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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED APRIL 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____ TO _____.
COMMISSION FILE NUMBER 0-21986
ABLE TELCOM HOLDING CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0013218
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1601 FORUM PLACE
SUITE 1110
WEST PALM BEACH, FLORIDA 33401
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(561) 688-0400
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR, IF CHANGED SINCE LAST
REPORT)
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 ____
As of June 10, 1998, there were 9,973,863 shares, par value $.001 per
share, of the Registrant's Common Stock outstanding.
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<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
NUMBER
-------
<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets as of April 30, 1998 (Unaudited)
and October 31, 1997 .................................................. 3
Condensed Consolidated Statements of Operations (Unaudited)
for the three months and six months ended April 30, 1998 and 1997 ..... 4
Condensed Consolidated Statements of Cash Flows (Unaudited)
for the six months ended April 30, 1998 and 1997 ...................... 5
Notes to Condensed Consolidated Financial Statements (Unaudited) ......... 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations ............................................. 11
Item 3--Not Applicable
PART II. OTHER INFORMATION
Items 1, 3 and 5--Not Applicable
Item 2. Changes in Securities ................................................ 14
Item 4. Submission of Matters to a Vote of Security Holders .................. 15
Item 6. Exhibits and Reports on Form 8-K ..................................... 16
SIGNATURES .............................................................................. 18
</TABLE>
2
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
APRIL 30, OCTOBER 31,
1998 1997(1)
-------------- --------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ................................................ $ 6,053,814 $ 6,229,602
Accounts receivable, net ................................................. 24,745,172 13,399,327
Inventories .............................................................. 3,578,516 1,257,218
Costs and profits in excess of billings on uncompleted contracts ......... 4,918,817 5,614,813
Prepaid expenses and other current assets ................................ 749,120 508,591
----------- -----------
Total current assets .................................................... 40,045,439 27,009,551
Property and equipment, net ............................................... 27,789,663 13,113,638
Other assets:
Goodwill, net ............................................................ 12,592,399 8,341,064
Other non-current assets ................................................. 2,640,128 1,881,741
----------- -----------
Total other assets ...................................................... 15,232,527 10,222,805
----------- -----------
Total assets ............................................................ $83,067,629 $50,345,994
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt ........................................ $ 1,534,076 $ 3,154,428
Accounts payable ......................................................... 9,918,818 5,392,871
Billings in excess of costs and profits on uncompleted contracts ......... 1,575,470 291,165
Accrued and other current liabilities .................................... 17,915,533 4,130,173
----------- -----------
Total current liabilities ............................................... 30,943,897 12,968,637
Long-term debt, non-current portion ....................................... 23,636,544 14,139,567
Other non-current liabilities ............................................. 3,617,829 1,277,866
----------- -----------
Total liabilities ....................................................... 58,198,270 28,386,070
Contingencies ............................................................. -- --
Convertible, redeemable preferred stock, $.10 par value,
authorized 1,000,000 shares; 995 shares issued and outstanding at
October 31, 1997 ........................................................ -- 6,713,314
Shareholders' equity:
Common stock, $.001 par value, authorized 25,000,000 shares; 9,756,243
and 8,580,422 shares issued and outstanding in April 30, 1998 and
October 31, 1997, respectively ......................................... 9,756 8,579
Additional paid-in capital ............................................... 23,734,990 15,095,863
Dividends on preferred stock ............................................. (182,579) --
Retained earnings ........................................................ 1,307,192 142,168
----------- -----------
Total shareholders' equity .............................................. 24,869,359 15,246,610
----------- -----------
Total liabilities and shareholders' equity .............................. $83,067,629 $50,345,994
=========== ===========
</TABLE>
- ----------------
(1) The balance sheet at October 31, 1997 has been derived from the audited
financial statements at that date but does not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements.
See notes to condensed consolidated financial statements.
