made on a
date other than the last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with Section 3.06(c) below.
(2) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Administrative Agent of any intended prepayment of
(i) Base Rate Advances not less than one Business Day prior to any such
prepayments and (ii) Eurodollar Advances not less than three Business Days prior
to any such prepayment. Borrower shall give written notice (or telephonic notice
confirmed in writing) to the respective Lender who made any Competitive Bid Loan
of any intended prepayment of such Competitive Bid Loan not less than one
Business Day prior to any prepayment of such Competitive Bid Loan. Such notice,
once given, shall be irrevocable. Upon receipt of such notice of prepayment
pursuant to the first sentence of this paragraph (b), the Administrative Agent
shall promptly notify each Lender of the contents of such notice and of such
Lender's share of such prepayment.
(3) Borrower, when providing notice of prepayment pursuant to
Section 3.06(b) may designate the Types of Advances and the specific Borrowing
or Borrowings which are to be prepaid, provided that (i) if any prepayment of
Eurodollar Advances made pursuant to a single Borrowing of the Line of Credit
Loans shall reduce the outstanding Advances made pursuant to such Borrowing to
an amount less than $1,000,000, such Borrowing shall
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immediately be converted into Base Rate Advances; and (ii) each prepayment made
pursuant to a single Borrowing shall be applied pro rata among the Line of
Credit Loans comprising such Borrowing, if such prepayment is not a prepayment
of a Competitive Bid Loan. All voluntary prepayments shall be applied to the
payment of any unpaid interest before application to principal.
SECTION 3.7. PAYMENTS, ETC.
(1) (i) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other than the
payments specified in clause (ii) below, shall be made without defense, set-off
or counterclaim to the Administrative Agent, not later than 2:00 P.M. (local
time for the Administrative Agent) on the date when due and shall be made in
Dollars in immediately available funds at the respective Payment Office.
(ii) Except as otherwise specifically provided herein, all
payments under this Agreement with respect to the Lenders making any Competitive
Bid Loans shall be made without defense, set-off or counterclaim to such Lender
not later than 2:00 P.M. (local time for such Lender) on the date when due and
in immediately available funds at the Payment Office of such Lender, or at any
other location of the Lender as such Lender may specify in writing to Borrower
not later than 12:00 Noon (local time for the Lender) on the Business Day such
payment is due.
(2) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this Agreement, the
Line of Credit Notes or other Credit Documents, or any payments of principal,
interest, fees or other amounts payable hereunder or thereunder (but excluding
any Taxes imposed on the overall net income of the Lenders pursuant to the laws
of the jurisdiction in which the principal executive office or appropriate
Lending Office of such Lender is located). If any Taxes are so levied or
imposed, Borrower agrees (A) to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every net payment of all amounts
due hereunder and under the Line of Credit Notes and other Credit Documents,
after withholding or deduction for or on account of any such Taxes (including
additional sums payable under this Section 3.07), will not be less than the full
amount provided for herein had no such deduction or withholding been required,
(B) to make such withholding or deduction and (C) to pay the full amount
deducted to the relevant authority in accordance with applicable law. Borrower
will furnish to the Administrative Agent and each Lender, within 30 days after
the date the payment of any Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by Borrower. Borrower will
indemnify and hold harmless the Administrative Agent and each Lender and
reimburse the Administrative Agent and each Lender upon written request for the
amount of any Taxes so levied or imposed and paid by the Administrative Agent or
Lender and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes were correctly or
illegally asserted. A certificate as to the amount of such payment by such
Lender or the Administrative Agent, absent manifest error, shall be final,
conclusive and binding for all purposes.
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(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America agrees to furnish to
Borrower and the Administrative Agent, prior to the time it becomes a Lender
hereunder, two copies of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 or any successor forms thereto (wherein such
Lender claims entitlement to complete exemption from or reduced rate of U.S.
Federal withholding tax on interest paid by Borrower hereunder) and to provide
to Borrower and the Administrative Agent a new Form 4224 or Form 1001 or any
successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of any
previously delivered form; PROVIDED, HOWEVER, that no Lender shall be required
to furnish a form under this paragraph (ii) if it is not entitled to claim an
exemption from or a reduced rate of withholding under applicable law. A Lender
that is not entitled to claim an exemption from or a reduced rate of withholding
under applicable law, promptly upon written request of Borrower, shall so inform
Borrower in writing.
(3) Subject to Section 3.04(a)(ii), whenever any payment to be
made hereunder or under any Line of Credit Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the applicable rate during such extension.
(4) On other than Competitive Bid Loans, which shall be
negotiated from time to time, all computations of interest and fees shall be
made on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed), except that interest on Base Rate Advances shall be computed on the
basis of a year of 360 days for the actual number of days. Interest on Base Rate
Advances shall be calculated based on the Base Rate from and including the date
of such Line of Credit Loan to but excluding the date of the repayment or
conversion thereof. Interest on Eurodollar Advances shall be calculated as to
each Interest Period from and including the first day thereof to but excluding
the last day thereof. Each determination by the Administrative Agent or the
Lender making any Competitive Bid Loan of an interest rate or fee hereunder
shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
(5) Payment by Borrower to the Administrative Agent in
accordance with the terms of this Agreement shall, as to Borrower, constitute
payment to the Lenders under this Agreement.
SECTION 3.8. INTEREST RATE NOT ASCERTAINABLE, ETC. In the
event that the Administrative Agent, in the case of the Adjusted LIBO Rate,
shall have determined (which determination shall be made in good faith and,
absent manifest error, shall be final, conclusive and binding upon all parties)
that on any date for determining the Adjusted LIBO Rate for any Interest Period,
by reason of any changes arising after the date of this Agreement affecting the
London interbank market or the Administrative Agent's position in such market,
adequate and
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fair means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Adjusted LIBO Rate then, and in any such
event, the Administrative Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the Lenders of such determination and a
summary of the basis for such determination. Until the Administrative Agent
notifies Borrower that the circumstances giving rise to the suspension described
herein no longer exist, the obligations of the Lenders to make or permit
portions of the Line of Credit Loans to remain outstanding past the last day of
the then current Interest Periods as Eurodollar Advances shall be suspended, and
such affected Advances shall bear the same interest as Base Rate Advances.
SECTION 3.9. ILLEGALITY.
(1) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to Borrower
and to the Administrative Agent of such determination and a summary of the basis
for such determination (which notice the Administrative Agent shall promptly
transmit to the other Lenders).
(2) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of Eurodollar
Advances as a Base Rate Advance, provided, Borrower does not negotiate a
Competitive Bid Loan, which Base Rate Advance shall, for all other purposes, be
considered part of such Borrowing, and (ii) if the affected Eurodollar Advance
or Advances are then outstanding, Borrower shall immediately, or if permitted by
applicable law, no later than the date permitted thereby, upon at least one
Business Day's written notice to the Administrative Agent and the affected
Lender, convert each such Advance into an Advance or Advances of a different
Type with an Interest Period ending on the date on which the Interest Period
applicable to the affected Eurodollar Advances expires, provided that if more
than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 3.09(b).
SECTION 3.10. INCREASED COSTS.
(1) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (y) the compliance with any guideline or request
from any central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
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(i) any Lender (or its applicable Lending Office) shall be
subject to any tax, duty or other charge with respect to its Eurodollar
Advances or its obligation to make Eurodollar Advances, or the basis of
taxation of payments to any Lender of the principal of or interest on
its Eurodollar Advances or its obligation to make Eurodollar Advances
shall have changed (except for changes in the tax on the overall net
income of such Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive office or
applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any imposed
by the Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender's applicable Lending
Office shall be imposed or deemed applicable or any other condition
affecting its Eurodollar Advances or its obligation to make Eurodollar
Advances shall be imposed on any Lender or its applicable Lending
Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Advances), or there shall be a reduction in
the amount received or receivable by such Lender or its applicable Lending
Office, then Borrower shall from time to time (subject, in the case of certain
Taxes, to the applicable provisions of Section 3.07(b)), upon written notice
from and demand by such Lender on Borrower (with a copy of such notice and
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender within five Business Days after the date of such notice
and demand, additional amounts sufficient to indemnify such Lender against such
increased cost. A certificate as to the amount of such increased cost, submitted
to Borrower and the Administrative Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
(2) If any Lender shall advise the Administrative Agent that
at any time, because of the circumstances described in clauses (x) or (y) in
Section 3.10(a) or any other circumstances beyond such Lender's reasonable
control arising after the date of this Agreement affecting such Lender or the
London interbank market or the United States of America secondary certificate of
deposit market or such Lender's position in such markets, the Adjusted LIBO
Rate, as determined by the Administrative Agent, will not adequately and fairly
reflect the cost to such Lender of funding its Eurodollar Advances, then, and in
any such event:
(i) the Administrative Agent shall forthwith give notice (by
telephone confirmed in writing) to Borrower and to the other Lenders of
such advice;
(ii) Borrower's right to request and such Lender's obligation
to make or permit portions of the Line of Credit Loans to remain
outstanding past the last day of the then current Interest Periods as
Eurodollar Advances shall be immediately suspended; and
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(iii) such Lender shall make a Line of Credit Loan as part of
the requested Borrowing of Eurodollar Advances, as the case may be, as
a Base Rate Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
SECTION 3.11. LENDING OFFICES.
(1) Each Lender agrees that, if requested by Borrower, it will
use reasonable efforts (subject to overall policy considerations of such Lender)
to designate an alternate Lending Office with respect to any of its Eurodollar
Advances affected by the matters or circumstances described in Sections 3.07(b),
3.08, 3.09 or 3.10 to reduce the liability of Borrower or avoid the results
provided thereunder, so long as such designation is not disadvantageous to such
Lender as determined by such Lender, which determination if made in good faith,
shall be conclusive and binding on all parties hereto. Nothing in this Section
3.11 shall affect or postpone any of the obligations of Borrower or any right of
any Lender provided hereunder.
(2) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with respect
to the closing of its lending offices in the United States of America such that
any withholdings or deductions and additional payments with respect to Taxes may
be required to be made by Borrower thereafter pursuant to Section 3.07(b), such
Lender shall use reasonable efforts to furnish Borrower notice thereof as soon
as practicable thereafter; PROVIDED, HOWEVER, that no delay or failure to
furnish such notice shall in any event release or discharge Borrower from its
obligations to such Lender pursuant to Section 3.07(b) or otherwise result in
any liability of such Lender.
SECTION 3.12. FUNDING LOSSES. Borrower shall compensate each
Lender, upon its written request to Borrower (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances, in
either case to the extent not recovered by such Lender in connection with the
re-employment of such funds and including loss of anticipated profits), which
the Lender may sustain: (i) if for any reason (other than a default by such
Lender) a borrowing of, or conversion to or continuation of Eurodollar Advances
to Borrower does not occur on the date specified therefor in a Notice of
Borrowing or Notice of Continuation/Conversion (whether or not withdrawn), (ii)
if any repayment (including mandatory prepayments and any conversions pursuant
to Section 3.09(b)) of any Eurodollar Advances to Borrower occurs on a date
which is not the last day of an Interest Period applicable thereto, or (iii),
if, for any reason, Borrower defaults in its obligation to repay its Eurodollar
Advances when required by the terms of this Agreement.
SECTION 3.13. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR
ADVANCES. Calculation of all amounts payable to a Lender under this Article III
shall be made as though that
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Lender had actually funded its relevant Eurodollar Advances through the purchase
of deposits in the relevant market bearing interest at the rate applicable to
such Eurodollar Advances in an amount equal to the amount of the Eurodollar
Advances and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar Advances from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
PROVIDED, HOWEVER, that each Lender may fund each of its Eurodollar Advances in
any manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article III.
SECTION 3.14. APPORTIONMENT OF PAYMENTS. Aggregate principal
and interest payments in respect of Line of Credit Loans and payments in respect
of the Facility Fee shall be apportioned among all outstanding Line of Credit
Commitments and Line of Credit Loans to which such payments relate,
proportionately to the Lenders' respective pro rata portions of such Line of
Credit Commitments and outstanding Line of Credit Loans. The Administrative
Agent shall promptly distribute to each Lender at its Payment Office set forth
beside its name on the appropriate signature page hereof or such other address
as any Lender may request its share of all such payments received by the
Administrative Agent.
SECTION 3.15. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code) of the Obligations (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its pro rata
portion of payments or reductions on account of such obligations obtained by all
the Lenders, such Lender shall forthwith (i) notify each of the other Lenders
and Administrative Agent of such receipt, and (ii) purchase from the other
Lenders such participations in the affected obligations as shall be necessary to
cause such purchasing Lender to share the excess payment or reduction, net of
costs incurred in connection therewith, ratably with each of them, provided that
if all or any portion of such excess payment or reduction is thereafter
recovered from such purchasing Lender or additional costs are incurred, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery or such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on such funds.
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 3.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
SECTION 3.16. CAPITAL ADEQUACY. Without limiting any other
provision of this Agreement, in the event that any Lender shall have determined
that any law, treaty, governmental (or quasi-governmental) rule, regulation,
guideline or order regarding capital adequacy not currently in effect or fully
applicable as of the Closing Date, or any change therein or in the
interpretation or application thereof after the Closing Date, or compliance by
such Lender with any request or directive regarding capital adequacy not
currently in effect or fully applicable as of the Closing Date (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from a central bank or governmental authority or
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body having jurisdiction, does or shall have the effect of reducing the rate of
return on such Lender's capital as a consequence of its obligations hereunder to
a level below that which such Lender could have achieved but for such law,
treaty, rule, regulation, guideline or order, or such change or compliance by an
amount reasonably deemed by such Lender to be material, then within ten (10)
Business Days after written notice and demand by such Lender (with copies
thereof to the Administrative Agent), Borrower shall from time to time pay to
such Lender additional amounts sufficient to compensate such Lender for such
reduction (but, in the case of outstanding Base Rate Advances, without
duplication of any amounts already recovered by such Lender by reason of an
adjustment in the applicable Base Rate). Each certificate as to the amount
payable under this Section 3.16 (which certificate shall set forth the basis for
requesting such amounts in reasonable detail), submitted to Borrower by any
Lender in good faith, shall, absent manifest error, be final, conclusive and
binding for all purposes.
SECTION 3.17. BENEFITS TO GUARANTORS. In consideration for the
execution and delivery by the Guarantors of the Guaranty Agreement, Borrower
agrees to make the benefit of extensions of credit hereunder available to the
Guarantors.
SECTION 3.18. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(1) Each Lender or Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to Section 3.07
no later than 90 days after the earlier of (i) the date on which such Lender or
the Administrative Agent makes payment of such Taxes, and (ii) the date on which
the relevant taxing authority or other governmental authority makes written
demand upon such Lender or the Administrative Agent for payment of such Taxes.
(2) Each Lender or the Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to Sections 3.12
and 3.13 no later than 90 days after the event giving rise to the claim for
indemnification or compensation occurs.
(3) Each Lender or the Administrative Agent shall make written
demand on Borrower for indemnification or compensation pursuant to Sections 3.10
and 3.16 no later than 90 days after such Lender or the Administrative Agent
receives actual notice or obtains actual knowledge of the promulgation of a law,
rule, order or interpretation or occurrence of another event giving rise to a
claim pursuant to such sections.
(4) In the event that the Lenders or the Administrative Agent
fail to give Borrower notice within the time limitations prescribed in (a) or
(b) above, Borrower shall not have any obligation to pay such claim for
compensation or indemnification. In the event that the Lender or the
Administrative Agent fail to give Borrower notice within the time limitation
prescribed in (c) above, Borrower shall not have any obligation to pay any
amount with respect to claims accruing prior to the ninetieth day preceding such
written demand.
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ARTICLE 4
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower
hereunder is subject to the satisfaction of the following conditions:
SECTION 4.1. CONDITIONS PRECEDENT TO INITIAL LINE OF CREDIT
LOANS. At the time of the making of the initial Line of Credit Loans hereunder
on the Closing Date, all obligations of Borrower hereunder incurred prior to the
initial Line of Credit Loans (including, without limitation, Borrower's
obligations to reimburse the reasonable fees and expenses of counsel to the
Administrative Agent and any fees and expenses payable to the Administrative
Agent and the Lenders as previously agreed with Borrower), shall have been paid
in full, and the Administrative Agent shall have received the following, in form
and substance reasonably satisfactory in all respects to the Administrative
Agent:
(1) the duly executed c ounterparts of this Agreement;
(2) the duly completed Line of Credit Notes evidencing the
Line of Credit Commitment;
(3) the duly executed Guaranty Agreement;
(4) certificate of Borrower in substantially the form of
EXHIBIT C attached hereto and appropriately completed;
(5) the duly executed Commitment Letter;
(6) the duly executed Fee Letter;
(7) certificates of the Secretary or Assistant Secretary of
each of the Credit Parties attaching and certifying copies of the
resolutions of the boards of directors of the Credit Parties,
authorizing as applicable the execution, delivery and performance of
the Credit Documents;
(8) certificates of the Secretary or an Assistant Secretary of
each of the Credit Parties certifying (i) the name, title and true
signature of each officer of such entities executing the Credit
Documents, (ii) the bylaws or comparable governing documents of such
entities; and (iii) the certificate or articles of incorporation of
each Credit Party;
(9) certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of
incorporation or organization of such Credit Party;
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(10) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the
Credit Parties, in connection with the execution, delivery,
performance, validity and enforceability of the Credit Documents and
the other documents to be executed and delivered hereunder, and such
consents, authorizations, filings and orders shall be in full force and
effect and all applicable waiting periods shall have expired;
(11) certified copies of the Intercompany Loan Documents, to
the extent that they exist and have not previously been certified to
the Lenders;
(12) duly executed solvency certificates of Borrower and each
of the Guarantors, in form and substance satisfactory to the Agents and
Lenders;
(13) acknowledgment from CSC Network Corporation System, Inc.
as to its appointment as agent for service of process for the various
Credit Parties;
(14) certified copies of indentures, credit agreements,
leases, capital leases, instruments, and other documents evidencing or
securing Indebtedness of any Consolidated Company described on SCHEDULE
7.01(B), in any single case in an amount not less than $500,000 and to
the extent not previously certified to the Lenders;
(15) certificates, reports and other information as the
Administrative Agent may reasonably request from any Consolidated
Company in order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from matters relating to
employees of the Consolidated Companies, including employee relations,
collective bargaining agreements, Plans, and other compensation and
employee benefit plans;
(16) certificates, reports, environmental audits and
investigations, and other information as the Administrative Agent may
reasonably request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities or
obligations arising from environmental and employee health and safety
exposures to which the Consolidated Companies may be subject, and the
plans of the Consolidated Companies with respect thereto;
(17) certificates, reports and other information as the
Administrative Agent may reasonably request from any Consolidated
Company in order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from litigation (including
without limitation, products liability and patent infringement claims)
pending or threatened against the Consolidated Companies;
(18) a certificate of insurance summarizing, in form and
detail reasonably acceptable to the Administrative Agent, of the types
and amounts of insurance (property and liability) maintained by the
Consolidated Companies;
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(19) the favorable opinion of counsel to the Credit Parties
addressed to the Administrative Agent and each of the Lenders; and
(20) financial statements of Borrower and its Subsidiaries,
audited on a consolidated basis for the fiscal year ended on the last
Friday in January, 1998 and unaudited on a consolidated basis for the
fiscal quarter ended on the last Friday in October, 1998.
In addition to the foregoing, the following conditions shall have been satisfied
or shall exist, all to the satisfaction of the Administrative Agent, as of the
time the initial Line of Credit Loans are made hereunder:
(x) the Line of Credit Loans to be made on the Closing Date
and the use of proceeds thereof shall not contravene, violate or
conflict with, or involve the Administrative Agent or any Lender in a
violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority;
(y) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and
enforceability of the Credit Documents shall be reasonably satisfactory
in form and substance to the Required Lenders; and
(z) the status of all pending and threatened litigation
(including products liability and patent claims) which might result in
a Materially Adverse Effect, including a description of any damages
sought and the claims constituting the basis therefor, shall have been
reported in writing to the Administrative Agent, the Administrative
Agent shall have reported such matters to the Lenders, and the Lenders
shall be satisfied with such status.
SECTION 4.2. CONDITIONS TO ALL LINE OF CREDIT LOANS. At the
time of the making of all Line of Credit Loans (before as well as after giving
effect to such Line of Credit Loans and to the proposed use of the proceeds
thereof), the following conditions shall have been satisfied or shall exist:
(1) there shall exist no Default or Event of Default;
(2) all representations and warranties by Borrower contained
herein shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on
and as of the date of such Line of Credit Loans;
(3) since the date of the most recent financial statements of
the Consolidated Companies described in Section 5.03, there shall have
been no change which has had or could reasonably be expected to have a
Materially Adverse Effect.
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(4) there shall be no action or proceeding instituted or
pending before any court or other governmental authority or, to the
knowledge of Borrower, threatened (i) which reasonably could be
expected to have a Materially Adverse Effect, or (ii) seeking to
prohibit or restrict one or more Credit Party's ownership or operation
of any portion of its business or assets, or to compel one or more
Credit Party to dispose of or hold separate all or any portion of its
businesses or assets, where such portion or portions of such
business(es) or assets, as the case may be, constitute a material
portion of the total businesses or assets of the Consolidated
Companies;
(5) the Line of Credit Loans to be made and the use of
proceeds thereof shall not contravene, violate or conflict with, or
involve the Administrative Agent or any Lender in a violation of, any
law, rule, injunction, or regulation, or determination of any court of
law or other governmental authority applicable to Borrower; and
(6) the Administrative Agent shall have received such other
documents or legal opinions as the Administrative Agent or any Lender
may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent.
Each request for a Borrowing and the acceptance by Borrower of
the proceeds thereof shall constitute a representation and warranty by Borrower,
as of the date of the Line of Credit Loans comprising such Borrowing, that the
applicable conditions specified in Sections 4.01 and 4.02 have been satisfied.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
SECTION 5.1. ORGANIZATION AND QUALIFICATION. Borrower is a
corporation duly organized and existing in good standing under the laws of the
State of Florida. Each Subsidiary of Borrower is a corporation duly organized
and existing under the laws of the jurisdiction of its incorporation. Borrower
and each of its Subsidiaries are duly qualified to do business as a foreign
corporation and are in good standing in each jurisdiction in which the character
of their properties or the nature of their business makes such qualification
necessary, except for such jurisdictions in which a failure to qualify to do
business would not have a Materially Adverse Effect. Borrower and each of its
Subsidiaries have the corporate power to own their respective properties and to
carry on their respective businesses as now being conducted. The jurisdiction of
incorporation or organization, and the ownership of all issued and outstanding
capital stock, for each Subsidiary as of the date of this Agreement is
accurately described on SCHEDULE 5.01. SCHEDULE 5.01 also designates the
Material Subsidiaries as of the Closing Date.
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SECTION 5.2. CORPORATE AUTHORITY. The execution and delivery
by Borrower and the Guarantors of and the performance by Borrower and Guarantors
of their obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Borrower and the Guarantors and do not and will not (i) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the organizational papers or bylaws of Borrower or
the Guarantors, or any indenture, agreement or other instrument to which
Borrower or the Guarantors are a party or by which Borrower or the Guarantors or
any of their properties is bound, or (ii) be in conflict with, result in a
breach of, or constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
SECTION 5.3. FINANCIAL STATEMENTS. Borrower has furnished
Lenders with the following financial statements: (i) consolidated balance sheets
and consolidated statements of income, stockholders' equity and cash flow of
Borrower for the fiscal year ended on the last Friday in January, 1998, audited
by PriceWaterhouseCoopers LLP and (ii) unaudited consolidated balance sheets and
consolidated statements of income, stockholders' equity and cash flow of
Borrower for the fiscal quarter ending on the last Friday in October, 1998. Such
financial statements (including any related schedules and notes) are true and
correct in all material respects (subject, as to interim statements, to changes
resulting from audits and year end adjustments), have been prepared in
accordance with GAAP consistently applied throughout the period or periods in
question and show, in the case of audited statements, all liabilities, direct or
contingent, of Borrower and its Subsidiaries, required to be shown in accordance
with GAAP consistently applied throughout the period or periods in question and
fairly present the consolidated financial position and the consolidated results
of operations of Borrower and its Subsidiaries for the periods indicated
therein. There has been no material adverse change in the business, condition or
operations, financial or otherwise, of Borrower and its Subsidiaries since the
last Friday in October, 1998.
SECTION 5.4. TAX RETURNS. Each of Borrower and its
Subsidiaries has filed all federal, state and other income tax returns which, to
the best knowledge of the executive officers of Borrower and its Subsidiaries,
are required to be filed, and each has paid all taxes as shown on said returns
and on all assessments received by it to the extent that such taxes have become
due or except such as are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with
GAAP.
SECTION 5.5. ACTIONS PENDING. There is no action, suit,
investigation or proceeding pending or, to the knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries or any of their
properties or rights, by or before any court, arbitrator or administrative or
governmental body, which might result in any Materially Adverse Effect.
SECTION 5.6. REPRESENTATIONS; NO DEFAULTS. At the time of each
Extension of Credit there shall exist no Default or Event of Default, and each
Extension of Credit shall be deemed a renewal by Borrower of the representations
and warranties contained in this Agreement and an affirmative statement by
Borrower that such representations and warranties
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are true and correct on and as of such time with the same effect as though such
representations and warranties had been made on and as of such time.