3
<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED APRIL 30, ENDED APRIL 30,
----------------------------------- -----------------------------------
1998 1997 1998 1997
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Revenues ........................................... $ 34,551,839 $ 20,871,009 $ 56,819,639 $ 39,197,148
Costs and expenses:
Costs of revenues ................................. 24,224,343 15,759,382 43,219,293 30,034,344
General and administrative ........................ 5,169,587 2,313,167 8,065,881 4,223,277
Depreciation and amortization ..................... 1,432,448 1,040,406 2,584,937 2,039,373
------------ ------------ ------------ ------------
Total costs and expenses ......................... 30,826,378 19,112,955 53,870,111 36,296,994
------------ ------------ ------------ ------------
Income from operations ............................. 3,725,461 1,758,054 2,949,528 2,900,154
Other expense, net ................................. 358,135 279,065 434,465 571,247
------------ ------------ ------------ ------------
Income before income taxes and
minority interest ................................ 3,367,326 1,478,989 2,515,063 2,328,907
Provision for income taxes ......................... 1,298,742 539,531 956,758 884,210
------------ ------------ ------------ ------------
Income before minority interest .................... 2,068,584 939,458 1,558,305 1,444,697
Minority interest .................................. 233,310 87,480 393,281 87,480
------------ ------------ ------------ ------------
Net income ......................................... 1,835,274 851,978 1,165,024 1,357,217
Preferred stock dividends ......................... 43,702 75,000 182,579 110,000
Discount attributable to beneficial
conversion privilege of preferred stock ......... -- 439,600 104,773 572,600
------------ ------------ ------------ ------------
Income applicable to common stock .................. $ 1,791,572 $ 337,378 $ 877,672 $ 674,617
============ ============ ============ ============
Income per common share (See Note 6):
Basic ............................................. $ 0.19 $ 0.04 $ 0.10 $ 0.08
============ ============ ============ ============
Diluted ........................................... $ 0.19 $ 0.04 $ 0.09 $ 0.08
============ ============ ============ ============
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED APRIL 30,
---------------------------------
1998 1997
--------------- ---------------
<S> <C> <C>
Cash provided by operating activities .................................... $ 2,362,196 $ 3,121,833
Investing Activities:
Capital expenditures, net ............................................... (7,033,125) (1,978,946)
Acquisition of businesses (net of cash acquired of $4,351,446 in 1998
and $403,617 in 1997).................................................. 319,919 (2,596,383)
Sale of investments, net ................................................ 625,000
------------- ------------
Net cash used in investing activities .................................. (6,713,206) (3,950,329)
------------- ------------
Financing Activities:
Repayments of long-term debt and other borrowings ....................... (26,020,701) (6,803,095)
Proceeds from the issuance of long-term debt and other borrowings ....... 30,194,428 5,424,060
Net proceeds from preferred stock offering .............................. -- 5,664,148
Proceeds from the exercise of stock options ............................. 183,340 --
Dividends paid on preferred stock ....................................... (182,579) (75,000)
Other ................................................................... 734 (337,480)
------------- ------------
Net cash provided by financing activities .............................. 4,175,222 3,872,633
------------- ------------
(Decrease) increase in cash and cash equivalents.......................... (175,788) 3,044,137
Cash and cash equivalents, beginning of period ........................... 6,229,602 3,267,161
------------- ------------
Cash and cash equivalents, end of period ................................. $ 6,053,814 $ 6,311,298
============= ============
Supplemental Disclosure:
Valuation of detachable warrants ........................................ $ 1,244,284 $ --
============= ============
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. OPERATIONS AND BASIS OF PRESENTATION
Able Telcom Holding Corp. and subsidiaries ("Able" or the "Company")
specialize in the design, installation, maintenance and system integration of
advanced communication networks for voice, data and video systems. These
services are provided for an array of complimentary applications, including
telecommunications infrastructure, traffic management systems, automated
manufacturing systems and utility networks.
In the opinion of management, the unaudited condensed consolidated
financial statements furnished herein include all adjustments, consisting of
only recurring adjustments necessary for a fair presentation of the results of
operations for the interim periods presented. These interim results of
operations are not necessarily indicative of results for the entire year. The
condensed consolidated financial statements contained herein should be read in
conjunction with the consolidated financial statements and related notes
contained in the Company's 1997 Annual Report on Form 10-K ("Form 10-K").
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required for complete financial statements.
Certain items in the condensed consolidated financial statements as of
April 30, 1997 and October 31, 1997 have been reclassified to conform with the
current presentation.
2. ACQUISITIONS
On December 2, 1996, the Company, through a wholly owned subsidiary,
acquired all the outstanding common stock of Dial Communications, Inc.