SECTION 5.7. TITLE TO PROPERTIES. Each of Borrower and its
Subsidiaries has (i) good and marketable fee simple title to its respective real
properties (other than real properties which it leases from others), including
such real properties reflected in the consolidated balance sheet of Borrower and
its Subsidiaries as of the last Friday of October, 1998, hereinabove described
(other than real properties disposed of in the ordinary course of business),
subject to no Lien of any kind except Liens permitted by Section 7.02 and (ii)
good title to all of its other respective properties and assets (other than
properties and assets which it leases from others), including the other
properties and assets reflected in the consolidated balance sheet of Borrower
and its Subsidiaries at the last Friday of October, 1998, hereinabove described
(other than properties and assets disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted by Section
7.02. Each of Borrower and its Subsidiaries enjoys peaceful and undisturbed
possession under all leases necessary in any material respect for the operation
of its respective properties and assets, none of which contains any unusual or
burdensome provisions which might materially affect or impair the operation of
such properties and assets, and all such leases are valid and subsisting and in
full force and effect.
SECTION 5.8. ENFORCEABILITY OF AGREEMENT. This Agreement is
the legal, valid and binding agreement of Borrower enforceable against Borrower
in accordance with its terms, and the Line of Credit Notes, and all other Credit
Documents, when executed and delivered, will be similarly legal, valid, binding
and enforceable, except as the enforceability of the Line of Credit Notes and
other Credit Documents may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditor's rights and remedies in general
and by general principles of equity, whether considered in a proceeding at law
or in equity.
SECTION 5.9. CONSENT. No consent, permission, authorization,
order or license of any governmental authority or Person is necessary in
connection with the execution, delivery, performance or enforcement of the
Credit Documents, or in order to constitute the indebtedness to be incurred
hereunder and under the Line of Credit Notes and the other Credit Documents as
"Senior Debt" or any similar term defined within the documents evidencing any
Subordinated Debt.
SECTION 5.10. USE OF PROCEEDS; FEDERAL RESERVE REGULATIONS.
The proceeds of the Line of Credit Notes will be used solely for the purposes
specified in Section 2.01(c) and none of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin security" or
"margin stock" or for the purpose of reducing or retiring any indebtedness that
originally was incurred to purchase or carry a "margin security" or "margin
stock" or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of the regulations of the Board of Governors
of the Federal Reserve System.
SECTION 5.11. ERISA.
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(1) IDENTIFICATION OF CERTAIN PLANS. SCHEDULE 5.11 hereto sets
forth all Plans of Borrower and its Subsidiaries;
(2) COMPLIANCE. Each Plan is being maintained, by its terms
and in operation, in accordance with all applicable laws, except such
noncompliances (when taken as a whole) that will not have a Materially Adverse
Effect;
(3) LIABILITIES. Neither the Borrower nor any Subsidiary is
currently or will become subject to any liability (including withdrawal
liability), tax or penalty whatsoever to any person whomsoever with respect to
any Plan including, but not limited to, any tax, penalty or liability arising
under Title I or Title IV of ERISA or Chapter 43 of the Tax Code, except such
liabilities (when taken as a whole) as will not have a Materially Adverse
Effect; and
(4) FUNDING. The Borrower and each ERISA Affiliate has made
full and timely payment of all amounts (i) required to be contributed under the
terms of each Plan and applicable law and (ii) required to be paid as expenses
of each Plan, except where such non-payment would not have a Materially Adverse
Effect. No Plan has an "amount of unfunded benefit liabilities" (as defined in
Section 4001(a)(18) of ERISA) except as disclosed on SCHEDULE 5.11. No Plan is
subject to a waiver or extension of the minimum funding requirements under ERISA
or the Tax Code, and no request for such waiver or extension is pending.
SECTION 5.12. SUBSIDIARIES. All the outstanding shares of
stock of each such Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such SCHEDULE
5.01, are owned by Borrower or a Wholly Owned Subsidiary of Borrower free of any
Lien or claim.
Each Subsidiary (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of its incorporation
with the power and authority (corporate and other) to carry on its business as
it is now conducted and (ii) is qualified to transact business as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required under applicable law.
SECTION 5.13. OUTSTANDING INDEBTEDNESS. As of the date of
closing and after giving effect to the transactions contemplated by this
Agreement, neither Borrower nor any of its Subsidiaries has outstanding any
Indebtedness except as permitted by Section 7.01 and there exists no default
under the provisions of any instrument evidencing such Indebtedness or of any
agreement relating thereto.
SECTION 5.14. CONFLICTING AGREEMENTS. Neither Borrower nor any
of its Subsidiaries is a party to any contract or agreement or other burdensome
restrictions or subject to any charter or other corporate restriction which
materially and adversely affects its business, property or assets, or financial
condition. Assuming the consummation of the transactions contemplated by this
Agreement, neither the execution or delivery of this Agreement or the
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Credit Documents, nor fulfillment of or compliance with the terms and provisions
hereof and thereof, will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of the properties
or assets of Borrower or any of its Subsidiaries pursuant to, the charter or
By-Laws of Borrower or any of its Subsidiaries, any award of any arbitrator or
any agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which Borrower or any of
its Subsidiaries is subject, and neither Borrower nor any of its Subsidiaries is
a party to, or otherwise subject to any provision contained in, any instrument
evidencing Indebtedness of Borrower or any of its Subsidiaries, any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Indebtedness of the type to be evidenced by the Line of Credit Notes or
contains dividend or redemption limitations on Common Stock of Borrower, except
for this Agreement, Borrower's Certificate of Incorporation and those matters
listed on SCHEDULE 5.14 attached hereto.
SECTION 5.15. POLLUTION AND OTHER REGULATIONS.
(1) Each of the Borrower and its Subsidiaries has complied in
all material respects with all applicable Environmental Laws, including without
limitation, compliance with permits, licenses, standards, schedules and
timetables, and is not in violation of, and does not presently have outstanding
any liability under, has not been notified that it is or may be liable under and
does not have knowledge of any liability or potential liability (including any
liability relating to matters set forth on SCHEDULE 5.15(A)) except as set forth
on SCHEDULE 5.15(A), under any applicable Environmental Law, including without
limitation, the Resource Conservation and Recovery Act of 1976, as amended
("RCRA"), the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 ("CERCLA"), the Federal Water Pollution Control Act, as amended ("FWPCA"),
the Federal Clean Air Act, as amended ("FCAA"), and the Toxic Substance Control
Act ("TSCA"), which violation, liability or potential liability could reasonably
be expected to have a Materially Adverse Effect.
(2) Neither the Borrower nor any of its Subsidiaries has
received a written request for information under CERCLA, any other Environmental
Laws or any comparable state law, or any public health or safety or welfare law
or written notice that any such entity has been identified as a potential
responsible party under CERCLA, and other Environmental Laws, or any comparable
state law, or any public health or safety or welfare law, nor has any such
entity received any written notification that any Hazardous Substance that it or
any of its respective predecessors in interest has generated, stored, treated,
handled, transported, or disposed of, has been released or is threatened to be
released at any site at which any Person intends to conduct or is conducting a
remedial investigation or other action pursuant to any applicable Environmental
Law, or any other Environmental Laws.
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(3) Each of the Borrower and its Subsidiaries has obtained all
permits, licenses or other authorizations required for the conduct of their
respective operations under all applicable Environmental Laws and each such
authorization is in full force and effect.
(4) Each of Borrower and its Subsidiaries complies in all
material respects with all laws and regulations relating to equal employment
opportunity and employee safety in all jurisdictions in which it is presently
doing business, and Borrower will use its best efforts to comply, and to cause
each of its Subsidiaries to comply, with all such laws and regulations which may
be legally imposed in the future in jurisdictions in which Borrower or any of
its Subsidiaries may then be doing business.
SECTION 5.16. POSSESSION OF FRANCHISES, LICENSES, ETC. Each of
Borrower and its Subsidiaries possesses all franchises, certificates, licenses,
permits and other authorizations from governmental political subdivisions or
regulatory authorities, free from burdensome restrictions, that are necessary in
any material respect for the ownership, maintenance and operation of its
properties and assets, and neither Borrower nor any of its Subsidiaries is in
violation of any thereof in any material respect.
SECTION 5.17. PATENTS, ETC. Each of Borrower and its
Subsidiaries owns or has the right to use all patents, trademarks, service
marks, trade names, copyrights, licenses and other rights, free from burdensome
restrictions, which are necessary for the operation of its business as presently
conducted. Nothing has come to the attention of Borrower, any of its
Subsidiaries or any of their respective directors and officers to the effect
that (i) any product, process, method, substance, part or other material
presently contemplated to be sold by or employed by Borrower or any of its
Subsidiaries in connection with its business may infringe any patent, trademark,
service mark, trade name, copyright, license or other right owned by any other
Person, (ii) there is pending or threatened any claim or litigation against or
affecting Borrower or any of its Subsidiaries contesting its right to sell or
use any such product, process, method, substance, part or other material or
(iii) there is, or there is pending or proposed, any patent, invention, device,
application or principle or any statute, law, rule, regulation, standard or code
which would prevent, inhibit or render obsolete the production or sale of any
products of, or substantially reduce the projected revenues of, or otherwise
materially adversely affect the business, condition or operations of, Borrower
or any of its Subsidiaries.
SECTION 5.18. GOVERNMENTAL CONSENT. Neither the nature of
Borrower or any of its Subsidiaries nor any of their respective businesses or
properties, nor any relationship between Borrower and any other Person, nor any
circumstance in connection with the execution and delivery of the Credit
Documents and the consummation of the transactions contemplated thereby is such
as to require on behalf of Borrower or any of its Subsidiaries any consent,
approval or other action by or any notice to or filing with any court or
administrative or governmental body in connection with the execution and
delivery of this Agreement and the Credit Documents.
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SECTION 5.19. DISCLOSURE. Neither this Agreement nor the
Credit Documents nor any other document, certificate or written statement
furnished to Lenders by or on behalf of Borrower in connection herewith contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. There is no fact peculiar to Borrower which materially adversely
affects or in the future may (so far as Borrower can now foresee) materially
adversely affect the business, property or assets, financial condition or
prospects of Borrower which has not been set forth in this Agreement or in the
Credit Documents, certificates and written statements furnished to Lenders by or
on behalf of Borrower prior to the date hereof in connection with the
transactions contemplated hereby.
SECTION 5.20. INSURANCE COVERAGE. Each property of Borrower or
any of its Subsidiaries is insured within terms acceptable to Lenders for the
benefit of Borrower or a Subsidiary of Borrower in amounts deemed adequate by
Borrower's management and no less than those amounts customary in the industry
in which Borrower and its Subsidiaries operate against risks usually insured
against by Persons operating businesses similar to those of Borrower or its
Subsidiaries in the localities where such properties are located.
SECTION 5.21. LABOR MATTERS. The Borrower and the Borrower's
Subsidiaries have experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which have had, or would reasonably be
expected to have, a Materially Adverse Effect, and, to the best knowledge of
Borrower's executive officers, there are no such strikes, disputes, slow downs
or work stoppages threatened against any Borrower or any of Borrower's
Subsidiaries. The hours worked and payment made to employees of the Borrower and
Borrower's Subsidiaries have not been in violation in any material respect of
the Fair Labor Standards Act or any other applicable law dealing with such
matters. All payments due from the Borrower and Borrower's Subsidiaries, or for
which any claim may be made against the Consolidated Companies, on account of
wages and employee health and welfare insurance and other benefits have been
paid or accrued as liabilities on the books of the Borrower and Borrower's
Subsidiaries where the failure to pay or accrue such liabilities would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.22. INTERCOMPANY LOANS; DIVIDENDS. The Intercompany
Loans and the Intercompany Loan Documents, to the extent that they exist, have
been duly authorized and approved by all necessary corporate and shareholder
action on the part of the parties thereto, and constitute the legal, valid and
binding obligations of the parties thereto, enforceable against each of them in
accordance with their respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally, and by general principles of equity. There are no
restrictions on the power of any Consolidated Company to repay any Intercompany
Loan or to pay dividends on the capital stock. Intercompany Loans as of the
Closing Date are described in SCHEDULE 5.22.
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SECTION 5.23. BURDENSOME RESTRICTIONS. None of the
Consolidated Companies is a party to or bound by any Contractual Obligation or
Requirement of Law which has had or would reasonably be expected to have a
Materially Adverse Effect.
SECTION 5.24. INVESTMENT COMPANY ACT, ETC. Neither the
Borrower nor any of its Subsidiaries is an "investment company" or a company
"controlled" by an "investment company" (as each of the quoted terms is defined
or used in the Investment Company Act of 1940, as amended). Neither the Borrower
nor any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, or any foreign, federal or
local statute or regulation limiting its ability to incur indebtedness for money
borrowed, guarantee such indebtedness, or pledge its assets to secure such
indebtedness, as contemplated hereby or by any other Credit Document.
SECTION 5.25. NOTICE OF NON-COMPLIANCE WITH LAWS. Neither the
Borrower nor any of its Subsidiaries has received notice of any violation of
Law, statute, order, rule, regulation, or judgment entered by any court that may
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.26. YEAR 2000 ISSUES. Borrower and the other
Consolidated Companies (i) are performing a comprehensive review of their
computers and software applications to identify the systems that would be
affected by Year 2000 Issues as such issues pertain to the computer programs and
systems of the Consolidated Companies, (ii) based on their review and all other
information currently available to them, do not reasonably anticipate that Year
2000 Issues will have a Materially Adverse Effect, and (iii) are in compliance
with all laws, rules and regulations of the Securities and Exchange Commission.