("Dial"). As consideration, the Company paid $3.0 million in cash, issued
108,489 shares of common stock and issued an $0.9 million promissory note. The
acquisition was accounted for using the purchase method of accounting in
accordance with Accounting Principles Board Opinion No. 16, BUSINESS
COMBINATIONS ("APB No. 16"), and approximately $1.5 million of goodwill was
recorded which is being amortized on a straight line basis over 20 years. The
results of operations of Dial have been included since the date of acquisition.
The cash component of the purchase was funded in part from the Company's line
of credit and the remainder through a $1.9 million term loan from a bank. On
July 15, 1997, this initial debt was repaid with an approximately $3.0 million
term note.
On February 25, 1998, the Company, through its wholly owned subsidiary,
Georgia Electric Company ("GEC") acquired substantially all of the assets, and
assumed certain liabilities of COMSAT RSI Acquisition, Inc. (d/b/a COMSAT RSI
JEFA Wireless Systems), a subsidiary of COMSAT Corporation. As part of the
transaction, GEC assumed certain construction contracts with the Texas
Department of Transportation and various other telecommunications customers.
GEC acquired the accounts receivable and fixed assets of the seller and assumed
its trade payables, and received a cash payment from the seller at closing of
approximately $4.7 million. In addition, the Company recorded significant
accruals related to the contracts assumed of approximately $12.5 million, of
which approximately $9.6 million remains outstanding at April 30, 1998 and is
reflected as accrued and other current liabilities in the consolidated balance
sheet.
6
<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
2. ACQUISITIONS--(CONTINUED)
The Company purchased all of the common stock of Patton Management
Corporation ("Patton") on April 1, 1998 for a total purchase price of
approximately $4.0 million, of which approximately $1.7 million was funded by
the Company's revolving credit facility (See Note 3). The acquisition was
accounted for using the purchase method of accounting in accordance with APB
No. 16. Approximately $2.8 million in goodwill was recorded which is being
amortized on a straight line basis over 20 years. The results of operations of
Patton have been included since the date of acquisition. In connection with the
acquisition, approximately $3.6 million in long-term debt outstanding at
Patton, excluding that related to capital lease obligations, was repaid in
April 1998 from the Company's revolving credit facility.
The pro forma unaudited results of operations for the three and six months
ended April 30, 1998 and 1997, assuming consummation of the purchases for Dial,
COMSAT and Patton at the beginning of the respective periods, are as follows:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED APRIL 30, ENDED APRIL 30,
----------------------------------- -----------------------------------
1998 1997 1998 1997
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Revenues ......................................... $ 40,967,740 $ 36,663,993 $ 77,001,002 $ 70,953,265
Income (loss) applicable to common stock ......... $ 306,931 $ (1,306,192) $ (2,836,640) $ (2,699,115)
Income (loss) per common share--basic ............ $ 0.03 $ (0.16) $ (0.31) $ (0.33)
Income (loss) per common share--diluted .......... $ 0.03 $ (0.15) $ (0.31) $ (0.32)
</TABLE>
The unaudited pro forma information does not purport to be indicative of
the results of operations which would have resulted had the acquisitions been
consummated at the date assumed.
3. BORROWINGS
On June 1, 1997, the Company entered into a $6.0 million Line of Credit
Facility (the "Line of Credit"). The Line of Credit was due March 1, 1998 with
interest payable monthly and contained covenants which require, among other
conditions, that the Company maintain certain tangible net worth, working
capital and debt service coverage. The Line of Credit was collateralized by all
real and personal property of the Company. The proceeds of the Line of Credit
were used to repay existing debt, purchase assets and for working capital
requirements. This amount was repaid with proceeds from the Company's new
revolving credit agreement described below.
Effective January 6, 1998, the Company issued $10.0 million of unsecured
12% Senior Subordinated Notes due January 6, 2005 (the "Notes") with detachable
warrants to purchase 409,505 shares of common stock at a price of $8.25 per
share. The warrants were valued at approximately $1.2 million and reflected as
debt discount on the consolidated balance sheet at April 30, 1998. Interest
under the Notes is payable semi-annually in arrears. Equal principal payments
are due in January 2004 and 2005 giving the notes an average life of six and
one-half years. The agreement, pursuant to when the Notes were issued, contains
covenants which require, among other conditions, that the Company maintain
certain tangible net worth, minimum fixed charge coverage and limitations on
total debt and which limits the Company's ability to pay dividends and make
certain other payments, make investments and sell assets or subsidiaries. The
proceeds from the issuance of the Notes were used for current working capital
needs, to pay off existing debt and to provide liquidity to finance growth and
certain expenditures, including acquisitions, associated with the Company's
overall strategic plan.
7
<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
3. BORROWINGS--(CONTINUED)
On April 6, 1998, the Company obtained a $25.0 million three year senior
secured revolving credit facility (the "Credit Facility") with a $2.0 million
sub-limit for the issuance of standby letter(s) of credit. The Credit Facility
allows the Company to select an interest rate based upon the prime rate or on a
short-term LIBOR, in each case plus an applicable margin, with respect to each
draw it makes thereunder. Interest is payable monthly in arrears on base rate
advances and at the expiration of each interest period for LIBOR advances. The
Credit Facility contains certain covenants which require, among other
conditions, that the Company maintain certain net worth, minimum fixed charge
coverage and limitations on total debt, and will be secured by a perfected
first priority security interest on all tangible assets of the Company. The
proceeds of the Credit Facility were used to finance working capital
requirements and for other general corporate purposes, including acquisitions
and equipment capital expenditures , not to exceed $15.0 million, associated
with the Company's overall strategic plan. On June 11, 1998, this amount was
repaid with proceeds from the Company's New Credit Facility defined below.
On June 11, 1998, the Company replaced the Credit Facility with a new
$35.0 million three year senior secured revolving credit facility ("New Credit
Facility") with a $5.0 million sub-limit for the issuance of standby letter(s)
of credit. The Credit Facility will allow the Company to select an interest
rate based upon the prime rate or on a short-term LIBOR, in each case plus an
applicable margin, with respect to each draw it makes thereunder. Interest will
be payable monthly in arrears on base rate advances and at the expiration of
each interest period for LIBOR advances. The New Credit Facility contains
certain financial covenants which require, among other conditions, that the
Cmpany maintain certain minimum ratios, including current and debt leverage,
minimum fixed charge coverage, interest coverage, as well as limitations on
total debt. The New Credit Facility will be secured by a perfected first
priority security interest on all tangible assets of the Company and a pledge
of the shares of stock of each of the Company's subsidiaries operating in the
United States. The New Credit Facility matures in June 2001.
4. PREFERRED STOCK
Effective December 20, 1996 the Company completed a private placement
transaction of 1,000 shares of $.10 par value, Series A Convertible Preferred
Stock (the "Preferred Stock") and warrants to purchase 200,000 shares of the
Company's common stock at $9.82 per share. Proceeds from the offering totaled
$6.0 million. Each share of Preferred Stock was convertible into shares of the
Company's common stock after April 30, 1997 at the lesser of $9.82 per share or
at a discount (increasing to a maximum of 20% for conversions after December
20, 1997) of the average closing bid price of a share of common stock for three
days preceeding the date of conversion. This accretion adjustment, which also
represents the amount needed to accrete to the redemption value of the
Preferred Stock for the period ended April 30, 1998, was recorded as a charge
to accumulated deficit and accompanying credit to the Preferred Stock. The
Preferred Stock accrued dividends at an annual rate of 5% and was payable
quarterly in arrears in cash or through a dividend of additional shares of
Preferred Stock. The warrants are exercisable during the four year period
commencing on the first anniversary of the private placement, provided that for
each share of Preferred Stock which is converted prior to the one year
anniversary of the placement, warrants to purchase 200 shares of common stock
are forfeited.
8
<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
4. PREFERRED STOCK--(CONTINUED)
During the quarter and six months ended April 30, 1998, 442 and 995,
respectively, shares of Preferred Stock were converted into an aggregate of
421,645 and 920,946 shares, respectively, of common stock. As of April 30,
1998, all of the shares of preferred stock have been converted to common stock.
During the quarter and six months ended April 30, 1998, 106,800 warrants
were forfeited and 92,200 warrants remain outstanding.