ARTICLE 6
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow
under this Agreement or so long as any indebtedness remains outstanding under
the Line of Credit Notes that it will:
SECTION 6.1. CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause each of its Material Subsidiaries to preserve and maintain, its
corporate existence, its material rights, franchises, and licenses, and its
material patents and copyrights (for the scheduled duration thereof),
trademarks, trade names, and service marks, necessary or desirable in the normal
conduct of its business, and its qualification to do business as a foreign
corporation in all jurisdictions where it conducts business or other activities
making such qualification necessary, where the failure to do so would reasonably
be expected to have a Materially Adverse Effect.
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SECTION 6.2. COMPLIANCE WITH LAWS, ETC. Comply, and cause each
of its Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 6.07(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve amounts
in excess of $10,000,000 in the aggregate) and Contractual Obligations
applicable to or binding on any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would reasonably be expected to
have a Materially Adverse Effect.
SECTION 6.3. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services) which
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained with respect thereto.
SECTION 6.4. KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
SECTION 6.5. VISITATION, INSPECTION, ETC. Permit, and cause
each of its Subsidiaries to permit, any representative of the Administrative
Agent or any Lender to visit and inspect any of its property, to examine its
books and records and to make copies and take extracts therefrom, and to discuss
its affairs, finances and accounts with its officers, all at such reasonable
times and as often as the Administrative Agent or such Lender may reasonably
request after reasonable prior notice to Borrower; PROVIDED, HOWEVER, that at
any time following the occurrence and during the continuance of a Default or an
Event of Default, no prior notice to Borrower shall be required.
SECTION 6.6. INSURANCE; MAINTENANCE OF PROPERTIES.
(1) Maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage of
the kinds customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in such amounts,
including such self-insurance and deductible provisions, as is customary for
such companies under similar circumstances; PROVIDED, HOWEVER, that in any event
Borrower shall use its best efforts to maintain, or cause to be maintained,
insurance in amounts and with coverages not materially less favorable to any
Consolidated Company as in effect on the date of this Agreement, except where
the costs of maintaining such insurance would, in the judgment of both Borrower
and the Administrative Agent, be excessive.
(2) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to be
maintained and kept in good
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condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
settlements and improvements thereof, all as in the judgment of Borrower may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent Borrower from discontinuing the operation
or maintenance of any such properties if such discontinuance is, in the judgment
of Borrower, desirable in the conduct of its business or the business of any
Consolidated Company.
SECTION 6.7. REPORTING COVENANTS. Furnish to each Lender:
(1) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event within 95 days after the end of each fiscal year of Borrower, balance
sheets of the Consolidated Companies as at the end of such year, presented on a
consolidated basis, and the related statements of income, shareholders' equity,
and cash flows of the Consolidated Companies for such fiscal year, presented on
a consolidated basis, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and accompanied by a
report thereon of independent public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, which such report shall be
unqualified as to going concern and scope of audit and shall state that such
financial statements present fairly in all material respects the financial
condition as at the end of such fiscal year on a consolidated basis, and the
results of operations and statements of cash flows of the Consolidated Companies
for such fiscal year in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards;
(2) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 60 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a consolidated basis and
the related statements of income, shareholders' equity, and cash flows of the
Consolidated Companies for such fiscal quarter and for the portion of Borrower's
fiscal year ended at the end of such quarter, presented on a consolidated basis
setting forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower's previous fiscal year, all in
reasonable detail and certified by the chief financial officer or principal
accounting officer of Borrower that such financial statements fairly present in
all material respects the financial condition of the Consolidated Companies as
at the end of such fiscal quarter on a consolidated basis, and the results of
operations and statements of cash flows of the Consolidated Companies for such
fiscal quarter and such portion of Borrower's fiscal year, in accordance with
GAAP consistently applied (subject to normal year-end audit adjustments and the
absence of certain footnotes);
(3) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the
financial statements required pursuant to subsections (a) and (b) above, a
certificate of the president, chief financial officer or principal accounting
officer of Borrower (the "Compliance Certificate") (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
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financial statements during the period covered thereby, there exists no Event of
Default and no Default under this Agreement, or if there exists an Event of
Default or a Default hereunder, specifying the nature thereof and the proposed
response thereto, and (ii) demonstrating in reasonable detail compliance as at
the end of such fiscal year or such fiscal quarter with Section 6.08 and
Sections 7.01 through 7.04;
(4) NOTICE OF DEFAULT. Promptly after any Executive Officer of
Borrower has notice or knowledge of the occurrence of an Event of Default or a
Default, a certificate of the chief financial officer or principal accounting
officer of Borrower specifying the nature thereof and the proposed response
thereto;
(5) LITIGATION. Promptly after (i) the occurrence thereof,
notice of the institution of or any adverse development in any action, suit or
proceeding or any governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or any material property thereof
which might have a Materially Adverse Effect, or (ii) actual knowledge thereof,
notice of the threat of any such action, suit, proceeding, investigation or
arbitration;
(6) ENVIRONMENTAL NOTICES. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action, claim or
request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any Environmental Law, or any
actual or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated Company
which could result in penalties, fines, claims or other liabilities to any
Consolidated Company in amounts in excess of $5,000,000 individually or in the
aggregate;
(7) ERISA.
(i) Promptly after the occurrence thereof with respect to
any Plan of any Consolidated Company or any ERISA Affiliate thereof, or
any trust established thereunder, notice of (x) a "reportable event"
described in Section 4043 of ERISA and the regulations issued from time
to time thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations), or
(y) any other event which could subject any Consolidated Company to any
tax, penalty or liability under Title I or Title IV of ERISA or Chapter
43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 162, 404 or 419 of the Tax Code, where any
such taxes, penalties or liabilities exceed or could exceed $1,000,000
in the aggregate;
(ii) Promptly after such notice must be provided to the
PBGC, or to a Plan participant, beneficiary or alternative payee, any
notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under
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Section 401(a)(29) or 412 of the Tax Code with respect to any Plan of
any Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the
intent of the PBGC or any other governmental authority to terminate a
Plan of such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Administrative Agent,
promptly upon the filing thereof with the Internal Revenue Service
("IRS") or the Department of Labor ("DOL"), a copy of IRS Form 5500 or
annual report for each Plan of any Consolidated Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA;
(v) Upon the request of the Administrative Agent, (A) true
and complete copies of any and all documents, government reports and
IRS determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports filed
with the IRS, PBGC or DOL with respect to a Plan of the Consolidated
Companies or any ERISA Affiliate thereof, or (C) a current statement of
withdrawal liability for each Multiemployer Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(8) LIENS. Promptly upon any Consolidated Company becoming
aware thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by Section 7.02;
(9) PUBLIC FILINGS, ETC. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Borrower to its public security holders, of all regular
and periodic reports and all registration statements and prospectuses (other
than registration statements filed on Form S-3 of the Securities and Exchange
Commission regarding the issuance of restricted stock in acquisitions), if any,
filed by any of them with any securities exchange, and of all press releases and
other statements made available generally to the public containing material
developments in the business or financial condition of Borrower and the other
Consolidated Companies;
(10) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof,
copies of all financial statements of, and all reports submitted by, independent
public accountants to Borrower in connection with each annual, interim, or
special audit of Borrower's consolidated financial statements;
(11) BURDENSOME RESTRICTIONS, ETC. Promptly upon the existence
or occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement
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of Law described in Section 5.23, (ii) failure of any Consolidated Company to
hold in full force and effect those material trademarks, service marks, patents,
trade names, copyrights, licenses and similar rights necessary in the normal
conduct of its business, and (iii) any strike, labor dispute, slow down or work
stoppage as described in Section 5.21;
(12) NEW MATERIAL SUBSIDIARIES. Simultaneously with the
delivery of each Compliance Certificate, a written list of all Material
Subsidiaries formed, acquired, or created from a transfer of assets or through
any other event, during the period commencing on the Closing Date and ending on
the date on which the first Compliance Certificate is delivered, and thereafter
since the date of the most recently delivered Compliance Certificate; such
written list shall include the name of each new Material Subsidiary, its state
of incorporation, list of its officers and any other information that the
Administrative Agent shall reasonably request.
(13) INTERCOMPANY ASSET TRANSFERS. Promptly upon the
occurrence thereof, notice of the transfer of any assets from Borrower or any
Guarantor to any other Consolidated Company that is not Borrower or a Guarantor
(in any transaction or series of related transactions), excluding sales or other
transfers of assets in the ordinary course of business, where the Asset Value of
such assets is greater than $5,000,000 per transfer;
(14) YEAR 2000 ISSUES. Promptly upon any Executive Officer of
Borrower has notice or knowledge thereof, notice that any computer programs and
systems of the Consolidated Companies are subject to any Year 2000 Issues that
could reasonable be expected to have a Materially Adverse Effect; and
(15) OTHER INFORMATION. With reasonable promptness, such other
information about the Consolidated Companies as the Administrative Agent or any
Lender may reasonably request from time to time.
Section 6.8. FINANCIAL COVENANTS.
(1) FIXED CHARGE COVERAGE RATIO. Maintain as of the last day
of each fiscal quarter, a Fixed Charge Coverage Ratio of greater than 1.50:1.0.
(2) LEVERAGE RATIO. Maintain as of the last day of each fiscal
quarter, a Leverage Ratio of less than or equal to 0.60:1.0.
(3) MINIMUM NET WORTH. Maintain a Consolidated Net Worth of
not less than (i) $425,000,000 plus (ii) 50% of Consolidated Net Income (but not
Loss) for each fiscal quarter ended after January 30, 1998 and on or prior to
the date of determination.
(4) DIVIDENDS. Not declare or pay any dividend on its capital
stock, or make any payment to purchase, redeem, retire or acquire any of its
Subordinated Debt or capital stock or any option, warrant, or other right to
acquire such Subordinated Debt or capital stock, other than:
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(i) dividends payable solely in shares of capital stock; and
(ii) cash dividends declared and paid, and all other such
payments made, after January 29, 1993, in an aggregate amount at any
time not to exceed (x) $1,000,000, PLUS (y) 50% of Consolidated Net
Income (or MINUS 100% of Consolidated Net Loss) earned during
Borrower's fiscal year ended January 29, 1993, and thereafter (such
period to be treated as one accounting period);
PROVIDED, FURTHER, HOWEVER, no such dividend or other payment may be declared or
paid pursuant to clause (ii) above unless no Default or Event of Default exists
at the time of such declaration or payment, or would exist as a result of such
declaration or payment.
SECTION 6.9. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Immediately upon its receipt thereof, Borrower shall furnish the Administrative
Agent a copy of any notice received by it or any other Consolidated Company from
the holder(s) of Indebtedness referred to in Section 7.01 (or from any trustee,
agent, attorney, or other party acting on behalf of such holder(s)) in an amount
which, in the aggregate, exceeds $5,000,000, where such notice states or claims
(i) the existence or occurrence of any default or event of default with respect
to such Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness, or
(ii) the existence or occurrence of any event or condition which requires or
permits holder(s) of any Indebtedness to exercise rights under any Change in
Control Provision. Borrower agrees to take such actions as may be necessary to
require the holder(s) of any Indebtedness (or any trustee or agent acting on
their behalf) incurred pursuant to documents executed or amended and restated
after the Closing Date, to furnish copies of all such notices directly to the
Administrative Agent simultaneously with the furnishing thereof to Borrower, and
that such requirement may not be altered or rescinded without the prior written
consent of the Administrative Agent.
SECTION 6.10. ADDITIONAL GUARANTORS. Borrower shall cause each
new Material Subsidiary reported to the Administrative Agent and the Lenders
pursuant to Section 6.07(l) above to execute and deliver to the Administrative
Agent, simultaneously with the report given pursuant to Section 6.07(l) above, a
supplement to the Guaranty Agreement, together with related documents of the
kind described in Section 4.01, as appropriate, all in form and substance
satisfactory to the Administrative Agent and the Required Lenders.
SECTION 6.11. FINANCIAL STATEMENTS; FISCAL YEAR. Borrower
shall make no change in the dates of the fiscal year now employed for accounting
and reporting purposes without the prior written consent of the Required
Lenders, which consent shall not be unreasonably withheld.
SECTION 6.12. OWNERSHIP OF GUARANTORS. Borrower shall maintain
its percentage of ownership existing as of the date hereof of all Guarantors,
and shall not decrease its ownership percentage in each Person which becomes a
Guarantor after the date hereof, as such ownership exists at the time such
Person becomes a Guarantor.
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ARTICLE 7
NEGATIVE COVENANTS
So long as any Line of Credit Commitment remains in effect
hereunder or any Line of Credit Note shall remain unpaid, Borrower will not and
will not permit any Subsidiary to:
SECTION 7.1. INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, other than:
(1) Indebtedness under this Agreement or the Revolving Credit
Agreement;
(2) Indebtedness outstanding on the date hereof or pursuant to
lines of credit in effect on the date hereof and described on SCHEDULE 7.01(B);
(3) purchase money Indebtedness to the extent secured by a
Lien permitted by Section 7.02(b) provided such purchase money Indebtedness does
not exceed $20,000,000;
(4) unsecured current liabilities (other than liabilities for
borrowed money or liabilities evidenced by promissory notes, bonds or similar
instruments) incurred in the ordinary course of business and either (i) not more
than 30 days past due, or (ii) being disputed in good faith by appropriate
proceedings with reserves for such disputed liability maintained in conformity
with GAAP;
(5) any Intercompany Loans; PROVIDED, HOWEVER, that the
aggregate principal amount of all Intercompany Loans made to any Consolidated
Companies that are not Guarantors shall not exceed $5,000,000 in the any one
time outstanding unless otherwise agreed in writing by the Administrative Agent
and the Required Lenders;
(6) other Subordinated Debt in form and substance acceptable
to the Administrative Agent and the Required Lenders, and evidenced by their
written consent thereto; and
(7) other Indebtedness not to exceed $75,000,000 at any one
time outstanding. Section 7.2. LIENS. Create, incur, assume or suffer to exist
any Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(1) Liens existing on the date hereof disclosed on SCHEDULE
7.02;
(2) any Lien on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition cost of
such property and any refinancing thereof, PROVIDED that such Lien does not
extend to any other property, and PROVIDED
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FURTHER that the aggregate principal amount of Indebtedness secured by all such
Liens at any time does not exceed $20,000,000;
(3) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being maintained;
(4) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created in
the ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained;
(5) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money); and
(6) Liens (other than those permitted by paragraphs (a)
through (e) of this Section 7.02) encumbering assets having an Asset Value not
greater than $20,000,000 in the aggregate at any one time.
SECTION 7.3. MERGERS, ACQUISITIONS, SALES, ETC. Merge or
consolidate with any other Person, other than Borrower or another Subsidiary, or
sell, lease, or otherwise dispose of its accounts, property or other assets
(including capital stock of Subsidiaries), or purchase, lease or otherwise
acquire all or any substantial portion of the property or assets (including
capital stock) of any Person; PROVIDED, HOWEVER, that the foregoing restrictions
on asset sales shall not be applicable to (i) sales of equipment or other
personal property being replaced by other equipment or other personal property
purchased as a capital expenditure item, (ii) sales of accounts receivable
pursuant to a securitization program, provided further that any program costs
incurred by the Borrower in pursuing such a program shall be considered interest
under this Credit Agreement, (iii) other asset sales (including the stock of
Subsidiaries) where, on the date of execution of a binding obligation to make
such asset sale (provided that if the asset sale is not consummated within six
(6) months of such execution, then on the date of consummation of such asset
sale rather than on the date of execution of such binding obligation), the Asset
Value of asset sales occurring after the Closing Date, taking into account the
Asset Value of the proposed asset sale, would not exceed ten percent (10%) of
Borrower's Consolidated Net Worth, since the Closing Date, and (iv) sales of
inventory in the ordinary course of business; PROVIDED, FURTHER, that the
foregoing restrictions on mergers shall not apply to mergers involving Borrower
and another entity, provided Borrower is the surviving entity, and mergers
between a Subsidiary of Borrower and Borrower or between Subsidiaries of
Borrower provided that, in either case, upon consummation of such mergers,
Borrower is in compliance with the other provisions hereof; PROVIDED, FURTHER,
that the foregoing restrictions on asset purchases shall not apply to asset
purchases by Borrower to the extent that (i) after giving effect to such
purchases, Borrower is in
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compliance with Section 7.04 hereof and (ii) the Board of Directors or other
governing body of such Person whose assets or stock is being purchased has
approved the terms of such acquisition; PROVIDED, HOWEVER, that no transaction
pursuant to clauses (i), (ii) or (iii) or the second or third provisos above
shall be permitted if any Default or Event of Default otherwise exists at the
time of such transaction or would otherwise exist as a result of such
transaction.
SECTION 7.4. INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries, other
than:
(1) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 6.10 after the Closing Date;
PROVIDED, HOWEVER, nothing in this Section 7.04 shall be deemed to authorize an
investment pursuant to this subsection (a) in any entity that is not a
Subsidiary and a Guarantor prior to such investment;
(2) Investments in Subsidiaries, other than those Subsidiaries
that are or become Guarantors under this Agreement, or persons that thereafter
become Subsidiaries, in an aggregate amount not to exceed $25,000,000 unless
otherwise consented to in writing by the Required Lenders;
(3) Investments in other Persons that are not, and do not
become, Subsidiaries in an aggregate amount not to exceed $25,000,000 unless
otherwise consented to in writing by the Required Lenders;
(4) direct obligations of the United States of America or any
agency thereof, or obligations guaranteed by the United States of America or any
agency thereof, in each case supported by the full faith and credit of the
United States of America and maturing within one year from the date of creation
thereof;
(5) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized credit
rating agency;
(6) time deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by any Lender
and any office located in the United States of America of any bank or trust
company which is organized under the laws of the United States of America or any
state thereof and has total assets aggregating at least $500,000,000, including
without limitation, any such deposits in Eurodollars issued by a foreign branch
of any such bank or trust company;
(7) Investments made by Plans; and
(8) permitted Intercompany Loans on terms and conditions
acceptable to the Administrative Agent.
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SECTION 7.5. SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except to the extent that the aggregate
value of all such property sold and leased back does not exceed $5,000,000 at
any one time.
SECTION 7.6. TRANSACTIONS WITH AFFILIATES.
(1) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in the
ordinary course of business, with any Affiliate of any Consolidated Company (but
excluding any Affiliate which is also a Consolidated Company), other than on
terms and conditions substantially as favorable to such Consolidated Company as
would be obtained by such Consolidated Company at the time in a comparable
arm's-length transaction with a Person other than an Affiliate.
(2) Convey or transfer to any other Person (including any
other Consolidated Company) any real property, buildings, or fixtures used in
the manufacturing or production operations of any Consolidated Company, or
convey or transfer to any other Consolidated Company any other assets (excluding
conveyances or transfers in the ordinary course of business) if at the time of
such conveyance or transfer any Default or Event of Default exists or would
exist as a result of such conveyance or transfer.
SECTION 7.7. OPTIONAL PREPAYMENTS. Directly or indirectly,
prepay, purchase, redeem, retire, defease or otherwise acquire, or make any
optional payment on account of any principal of, interest on, or premium payable
in connection with the optional prepayment, redemption or retirement of, any of
its Indebtedness, or give a notice of redemption with respect to any such
Indebtedness, or make any payment in violation of the subordination provisions
of any Subordinated Debt, except with respect to (i) the Obligations under this
Agreement and the Line of Credit Notes, (ii) prepayments of Indebtedness
outstanding pursuant to revolving credit, overdraft and line of credit
facilities permitted pursuant to Section 7.01, (iii) Intercompany Loans made or
outstanding pursuant to Section 7.01, and (iv) Subordinated Debt, in form and
substance acceptable to the Administrative Agent and the Required Lenders, as
evidenced by their written consent, issued to refinance existing Subordinated
Debt.
SECTION 7.8. CHANGES IN BUSINESS. Enter into any business
which is substantially different from that presently conducted by the
Consolidated Companies taken as a whole except where the Investment made, and
other funds expended or committed with respect to such business, do not exceed
$5,000,000 in each new business.
SECTION 7.9. ERISA. Take or fail to take any action with
respect to any Plan of any Consolidated Company or, with respect to its ERISA
Affiliates, any Plans which are subject to Title IV of ERISA or to continuation
health care requirements for group health plans under the Tax Code, including
without limitation (i) establishing any such Plan, (ii) amending any such
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Plan (except where required to comply with applicable law), (iii) terminating or
withdrawing from any such Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan, without first
obtaining the written approval of the Administrative Agent and the Required
Lenders, where such actions or failures could result in a Materially Adverse
Effect.
SECTION 7.10. ADDITIONAL NEGATIVE PLEDGES. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon any
asset of any Consolidated Company, other than pursuant to (i) the terms of any
agreement, instrument or other document pursuant to which any Indebtedness
permitted by Section 7.01(a) or (b) is incurred by any Consolidated Company, so
long as such prohibition or restriction applies only to the property or asset
being financed by such Indebtedness, and (ii) any requirement of applicable law
or any regulatory authority having jurisdiction over any of the Consolidated
Companies.
SECTION 7.11. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions on
such Consolidated Company's stock, or (ii) pay any indebtedness owed to Borrower
or any other Consolidated Company, or (iii) transfer any of its property or
assets to Borrower or any other Consolidated Company, except any consensual
encumbrance or restriction existing under the Credit Documents or under the
Revolving Credit Agreement and related documents.
SECTION 7.12. ACTIONS UNDER CERTAIN DOCUMENTS. Without the
prior written consent of the Administrative Agent (which consent shall not be
unreasonably withheld), modify, amend, cancel or rescind any agreements or
documents evidencing or governing Subordinated Debt or the senior Indebtedness
permitted pursuant to Section 7.01 hereof, or make demand of payment or accept
payment on any Intercompany Loans permitted by Section 7.01, except that current
interest accrued thereon as of the date of this Agreement and all interest
subsequently accruing thereon (whether or not paid currently) may be paid unless
a Default or Event of Default has occurred and is continuing.
ARTICLE 8
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 8.1. PAYMENTS. Borrower shall fail to make promptly
when due (including, without limitation, by mandatory prepayment) any principal
payment with respect to
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the Line of Credit Loans, or Borrower shall fail to make within five (5)
Business Days after the due date thereof any payment of interest, fee or other
amount payable hereunder;
SECTION 8.2. COVENANTS WITHOUT NOTICE. Borrower shall fail to
observe or perform any covenant or agreement contained in Sections 6.07, 6.08,
6.11, and Article VII;
SECTION 8.3. OTHER COVENANTS. Borrower shall fail to observe
or perform any covenant or agreement contained in this Agreement, other than
those referred to in Sections 8.01 and 8.02, and, if capable of being remedied,
such failure shall remain unremedied for 30 days after the earlier of (i)
Borrower's obtaining knowledge thereof, or (ii) written notice thereof shall
have been given to Borrower by the Administrative Agent or any Lender;
SECTION 8.4. REPRESENTATIONS. Any representation or warranty
made or deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Administrative Agent or the Lenders by any such Person pursuant to the terms
of this Agreement or any other Credit Document, shall be incorrect in any
material respect when made or deemed to be made or submitted;
SECTION 8.5. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any
Consolidated Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness (other
than the Obligations) exceeding $5,000,000 in the aggregate including, without
limitation, indebtedness outstanding under the Revolving Credit Agreement;
SECTION 8.6. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated
Company shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness exceeding $5,000,000 in the aggregate including, without
limitation, indebtedness outstanding under the Revolving Credit Agreement, or
any other event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other Person to
accelerate, the maturity of such Indebtedness; or any such Indebtedness shall be
required to be prepaid (other than by a regularly scheduled required prepayment)
in whole or in part prior to its stated maturity;
SECTION 8.7. BANKRUPTCY. Borrower or any other Consolidated
Company shall commence a voluntary case concerning itself under the Bankruptcy
Code or an involuntary case for bankruptcy is commenced against any Consolidated
Company and the petition is not controverted within 10 days, or is not dismissed
within 60 days, after commencement of the case; or a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of, all or any
substantial part of the property of any Consolidated Company; or any
Consolidated Company commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether
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now or hereafter in effect, relating to any Consolidated Company or there is
commenced against any Consolidated Company any such proceeding which remains
undismissed for a period of 60 days; or any Consolidated Company is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or any Consolidated Company suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or any
Consolidated Company makes a general assignment for the benefit of creditors; or
any Consolidated Company shall fail to pay, or shall state that it is unable to
pay, or shall be unable to pay, its debts generally as they become due; or any
Consolidated Company shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of the foregoing;
SECTION 8.8. ERISA. A Plan of a Consolidated Company or a Plan
subject to Title IV of ERISA of any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms
of such Plan, Section 412 of the Tax Code or Section 302
of ERISA for any plan year or a waiver of such standard
is sought or granted with respect to such Plan under
applicable law, the terms of such Plan or Section 412 of
the Tax Code or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the
terms of such Plan; or
(iii) shall require a Consolidated Company to provide security
under applicable law, the terms of such Plan, Section
401 or 412 of the Tax Code or Section 306 or 307 of
ERISA; or
(iv) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of
ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect;
SECTION 8.9. MONEY JUDGMENT. A judgment or order for the
payment of money in excess of $5,000,000 or otherwise having a Materially
Adverse Effect shall be rendered against Borrower or any other Consolidated
Company and such judgment or order shall continue unsatisfied (in the case of a
money judgment) and in effect for a period of 30 days during which execution
shall not be effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
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SECTION 8.10. OWNERSHIP OF CREDIT PARTIES AND PLEDGED
ENTITIES. If Borrower shall at any time fail to own and control the required
percentage of the voting stock of any Guarantor, either directly or indirectly
through a wholly-owned Subsidiary of Borrower;
SECTION 8.11. CHANGE IN CONTROL OF BORROWER. (a) Any "person"
or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act), other than the Hughes Family shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of more than twenty-five percent (25%) of the shares
of the outstanding common stock of Borrower entitled to vote for members of
Borrower's board of directors, or (b) any event or condition shall occur or
exist which, pursuant to the terms of any change in control provision, requires
or permits the holder(s) of Indebtedness of any Consolidated Company to require
that such Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be accelerated in any
respect;
SECTION 8.12. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There
shall exist or occur any "Event of Default" as provided under the terms of any
other Credit Document, or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on behalf
of Borrower or any other Credit Party, or at any time it is or becomes unlawful
for Borrower or any other Credit Party to perform or comply with its obligations
under any Credit Document, or the obligations of Borrower or any other Credit
Party under any Credit Document are not or cease to be legal, valid and binding
on Borrower or any such Credit Party;
SECTION 8.13. ATTACHMENTS. An attachment or similar action
shall be made on or taken against any of the assets of any Consolidated Company
with an Asset Value exceeding $5,000,000 in aggregate and is not removed,
suspended or enjoined within 60 days of the same being made or any suspension or
injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, and upon the written or
telex request of the Required Lenders, shall, by written notice to Borrower,
take any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Line of Credit Note to
enforce its claims against Borrower or any other Credit Party: (i) declare all
Line of Credit Commitments terminated, whereupon the Line of Credit Commitments
of each Lender shall terminate immediately and Fees shall forthwith become due
and payable without any other notice of any kind; and (ii) declare the principal
of and any accrued interest on the Line of Credit Loans, and all other
Obligations owing hereunder, to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by Borrower; PROVIDED, that, if an Event of
Default specified in Section 8.07 shall occur, the result which would occur upon
the giving of written notice by the Administrative Agent to any Credit Party, as
specified in clauses (i) and (ii) above, shall occur automatically without the
giving of any such notice.