5. STOCK OPTION PLAN
In October 1995, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards (" SFAS") No. 123, "ACCOUNTING FOR STOCK
BASED COMPENSATION." SFAS No. 123 requires expanded disclosures of stock based
compensation arrangements with employees and encourages compensation cost to be
measured based on the fair value of the equity instrument. Under SFAS No. 123,
companies are permitted to continue to apply Accounting Principles Board
("APB") Opinion No. 25 "Accounting for Stock Issued to Employees", which
recognizes compensation cost based on the intrinsic value of the equity
instrument awarded. The Company has elected to continue to apply APB Opinion
No. 25, and related Interpretations in accounting for its employee stock
options because the alternative fair value accounting provided for under SFAS
No. 123 requires use of option valuation models that were not developed for use
in valuing employee stock options. Under APB 25, to the extent the exercise
price of the Company's employee stock options equals the market price of the
underlying stock on the date of grant, no compensation expense is recognized.
The following is the pro forma effect on net income and earnings per share as
if the Company had adopted the expense recognition requirement of SFAS No. 123.
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED APRIL 30, ENDED APRIL 30,
------------------------------- -----------------------------
1998 1997 1998 1997
--------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Pro forma income available to common stockholders ......... $ 1,719,580 $ 265,386 $ 777,904 $ 574,849
Pro forma income
Per share:
Basic .................................................. $ 0.18 $ 0.03 $ 0.08 $ 0.07
Diluted ................................................ $ 0.18 $ 0.03 $ 0.08 $ 0.07
</TABLE>
Under the Company's 1995 Stock Option Plan, as amended, up to 1.3 million
shares of the Company's common stock are available for issuance pursuant to the
grant of stock options.
6. EARNINGS PER SHARE
In February 1997, the FASB issued SFAS No. 128 "Earnings per Share" which
changes the method of calculating earnings per share and was effective for the
Company beginning with the quarter ended January 31, 1998. All periods
presented have been restated in accordance with the provisions of SFAS No. 128.
9
<PAGE>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
6. EARNINGS PER SHARE--(CONTINUED)
The following is a reconciliation of the numerators and denominators of
the basic and diluted per share computation as required by SFAS No. 128.
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED APRIL 30, ENDED APRIL 30,
-------------------------------- -------------------------------
1998 1997 1998 1997
--------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Basic:
Net income available to common stockholders
(numerator) .............................. $ 1,791,572 $ 337,378 $ 877,672 $ 674,617
Weighted-average number of common shares
(denominator) ............................ 9,480,335 8,313,701 9,192,508 8,279,940
Earnings per common share--basic ........... $ 0.19 $ 0.04 $ 0.10 $ 0.08
Diluted:
Weighted-average number of common shares
(denominator) ............................ 9,480,335 8,313,701 9,192,508 8,279,940
Common stock equivalents arising from
stock options and warrants ............... 108,412 287,656 79,156 248,910
Total shares (denominator) ................. 9,588,747 8,601,357 9,271,665 8,528,850
Earnings per common share--diluted ......... $ 0.19 $ 0.04 $ 0.09 $ 0.08
</TABLE>
7. POTENTIAL ACQUISITION
On April 26, 1998, the Company agreed to purchase all of the outstanding
common stock of MFS Network Technologies, Inc., ("MFSNT"), from MFS
Communications Company, Inc. ("MFSCC"), a subsidiary of WorldCom, Inc.
("WorldCom") at a purchase price equal to the net book value of MFSNT as of
March 31, 1998 plus $10.0 million. Pursuant to the acquisition agreement, the
Company granted to MFSCC a six-month option to purchase up to 2 million newly
issued shares of the Company's stock at a purchase price of $7.00 per share,
subject to the limitation that the actual number of shares issued will not
exceed 1,817,941. The Company has paid a $10.0 million deposit, which is
nonrefundable in the event the Company is unable to complete the transaction,
which is to be applied to the purchase price for MFSNT.
8. SUBSEQUENT EVENTS
On May 21, 1998, SIRIT Technologies Inc. ("SIRIT") filed a lawsuit in the
United States District Court for the Southern Division of Florida, against the
Company and Thomas M. Davidson. SIRIT asserts claims against the Company for
tortious interference, fraudulent inducement, negligent misrepresentation and
breach of contract in connection with the Company's agreement to purchase the
shares of MFSNT (Note 7) and seeks injunctive relief and compensatory damages
in excess of $100.0 million. In the opinion of management, the lawsuit will not
have a material adverse effect upon the consolidated financial position or
results of operations of the Company. The Company intends to vigorously defend
this matter.