ARTICLE 9
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THE AGENTS
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender
hereby designates SunTrust Bank, Central Florida, National Association as the
"Administrative Agent" to administer all matters concerning the Line of Credit
Loans and to act as herein specified. Each Lender hereby irrevocably authorizes,
and each holder of any Line of Credit Note by the acceptance of a Line of Credit
Note shall be deemed irrevocably to authorize, the Administrative Agent to take
such actions on its behalf under the provisions of this Agreement, the other
Credit Documents, and all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through its agents or employees. The provisions of this Section
9.01 are solely for the benefit of the Administrative Agent, and Borrower and
the other Consolidated Companies shall not have any rights as third party
beneficiaries of any of the provisions hereof. In performing its functions and
duties under this Agreement, the Administrative Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligations towards or relationship of agency or trust with or for the Borrower
and the other Consolidated Companies.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Credit Documents. Neither
the Administrative Agent nor any of its officers, directors, employees or agents
shall be liable for any action taken or omitted by it as such hereunder or in
connection herewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Administrative Agent shall be ministerial and
administrative in nature; the Administrative Agent shall not have by reason of
this Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, express or implied, is intended to or shall be so construed as
to impose upon the Administrative Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
(1) Independently and without reliance upon the Administrative
Agent, each Lender, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the taking or not
taking of any action in connection herewith, and (ii) its own appraisal of the
creditworthiness of the Credit Parties, and, except as expressly provided in
this Agreement, the Administrative Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession
before the making of the Line of Credit Loans or at any time or times
thereafter.
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(2) The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Agreement, the
Line of Credit Notes, the Guaranty Agreement, or any other documents
contemplated hereby or thereby, or the financial condition of the Credit
Parties, or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement, the
Line of Credit Notes, the Guaranty Agreement, or the other documents
contemplated hereby or thereby, or the financial condition of the Credit
Parties, or the existence or possible existence of any Default or Event of
Default; PROVIDED, HOWEVER, to the extent that the Administrative Agent has been
advised that a Lender has not received any information formally delivered to the
Administrative Agent pursuant to Section 6.07, the Administrative Agent shall
deliver or cause to be delivered such information to such Lender.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until the Administrative
Agent shall have received instructions from the Required Lenders; and the
Administrative Agent shall not incur liability in any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder in accordance
with the instructions of the Required Lenders.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement, certificate,
telex, teletype or telecopier message, cable gram, radiogram, order or other
documentary, teletransmission or telephone message believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person. The
Administrative Agent may consult with legal counsel (including counsel for any
Credit Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
SECTION 9.6. INDEMNIFICATION OF ADMINISTRATIVE AGENT. To the
extent the Administrative Agent is not reimbursed and indemnified by the Credit
Parties, each Lender will reimburse and indemnify the Administrative Agent,
ratably according to the respective amounts of the Line of Credit Loans
outstanding under all Facilities (or if no amounts are outstanding, ratably in
accordance with the Total Commitments), in either case, for and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Administrative Agent in performing its duties
hereunder, in any way relating to or arising out of this Agreement or the other
Credit Documents; PROVIDED that no Lender shall be liable to the Administrative
Agent for
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any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
SECTION 9.7. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY. With respect to its obligation to lend under this Agreement, the Line
of Credit Loans made by it and the Line of Credit Notes issued to it, the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender or holder of a Line of Credit Note and may exercise the same as
though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Line of Credit Notes", or any similar
terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust, financial advisory or other business with the Consolidated
Companies or any affiliate of the Consolidated Companies as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Consolidated Companies for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.
SECTION 9.8. HOLDERS OF LINE OF CREDIT NOTES. The
Administrative Agent may deem and treat the payee of any Line of Credit Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment or transfer thereof shall have been filed with the Administrative
Agent. Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Line of Credit Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Line of Credit Note or of any Line of Credit Note
or Notes issued in exchange therefor.
SECTION 9.9. SUCCESSOR ADMINISTRATIVE AGENT.
(1) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and Borrower and may be removed at any
time with or without cause by the Required Lenders; PROVIDED, HOWEVER, the
Administrative Agent may not resign or be removed until a successor
Administrative Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Administrative Agent subject to Borrower's
prior written approval, so long as no Event of Default has occurred and is
continuing, which approval 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 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent
subject to Borrower's prior written approval, which shall be a bank which
maintains an office in the United States of America, or a commercial bank
organized under the laws of the United States of America or any State thereof,
or any Affiliate of such bank, having a combined capital and surplus of at least
$100,000,000. If
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at any time SunTrust Bank, Central Florida is removed as a Lender, SunTrust
Bank, Central Florida shall simultaneously resign as Administrative Agent.
(2) Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article IX shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was an Administrative Agent under this Agreement.
SECTION 9.10. DOCUMENTATION AGENT. Each Lender designates
First Union National Bank as Documentation Agent and agrees that the
Documentation Agent shall have no duties or obligations hereunder.
SECTION 9.11. SYNDICATION AGENT. Each Lender designates
NationsBank, N.A. as Syndication Agent and agrees that the Syndication Agent
shall have no duties or obligations hereunder.
SECTION 9.12. CO-AGENT. Each Lender designates SouthTrust
Bank, National Association as Co-Agent and agrees that the Co-Agent shall have
no duties or obligations hereunder.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth on the
signature pages hereof, or such other address or applicable teletransmission
number as such party may hereafter specify by notice to the Administrative Agent
and Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answerback is received,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, (iii) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and the appropriate confirmation is received, or (iv) if given
by any other means (including, without limitation, by air courier), when
delivered or received at the address specified in this Section; PROVIDED that
notices to the Administrative Agent shall not be effective until received.
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SECTION 10.2. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the other Credit Documents, nor consent to any
departure by any Credit Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders do any of the following:
(i) waive any of the conditions specified in Section 4.01 or 4.02, (ii) increase
the Line of Credit Commitments or other contractual obligations to Borrower
under this Agreement, (iii) reduce the principal of, or interest on, the Line of
Credit Notes or any fees hereunder, (iv) postpone any date fixed for the payment
in respect of principal of, or interest on, the Line of Credit Notes or any fees
hereunder, (v) change the percentage of the Line of Credit Commitments or of the
aggregate unpaid principal amount of the Line of Credit Notes, or the number or
identity of Lenders which shall be required for the Lenders or any of them to
take any action hereunder, (vi) release any Guarantor from its obligations under
any Guaranty Agreement, (vii) modify the definition of "Required Lenders," or
(viii) modify this Section 10.02. Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required hereinabove to take such action,
affect the rights or duties of the Administrative Agent under this Agreement or
under any other Credit Document.
SECTION 10.3. NO WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of the Administrative Agent, any Lender or any holder of a
Line of Credit Note in exercising any right or remedy hereunder or under any
other Credit Document, and no course of dealing between any Credit Party and the
Administrative Agent, any Lender or the holder of any Line of Credit Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or remedy hereunder or under any other Credit Document preclude any other
or further exercise thereof or the exercise of any other right or remedy
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent, any Lender or the holder of any Line of Credit Note would otherwise have.
No notice to or demand on any Credit Party not required hereunder or under any
other Credit Document in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent, the Lenders or the holder of
any Line of Credit Note to any other or further action in any circumstances
without notice or demand.
SECTION 10.4. PAYMENT OF EXPENSES, ETC. Borrower shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of
the Administrative Agent in the administration (both before and after
the execution hereof and including reasonable expenses actually
incurred relating to advice of counsel as to the rights and duties of
the Administrative Agent and the Lenders with respect thereto) of, and
in connection with the preparation, execution and delivery of,
preservation of rights under, enforcement of, and, after a Default or
Event of Default, refinancing, renegotiation or restructuring of, this
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Agreement and the other Credit Documents and the documents and
instruments referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the Administrative
Agent), and in the case of enforcement of this Agreement or any Credit
Document after an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel), for any of the
Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.07(b), pay and hold each of the Lenders
harmless from and against any and all present and future stamp,
documentary, and other similar Taxes with respect to this Agreement,
the Line of Credit Notes and any other Credit Documents, any collateral
described therein, or any payments due thereunder, and save each Lender
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such Taxes; and
(iii) indemnified the Administrative Agent and each Lender and
each director, officer, employee, affiliate and agent thereof (each, an
"Indemnitee") from, and hold each of them harmless against, and
reimburse each Indemnitee, upon its demand, for any losses, claims,
damages, liabilities or other expenses ("Losses") incurred by such
Indemnitee insofar as such Losses arise out of or are in any way
related to or result from this Agreement, the Line of Credit Notes or
any other Credit Documents or the financing provided hereby, including,
without limitation, Losses arising in connection with any legal
proceeding relating to any of the foregoing (whether or not such
Indemnitee is a party thereto) and the reasonable attorneys fees and
expenses actually incurred in connection therewith; PROVIDED, HOWEVER,
that the foregoing shall not apply to any Losses resulting from the
gross negligence or willful misconduct of such Indemnitee;
(iv) without limiting the indemnities set forth in subsection
(iii) above, indemnify each Indemnitee for any and all expenses and
costs (including without limitation, remedial, removal, response,
abatement, cleanup, investigative, closure and monitoring costs),
losses, claims (including claims for contribution or indemnity and
including the cost of investigating or defending any claim and whether
or not such claim is ultimately defeated, and whether such claim arose
before, during or after any Credit Party's ownership, operation,
possession or control of its business, property or facilities or
before, on or after the date hereof, and including also any amounts
paid incidental to any compromise or settlement by the Indemnitee or
Indemnitees to the holders of any such claim), lawsuits, liabilities,
obligations, actions, judgments, suits, disbursements, encumbrances,
liens, damages (including without limitation damages for contamination
or destruction of natural resources), penalties and fines of any kind
or nature whatsoever (including without limitation in all cases the
reasonable fees actually incurred, other charges and disbursements of
counsel in connection therewith) incurred, suffered or sustained by
that Indemnitee based upon, arising under or relating to Environmental
Laws based on, arising out of or relating to in whole or in part, the
existence or exercise
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of any rights or remedies by any Indemnitee under this Agreement, any
other Credit Document or any related documents (but excluding those
incurred, suffered or sustained by any Indemnitee as a result of any
action taken by or on behalf of the Lenders with respect to any
Subsidiary of Borrower (or the assets thereof) owned or controlled by
the Lenders.
If and to the extent that the obligations of Borrower under this Section 10.04
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.5. RIGHT OF SETOFF. In addition to and not in
limitation of all rights of offset that any Lender or other holder of a Line of
Credit Note may have under applicable law, each Lender or other holder of a Line
of Credit Note shall, upon the occurrence of any Event of Default and whether or
not such Lender or such holder has made any demand or any Credit Party's
obligations are matured, have the right to appropriate and apply to the payment
of any Credit Party's obligations hereunder and under the other Credit
Documents, all deposits of any Credit Party (general or special, time or demand,
provisional or final) then or thereafter held by and other indebtedness or
property then or thereafter owing by such Lender or other holder to any Credit
Party, whether or not related to this Agreement or any transaction hereunder.
Each Lender shall promptly notify Borrower of any offset hereunder.
SECTION 10.6. BENEFIT OF AGREEMENT.
(1) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto, provided that Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of the Lenders.
(2) Any Lender may make, carry or transfer Line of Credit
Loans at, to or for the account of, any of its branch offices or the office of
an Affiliate of such Lender.
(3) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of any
of its Line of Credit Commitments and the Line of Credit Loans at the time owing
to it and the Line of Credit Notes held by it) to any Eligible Assignee;
PROVIDED, HOWEVER, that (i) the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, Borrower must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld or
delayed) unless such assignment is an Affiliate of the assigning Lender, (ii)
the amount of the Line of Credit Commitments of the assigning Lender subject to
each assignment (determined as of the date the assignment and acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $10,000,000, and (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a Line of Credit Note or Notes subject to such assignment and,
unless such assignment is to an Affiliate of such Lender, a processing and
recordation fee of $2,500.
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Borrower shall not be responsible for such processing and recordation fee or any
costs or expenses incurred by any Lender or the Administrative Agent in
connection with such assignment. From and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, the assignee thereunder shall be a
party hereto and to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement.
Within five (5) Business Days after receipt of the notice and the Assignment and
Acceptance, Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Line of Credit Note or
Notes, a new Line of Credit Note or Notes to the order of such assignee in a
principal amount equal to the applicable Line of Credit Commitments or Line of
Credit Loans assumed by it pursuant to such Assignment and Acceptance and new
Line of Credit Note or Notes to the assigning Lender in the amount of its
retained Line of Credit Commitment or Commitments or amount of its retained Line
of Credit Loans. Such new Line of Credit Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Line of Credit Note or Notes, shall be dated the date of the surrendered Line of
Credit Note or Notes which they replace, and shall otherwise be in substantially
the form attached hereto.
(4) Each Lender may, without the consent of Borrower or the
Administrative Agent, sell participations without restriction to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Line of Credit Commitments in
the Line of Credit Loans owing to it and the Line of Credit Notes held by it),
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 participating
bank or other entity shall not be entitled to the benefit (except through its
selling Lender) of the cost protection provisions contained in Article III of
this Agreement, and (iv) Borrower and the Administrative Agent and other Lenders
shall continue to deal solely and directly with each Lender in connection with
such Lender's rights and obligations under this Agreement and the other Credit
Documents, and such Lender shall retain the sole right to enforce the
obligations of Borrower relating to the Line of Credit Loans and to approve any
amendment, modification or waiver of any provisions of this Agreement. Any
Lender selling a participation hereunder shall provide prompt written notice to
Borrower of the name of such participant.
(5) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation, pursuant to
this Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Borrower or the other Consolidated
Companies furnished to such Lender by or on behalf of Borrower or any other
Consolidated Company. With respect to any disclosure of confidential,
non-public, proprietary information, such proposed assignee or participant shall
agree to use the information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the information in
any manner prohibited by any law, including without limitation, the securities
laws of the United States of America. The proposed participant or assignee shall
agree not to disclose any of such information except (i) to directors,
employees, auditors or
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<PAGE>
counsel to whom it is necessary to show such information, each of whom shall be
informed of the confidential nature of the information, (ii) in any statement or
testimony pursuant to a subpoena or order by any court, governmental body or
other agency asserting jurisdiction over such entity, or as otherwise required
by law (provided prior notice is given to Borrower and the Administrative Agent
unless otherwise prohibited by the subpoena, order or law), and (iii) upon the
request or demand of any regulatory agency or authority with proper
jurisdiction. The proposed participant or assignee shall further agree to return
all documents or other written material and copies thereof received from any
Lender, the Administrative Agent or Borrower relating to such confidential
information unless otherwise properly disposed of by such entity.
(6) Any Lender may at any time assign all or any portion of
its rights in this Agreement and the Line of Credit Notes issued to it to a
Federal Reserve Bank; PROVIDED that no such assignment shall release the Lender
from any of its obligations hereunder.
(7) If (i) any Taxes referred to in Section 3.07(b) have been
levied or imposed so as to require withholdings or deductions by Borrower and
payment by Borrower of additional amounts to any Lender as a result thereof,
(ii) any Lender shall make demand for payment of any material additional amounts
as compensation for increased costs pursuant to Section 3.10 or for its reduced
rate of return pursuant to Section 3.16, or (iii) any Lender shall decline to
consent to a modification or waiver of the terms of this Agreement or the other
Credit Documents requested by Borrower, then and in such event, upon request
from Borrower delivered to such Lender and the Administrative Agent, such Lender
shall assign, in accordance with the provisions of Section 10.06(c), all of its
rights and obligations under this Agreement and the other Credit Documents to
another Lender or an Eligible Assignee selected by Borrower, in consideration
for the payment by such assignee to the Lender of the principal of, and interest
on, the outstanding Line of Credit Loans accrued to the date of such assignment,
and the assumption of such Lender's Line of Credit Commitment hereunder,
together with any and all other amounts owing to such Lender under any
provisions of this Agreement or the other Credit Documents accrued to the date
of such assignment.
SECTION 10.7. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(1) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE LINE OF CREDIT NOTES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(2) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE LINE OF CREDIT NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT
IN THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE
OF GEORGIA OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF
GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
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<PAGE>
BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND BORROWER HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(3) BORROWER HEREBY IRREVOCABLY DESIGNATES THE CORPORATION
SERVICE COMPANY, ATLANTA, GEORGIA, AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO
RECEIVE, FOR AND ON BEHALF OF BORROWER, SERVICE OF PROCESS IN SUCH RESPECTIVE
JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR THE LINE OF CREDIT NOTES OR ANY DOCUMENT RELATED THERETO. IT IS UNDERSTOOD
THAT A COPY OF SUCH PROCESS SERVED ON SUCH LOCAL AGENT WILL BE PROMPTLY
FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF SUCH PROCESS BY MAIL TO
BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, BUT THE FAILURE
OF BORROWER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH
PROCESS. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO BORROWER AT
ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(4) Nothing herein shall affect the right of the
Administrative Agent, any Lender, any holder of a Line of Credit Note or any
Credit Party to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against Borrower in any other
jurisdiction.
SECTION 10.8. INDEPENDENT NATURE OF LENDERS' RIGHTS. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Line of Credit Notes, and it shall not
be necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
SECTION 10.9. COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
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<PAGE>
SECTION 10.10. EFFECTIVENESS; SURVIVAL.
(1) This Agreement shall become effective on the date (the
"Effective Date") on which all of the parties hereto shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent pursuant to Section 10.01 or, in
the case of the Lenders, shall have given to the Administrative Agent written or
telex notice (actually received) that the same has been signed and mailed to
them.
(2) The obligations of Borrower under Sections 3.07(b), 3.10,
3.12, 3.13, 3.16, and 10.04 hereof shall survive for ninety (90) days after the
payment in full of the Line of Credit Notes after the Final Maturity Date. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement, the other Credit Documents, and
such other agreements and documents, the making of the Line of Credit Loans
hereunder, and the execution and delivery of the Line of Credit Notes.
SECTION 10.11. SEVERABILITY. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be invalid,
illegal or unenforceable, in whole or in part, in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitation of, another
covenant, shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR
TAX LAWS. If (i) any preparation of the financial statements referred to in
Section 6.07 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accounts (or successors
thereto or agencies with similar functions) (other than changes mandated by FASB
106) result in a material change in the method of calculation of financial
covenants, standards or terms found in this Agreement, (ii) there is any change
in Borrower's fiscal quarter or fiscal year, or (iii) there is a material change
in federal tax laws which materially affects any of the Consolidated Companies'
ability to comply with the financial covenants, standards or terms found in this
Agreement, Borrower and the Required Lenders agree to enter into negotiations in
order to amend such provisions so as to equitably reflect such changes with the
desired result that the criteria for evaluating any of the Consolidated
Companies' financial condition shall be the same after such changes as if such
changes had not been made. Unless and until such provisions have been so
amended, the provisions of this Agreement shall govern.
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<PAGE>
SECTION 10.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The
headings of the several sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
SECTION 10.15. TIME IS OF THE ESSENCE. Time is of the essence
in interpreting and performing this Agreement and all other Credit Documents.
SECTION 10.16. USURY. It is the intent of the parties hereto
not to violate any federal or state law, rule or regulation pertaining either to
usury or to the contracting for or charging or collecting of interest, and
Borrower and Lenders agree that, should any provision of this Agreement or of
the Line of Credit Notes, or any act performed hereunder or thereunder, violate
any such law, rule or regulation, then the excess of interest contracted for or
charged or collected over the maximum lawful rate of interest shall be applied
to the outstanding principal indebtedness due to Lenders by Borrower under this
Agreement.
SECTION 10.17. CONSTRUCTION. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party who itself or through its agents prepared the same, it being agreed
that Borrower, the Administrative Agent, the Lenders and their respective agents
have participated in the preparation hereof.
SECTION 10.18. WAIVER OF EFFECT OF CORPORATE SEAL. Borrower
represents and warrants that it is not required to affix its corporate seal to
this Agreement or any other Credit Document pursuant to any Requirement of Law
and waives any shortening of the statute of limitations that may result from not
affixing the corporate seal to this Agreement or the other Credit Documents.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in Atlanta, Georgia, by their duly
authorized officers as of the day and year first above written.
ADDRESS FOR NOTICES: BORROWER:
20 N. Orange Avenue HUGHES SUPPLY, INC.
Suite 200
Orlando, Florida 32801
By:_______________________________
Attention: J. Stephen Zepf J. Stephen Zepf
Treasurer
By:_______________________________
Ben Butterfield
Secretary
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
200 S. Orange Avenue Administrative Agent
MC 2064
Orlando, Florida 32801
By: ______________________________
Attn: Mr. William C. Barr Name:
Title:
Telecopy No. 407/237-4076
PAYMENT OFFICE:
200 S. Orange Avenue
MC 2064
Orlando, Florida 32801
- --------------------------------
Line of Credit Commitment: $13,750,000.00
Pro Rata Share of Line of Credit Commitment: 18.33%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: FIRST UNION NATIONAL BANK, individually
and as Documentation Agent
225 Water Street
4th Floor
Mail Code FL0060
Jacksonville, Florida 32202 By:_______________________________
Attn: Mr. Michael L. Williamson Name:
Title:
Telecopy No. 904/361-3560
PAYMENT OFFICE:
100 S. Ashley Drive
Suite 1000
Mail Code FL4009
Tampa, Florida 32602
Attn: Ms. Mary Doonan
- -------------------------------
Line of Credit Commitment: $12,500,000.00
Pro Rata Share of Line of Credit Commitment: 16.67%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT
<PAGE>
ADDRESS FOR NOTICES:
NATIONSBANK, N.A., individually and as
100 SE 2nd Street, 14th Floor Syndication Agent
Miami, Florida 33131
Attn: Mr. Richard Starke
By:_______________________________
Telecopy No. Name:
Title:
PAYMENT OFFICE:
NationsBank, N.A.
101 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Ms. Deon Wright
- -------------------------------
Line of Credit Commitment: $12,500,000.00
Pro Rata Share of Line of Credit Commitment: 16.67%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES:
SOUTHTRUST BANK, NATIONAL
150 2nd Avenue North ASSOCIATION, individually and as Co-Agent
Suite 470
St. Petersburg, Florida 33701 By:_______________________________
Attn: Mr. Lee Culbreath Name:
Title:
Telecopy No. 727/898-5319
PAYMENT OFFICE:
150 2nd Avenue North
Suite 470
St. Petersburg, Florida 33701
Attn: Ms. Joanne Gundling
- --------------------------------
Line of Credit Commitment: $10,000,000.00
Pro Rata Share of Line of Credit Commitment: 13.33%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: ABN AMRO BANK, N.V.
Southwest Financial Center
200 S. Biscayne Boulevard, 22nd Floor
Miami, Florida 33131-5311
Attn: Ms. Deborah Day Orozco
By:_______________________________
Name:
Title:
Telecopy No. (305)372-2397
PAYMENT OFFICE:
335 Madison Avenue, 16th Floor
New York, New York 10017
Attn: Trade Services Department
- -------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: PNC BANK, N.A.
249 5th Avenue
Pittsburgh, Pennsylvania 15222
Attn: Mr. James D. Neil
By:_______________________________
Telecopy No. 412/762-6484 Name:
Title:
PAYMENT OFFICE:
Two PNC Plaza/ Liberty Avenue.
Pittsburgh, Pennsylvania 15222
Attn: Ms. Anita Truchman
- --------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: WACHOVIA BANK, N.A.