The Company is party, from time to time, to other various legal
proceedings. In the opinion of management, none of these proceedings are
expected to have a material adverse effect on the Company's consolidated
financial position or results of operations.
Subsequent to April 30, 1998, the Company replaced its Credit Facility
with its New Credit Facility. See Note 3 herein.
10
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis relates to the financial condition
and results of operations of the Company for the three and six months ended
April 30, 1998 and 1997. This information should be read in conjunction with
the Company's condensed consolidated financial statements appearing elsewhere
in this document. Except for historical information contained herein, the
matters discussed below contain forward looking statements that involve risks
and uncertainties, including but not limited to economic, competitive,
governmental and technological factors affecting the Company's operations,
markets and profitability.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, selected
elements of the Company's condensed consolidated statements of operations as a
percentage of its revenues.
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED APRIL 30, ENDED APRIL 30,
--------------------------- ---------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues .............................. 100.00% 100.00% 100.00% 100.00%
Cost of revenues ...................... 70.11% 75.51% 76.06% 76.62%
General and administrative ............ 14.96% 11.08% 14.20% 10.78%
Depreciation and amortization ......... 4.15% 4.99% 4.55% 5.20%
Income from operations ................ 10.78% 8.42% 5.19% 7.40%
Net income ............................ 5.31% 4.08% 2.05% 3.46%
</TABLE>
For the quarter ended April 30, 1998 revenues increased $13.7 million over
the same period in the prior year from $20.9 million to $34.6 million. For the
six months ended April 30, 1998, revenues increased $17.6 million from $39.2
million for the six months ended April 30, 1997 to $56.8 million for the six
months ended April 30, 1998. These increases in revenue are due primarily to
growth of the Company's operations through the acquisitions of COMSAT RSI JEFA
Wireless Systems ("COMSAT") and Patton Management Corporation ("Patton") in the
second quarter of fiscal 1998, as well as increased demands for services in the
traffic management and telecommunications industries. For both the second
quarter and the six months ended April 30, 1998, revenues increased by
approximately $5.2 million and $2.8 million related to the acquisitions of
COMSAT and Patton, respectively.
As a percentage of revenues, cost of revenues decreased from 75.51% to
70.11% for the three months ended April 30, 1998 compared to the same three
month period in the prior year. This decrease is due primarily to improved
margins within the traffic management group related to the acquisition of
COMSAT due to the reversal of some of the reserves established in connection
with the acquisition as income from the contracts is recognized. For the six
months ended April 30, 1998 and 1997, cost of revenues as a percentage of
revenues remained relatively constant. This is due to increased costs related
to the telecommunications services group resulting from tighter margins and
competition in the telecommunications industry, as well as inclement weather
which restricted some work during the winter months, offset by decreased costs
related to the traffic management group related to the acquisition of COMSAT's
operations.
General and administrative expenses increased $2.9 million from $2.3
million to $5.2 million for the three months ended April 30, 1998 compared to
the same period in the previous year. For the six months ended April 30, 1998,
general and administrative expenses were $8.1 million, an increase of $3.9
million over the same period in the prior year. These increases are due to the
overall increase in the management structure, at the corporate level as well as
the division offices, necessary to support the Company's increased revenues in
accordance with the Company's strategic objective of growth through
acquisition.
As a percentage of revenues, depreciation and amortization expense
decreased from 4.99% in the three months ended April 30, 1998 to 4.15% for the
three months ended April 30, 1997. In addition, for
11
<PAGE>
the six month periods ended April 30, 1998 and 1997, depreciation and
amortization expense, as a percentage of revenues, decreased from 5.20% to
4.55%, respectively. This decrease, as a percentage of revenues, is due to the
significant increase in revenues which did not require the same percentage
increase in capital assets to support the operations of the Company.
The Company has provided income taxes at a rate which approximates the
rate used when applying federal and state statutory tax rates to pre-tax
income, after adjusting for the amortization of nondeductible goodwill.