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Mr. Shawn Janko
By:_______________________________
Name:
Title:
Telecopy No. (404)332-5016
PAYMENT OFFICE:
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Ms. Sharon Westmoreland
- --------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: THE FIFTH THIRD BANK
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Mr. Kevin J. Walter
By:_______________________________
Telecopy No. 513/579-5226 Name: Kevin J. Walter
Title: Large Corporate Banking Officer
PAYMENT OFFICE:
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Ms. Megan Heisel
- --------------------------------
Line of Credit Commitment: $3,750,000.00
Pro Rata Share of Line of Credit Commitment: 5.00%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: HIBERNIA NATIONAL BANK
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Kristie Peychaud
By:_______________________________
Telecopy No. 504/533-5344 Name: Kristie Peychaud
Title: Banking Officer
PAYMENT OFFICE:
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Shelly Strada
- --------------------------------
Line of Credit Commitment: $3,750,000.00
Pro Rata Share of Line of Credit Commitment: 5.00%
[SIGNATURE PAGE TO LINE OF CREDIT AGREEMENT]
<PAGE>
FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT
THIS FIRST AMENDMENT TO LINE OF CREDIT AGREEMENT (the "First
Amendment") is made and entered into as of September 29, 1999, by and among
HUGHES SUPPLY, INC. ("Borrower"), a Florida corporation, SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, a national banking association, FIRST UNION
NATIONAL BANK, a national banking association, BANK OF AMERICA, N.A., formerly
known as NATIONSBANK, N.A., a national banking association, SOUTHTRUST BANK,
NATIONAL ASSOCIATION, a national banking association, ABN AMRO BANK, N.V., a
banking corporation organized under the laws of the Netherlands, PNC BANK, N.A.,
a national banking association, WACHOVIA BANK, N.A., a national banking
association, THE FIFTH THIRD BANK, a national banking association, HIBERNIA
NATIONAL BANK, a national banking association and such other financial
institutions becoming a party hereto from time to time, (individually, a
"Lender" and collectively, the "Lenders"), SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), FIRST UNION NATIONAL BANK, as documentation agent
for the Lenders (in such capacity, the "Documentation Agent"), BANK OF AMERICA,
N.A., formerly known as NATIONSBANK, N.A., as syndication agent for the Lenders
(in such capacity, the "Syndication Agent") and SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as Co-Agent for the Lenders (in such capacity, the "Co-Agent").
W I T N E S S E T H:
WHEREAS, the Lenders, the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Co-Agent and the Borrower are
party to that certain Line of Credit Agreement dated as of January 26, 1999 (the
"Line of Credit Agreement"), pursuant to which the Lenders made available to
Borrower credit facilities subject to the terms and conditions set forth
therein; and
WHEREAS, the Lenders, the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Co-Agent and the Borrower, at
the request of the Borrower, desire to (i) extend the Line of Credit Termination
Date to July 24, 2000 and (ii) amend certain other terms of the Line of Credit
Agreement.
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, the parties hereto, intending to be legally bound, hereby
amend the Line of Credit Agreement and agree as follows:
1. The Line of Credit Agreement is hereby amended by replacing
the definition of "Line of Credit Termination Date" in Section 1.01 in its
entirety with the following:
<PAGE>
"LINE OF CREDIT TERMINATION DATE" shall mean the earlier of
(i) July 24, 2000 aand (ii) the date on which the Line of Credit
Commitments are terminated in accordance with Article VIII.
2. The Line of Credit Agreement is hereby amended by replacing
Section 6.08(c) in its entirety with the following:
(c) MINIMUM NET WORTH. Maintain a Consolidated Net Worth of
not less than (i) $365,000,000 plus (ii) 50% of Consolidated Net Income
(but not Consolidated Net Loss) for each fiscal quarter ended after
January 30, 1998 and on or prior to the date of determination.
3. The Line of Credit Agreement is hereby amended by replacing
Section 6.08(d) in its entirety with the following:
(d) DIVIDENDS. Not declare or pay any dividend on its capital
stock, or make any payment to purchase, redeem, retire or acquire any
of its Subordinated Debt or capital stock or any option, warrant, or
other right to acquire such Subordinated Debt or capital stock, other
than:
(i) dividends payable solely in shares of capital stock;
(ii) any payments made for the repurchase of outstanding
capital stock previously issued by Borrower in an aggregate
amount at any time not to exceed $60,000,000; and
(iii) cash dividends declared and paid and all other such
payments made, after January 29, 1993, in an aggregate amount
at any time not to exceed (x) $1,000,000, plus (y) 50% of
Consolidated Net Income (or minus 100% of Consolidated Net
Loss) earned during Borrower's fiscal year ended January 29,
1993, and thereafter (such period to be treated as one
accounting period); PROVIDED, FURTHER, however, no such
dividend or other payment may be declared or paid pursuant to
clause (ii) or (iii) above unless no Default or Event of
Default exists at the time of such declaration or payment, or
would exist as a result of such declaration or payment.
4. The Line of Credit Agreement is hereby amended by replacing
Section 7.05 in its entirety with the following:
SECTION 7.05 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property
which any Consolidated Company intends to use for substantially the
same purpose or purposes as the property being sold or transferred,
except to the extent that at the time any such property is sold and
leased back, and after giving effect thereto, the aggregate amount paid
(whether in cash or otherwise) for all such property sold and leased
back by the Consolidated Companies since the Closing Date does not
exceed five percent
2
<PAGE>
(5%) of the Consolidated Companies' total assets as reported in the
most recent audited annual financial statements delivered to the
Administrative Agent pursuant to Section 6.07(a).
5. Borrower represents and warrants that, as of the date
hereof and after giving effect to the transactions contemplated by the First
Amendment and the Credit Documents, (i) the assets of Borrower, at fair
valuation and based on their present fair saleable value, will exceed Borrower's
debts, including contingent liabilities, (ii) the remaining capital of Borrower
will not be unreasonably small to conduct Borrower's business, and (iii)
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature. For purposes of this paragraph,
"debt" means any liability on a claim, and "claim" means (a) the right to
payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (b) the right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
6. Except as expressly provided herein, the Line of Credit
Agreement shall continue in full force and effect, and the unamended terms and
conditions of the Line of Credit Agreement are expressly incorporated herein and
ratified and confirmed in all respects. This First Amendment is not intended to
be or to create, nor shall it be construed as, a novation or an accord and
satisfaction.
7. From and after the date hereof, references to the Line of
Credit Agreement shall be references to the Line of Credit Agreement as amended
hereby.
8. This First Amendment constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. Neither
this First Amendment nor any provision hereof may be changed, waived,
discharged, modified or terminated orally, but only by an instrument in writing
signed by the parties required to be a party thereto pursuant to Section 10.02
of the Line of Credit Agreement.
9. THIS FIRST AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
10. This First Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same document, and shall be
effective as of the date first above written.
11. Borrower shall reimburse the Administrative Agent for the
reasonable fees and expenses of counsel for the Administrative Agent in
connection with this First Amendment.
3
<PAGE>
IN WITNESS WHEREOF, Borrower, the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Co-Agent and the Required
Lenders have caused this First Amendment to be executed as of the date first
above written.
ADDRESS FOR NOTICES: BORROWER:
20 N. Orange Avenue HUGHES SUPPLY, INC.
Suite 200
Orlando, Florida 32801
Attention: J. Stephen Zepf By:_______________________________
J. Stephen Zepf
Treasurer
By:_______________________________
Ben Butterfield
Secretary
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
200 S. Orange Avenue Administrative Agent
MC 2064
Orlando, Florida 32801
By: ______________________________
Attn: Mr. William C. Barr William C. Barr, III
First Vice President
Telecopy No. 407/237-4076
PAYMENT OFFICE:
200 S. Orange Avenue
MC 2064
Orlando, Florida 32801
- --------------------------------
Line of Credit Commitment: $13,750,000.00
Pro Rata Share of Line of Credit Commitment: 18.33%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: FIRST UNION NATIONAL BANK, individually
and as Documentation Agent
225 Water Street
4th Floor
Mail Code FL0060
Jacksonville, Florida 32202 By:_______________________________
Attn: Mr. Mike Carlin Name:
Title:
Telecopy No. 904/361-3560
PAYMENT OFFICE:
100 S. Ashley Drive
Suite 1000
Mail Code FL4009
Tampa, Florida 32602
Attn: Ms. Mary Doonan
- -------------------------------
Line of Credit Commitment: $12,500,000.00
Pro Rata Share of Line of Credit Commitment: 16.67%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES:
BANK OF AMERICA, N.A., formerly known as
NATIONSBANK, N.A., individually and as
100 SE 2nd Street, 14th Floor Syndication Agent
Miami, Florida 33131
Attn: Mr. Richard Starke
By:_______________________________
Telecopy No. Name:
Title:
PAYMENT OFFICE:
Bank of America, N.A.
101 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Ms. Deon Wright
- -------------------------------
Line of Credit Commitment: $12,500,000.00
Pro Rata Share of Line of Credit Commitment: 16.67%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: SOUTHTRUST BANK, NATIONAL
ASSOCIATION, individually and as Co-Agent
420 North 20th Street
Birmingham, AL 35203
Attn: Florida Corporate Banking
(Orlando) By:_______________________________
Name:
Telecopy No. 727/898-5319 Title:
PAYMENT OFFICE:
P.O. Box 830716
Birmingham, AL 35283-0716
Attn: Ms. Joanne Gundling (727/825-2733)
Telecopy No. 727/898-5419
- --------------------------------
Line of Credit Commitment: $10,000,000.00
Pro Rata Share of Line of Credit Commitment: 13.33%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: ABN AMRO BANK, N.V.
Southwest Financial Center
200 S. Biscayne Boulevard, 22nd Floor
Miami, Florida 33131-5311
Attn: Ms. Deborah Day Orozco
By:_______________________________
Name:
Title:
Telecopy No. (305)372-2397
PAYMENT OFFICE:
335 Madison Avenue, 16th Floor
New York, New York 10017
Attn: Trade Services Department
- -------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: PNC BANK, N.A.
249 5th Avenue
Pittsburgh, Pennsylvania 15222
Attn: Mr. Doug King
By:_______________________________
Telecopy No. 412/762-6484 Name:
Title:
PAYMENT OFFICE:
Two PNC Plaza/ Liberty Avenue.
Pittsburgh, Pennsylvania 15222
Attn: Ms. Anita Truchman
- --------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: WACHOVIA BANK, N.A.
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Mr. Bill McCamey
By:_______________________________
Name:
Title:
Telecopy No. (404)332-5016
PAYMENT OFFICE:
191 Peachtree Street, 29th Floor
Atlanta, Georgia 30303
Attn: Ms. Sharon Westmoreland
- --------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: THE FIFTH THIRD BANK
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Mr. Kevin J. Walter
By:_______________________________
Telecopy No. 513/579-5226 Name: Kevin J. Walter
Title: Large Corporate Banking Officer
PAYMENT OFFICE:
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Ms. Megan Heisel
- --------------------------------
Line of Credit Commitment: $3,750,000.00
Pro Rata Share of Line of Credit Commitment: 5.00%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<PAGE>
ADDRESS FOR NOTICES: HIBERNIA NATIONAL BANK
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Kristie Peychaud
By:_______________________________
Telecopy No. 504/533-5344 Name: Kristie Peychaud
Title: Banking Officer
PAYMENT OFFICE:
313 Carondelet Street
New Orleans, LA 70130
Attn: Ms. Shelly Strada
- --------------------------------
Line of Credit Commitment: $3,750,000.00
Pro Rata Share of Line of Credit Commitment: 5.00%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
LINE OF CREDIT AGREEMENT]
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET OF HUGHES SUPPLY, INC. AS OF OCTOBER 31, 1999, AND
THE RELATED STATEMENT OF INCOME FOR THE NINE MONTHS THEN ENDED AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000049029
<NAME> HUGHES SUPPLY, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-28-2000
<PERIOD-END> OCT-31-1999
<CASH> 8,026
<SECURITIES> 0
<RECEIVABLES> 448,520
<ALLOWANCES> 8,989
<INVENTORY> 476,564
<CURRENT-ASSETS> 968,911
<PP&E> 231,681
<DEPRECIATION> 89,448
<TOTAL-ASSETS> 1,374,011
<CURRENT-LIABILITIES> 323,108
<BONDS> 529,350
0
0
<COMMON> 24,253
<OTHER-SE> 488,473
<TOTAL-LIABILITY-AND-EQUITY> 1,374,011
<SALES> 2,272,563
<TOTAL-REVENUES> 2,272,563
<CGS> 1,761,384
<TOTAL-COSTS> 1,761,384
<OTHER-EXPENSES> 400,713
<LOSS-PROVISION> 3,055
<INTEREST-EXPENSE> 22,537
<INCOME-PRETAX> 91,602
<INCOME-TAX> 37,099
<INCOME-CONTINUING> 54,503
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 54,503
<EPS-BASIC> 2.32
<EPS-DILUTED> 2.31
</TABLE>