For the quarter ended April 30, 1998, net income for the Company was $1.8
million compared to net income of $0.9 million in the quarter ended April 30,
1997. For the six months ended April 30, 1998, net income was $1.2 million
compared to $1.4 million for the same period in 1997.
Income applicable to common stock was $1.8 million and $0.9 million for
the three and six months ended April 30, 1998, respectively, compared to $0.3
million and $0.7 million for the three and six months ended April 30, 1997,
respectively. On a diluted basis, income per common share increased from $0.04
to $0.19 per share for the three months ended April 30, 1998 as compared to
1997 and increased from $0.08 to $0.09 per share for the six months ended April
30, 1998 as compared to 1997.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents were $6.1 million at April 30, 1998 compared to
$6.2 million at October 31, 1997.
Cash provided by operating activities of $2.4 million is a result of net
income by the Company of $1.2 million for the six months ended April 30, 1998,
increased by depreciation and amortization charges of $2.6 million, increased
by $0.7 million for a non-cash charge related to contingent consideration from
the acquisition of GEC, offset by increases in accounts receivable balances due
to increased revenues as a result of the Company's significant growth in
operations.
Cash used in investing activities of $6.7 million is due to net capital
expenditures required to support increased operations and replacement of
existing equipment.
Cash provided by financing activities of approximately $4.2 million is due
primarily to net increases in long term debt and other borrowings in order to
fund the acquisition of Patton, general corporate needs, and working capital
requirements.
Effective January 6, 1998, the Company issued $10.0 million of 12%
unsecured Senior Subordinated Notes due January 6, 2005 (the "Notes") with
detachable warrants to purchase 409,505 shares of common stock at a price of
$8.25 per share. The warrants were valued at approximately $1.2 million and
reflected as debt discount on the consolidated balance sheet at April 30, 1998.
Interest under the Notes is payable semi-annually in arrears. Equal principal
payments are due in January 2004 and 2005 giving the Notes an average life of
6.5 years. The agreement pursuant to which the Notes were issued contains
covenants which require, among other conditions, that the Company maintain
certain tangible net worth, minimum fixed charge coverage and limitations on
total debt, and which limit the Company's ability to pay dividends and make
certain other payments, make investments and sell assets or subsidiaries. The
proceeds from issuance of the Notes were used for current working capital
needs, to pay off existing debt and to provide liquidity to finance growth and
certain expenditures, including acquisitions, associated with the Company's
overall strategic plan.
In addition to the Notes, on April 6, 1998, the Company obtained a $25.0
million three year senior secured revolving credit facility (the "Credit
Facility") with a $2.0 million sub-limit for the issuance of standby letter(s)
of credit. The Credit Facility allows the Company to select an interest rate
based upon the prime rate or on a short-term LIBOR, in each case plus an
applicable margin, with respect to each draw it makes thereunder. Interest is
payable monthly in arrears on base rate advances and at the
12
<PAGE>
expiration of each interest period for LIBOR advances. The Credit Facility
contains certain covenants which require, among other conditions, that the
Company maintain certain net worth, minimum fixed charge coverage and
limitations on total debt, and is secured by a perfected first priority
security interest on all tangible assets of the Company. The proceeds of the
Credit Facility were used to finance working capital requirements and for other
general corporate purposes, including acquisitions and equipment capital
expenditures, not to exceed $15.0 million, associated with the Company's
overall strategic plan. On June 11, 1998 this amount was repaid with proceeds
from the Company's New Credit Facility defined below.
On June 11, 1998, the Company replaced the Credit Facility with a new
$35.0 million three year senior secured revolving credit facility ("New Credit
Facility") with a $5.0 million sub-limit for the issuance of standby letter(s)
of credit. The New Credit Facility will allow the Company to select an interest
rate based upon the prime rate or on a short-term LIBOR, in each case plus an
applicable margin, with respect to each draw it makes thereunder. Interest will
be payable monthly in arrears on base rate advances and at the expiration of
each interest period for LIBOR advances. The New Credit Facility contains
certain financial covenants which require, among other conditions, that the
Cmpany maintain certain minimum ratios, including current and debt leverage,
minimum fixed charge coverage, interest coverage, as well as limitations on
total debt. The New Credit Facility will be secured by a perfected first
priority security interest on all tangible assets of the Company and a pledge
of the shares of stock of each of the Company's subsidiaries operating in the
United States. The New Credit Facility matures in June 2001.
The amount available under the New Credit Facility was used to repay
existing secured indebtedness, and will be used to finance working capital
requirements of existing and acquired businesses, to fund acquisitions and
capital expenditures and for other general corporate purposes. The Company
expects that its cash on hand and available borrowing capacity under the New
Credit Facility will be sufficient to fund its capital requirements for the
next twelve months. There can be no assurance, however, that the Company will
not experience adverse operating results or other factors which could
materially increase its cash requirements.
CAUTIONARY STATEMENTS
Certain of the information contained herein may contain "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995, as the same may be amended from time to time ("the Act") and in
releases made by the Securities and Exchange Commission ("SEC") from time to
time. Such forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual results,
performance, or achievements of the Company to be materially different from any
future results, performance, or achievements expressed or implied by such
forward-looking statements. The words "estimate," "project," "intend," "expect"
and similar expressions, when used in connection with the Company, are intended
to identify forward-looking statements. Any such forward-looking statements are
based on various factors and derived utilizing numerous important assumptions
and other important factors that could cause actual results to differ
materially from those in the forward-looking statements. These Cautionary
Statements are being made pursuant to the Act, with the intention of obtaining
the benefits of the "Safe Harbor" provisions of the Act. The Company cautions
investors that any forward-looking statements made by the Company are not
guarantees of future performance and that actual results may differ materially
from those in the forward-looking statements as a result of various factors,
including but not limited to those set forth below. Important assumptions and
other important factors that could cause actual results to differ materially
from those in the forward-looking statements include, but are not limited to:
(i) risks associated with leverage, including cost increases due to rising
interest rates; (ii) risks associated with Able's ability to continue its
strategy of growth through acquisitions; (iii) risks associated with Able's
ability to successfully integrate all of its recent acquisitions; (iv) Able's
ability to make effective acquisitions in the future and to successfully
integrate newly acquired businesses into existing operations and the risks
associated with such newly acquired businesses; (v) changes in laws and
regulations, including changes in tax rates, accounting standards,
environmental laws, occupational,
13
<PAGE>
health and safety laws; (vi) access to foreign markets together with foreign
economic conditions, including currency fluctuations; (vii) the effect of, or
changes in, general economic conditions; (viii) economic uncertainty in
Venezuela; and (ix) weather conditions that are adverse to the specific
businesses of Able. Other factors and assumptions not identified above may also
be involved in the derivation of forward-looking statements, and the failure of
such other assumptions to be realized as well as other factors may also cause
actual results to differ materially from those projected. The Company assumes
no obligation to update these forward-looking statements to reflect actual
results, changes in assumptions or changes in other factors affecting such
forward-looking statements.
YEAR 2000
In 1996, the Company initiated a conversion from existing accounting
software to programs that are Year 2000 compliant. Management has determined
that the Year 2000 issue will not pose significant operational problems for its
computer systems. As a result, all costs associated with this conversion,
excluding those related to the purchase of new software which will be
capitalized, are being expensed as incurred. The Company plans to utilize both
internal and external resources to reprogram, or replace, and test the software
for Year 2000 modifications and anticipates completing its conversions prior to
October 31, 1999 at a total projected cost of $0.3 million.
The Company has also initiated formal communications with all of its
significant suppliers and large customers to determine the extent to which the
Company's interface systems are vulnerable to those third parties' failures to
remediate their own Year 2000 issue.
RECENT DEVELOPMENTS
On April 26, 1998, the Company agreed to purchase all of the outstanding
common stock of MFS Network Technologies, Inc., ("MFSNT"), from MFS
Communications Company, Inc. ("MFSCC"), a subsidiary of WorldCom, Inc.
("WorldCom") at a purchase price equal to the net book value of MFSNT as of
March 31, 1998 plus $10.0 million. Pursuant to the acquisition agreement, the
Company granted to MFSCC a six-month option to purchase up to 2 million newly
issued shares of the Company's stock at a purchase price of $7.00 per share,
subject to the limitation that the actual number of shares issued will not
exceed 1,817,941. The Company has paid a $10.0 million deposit, which is
nonrefundable in the event the Company is unable to complete the transaction,
which is to be applied to the purchase price for MFSNT.
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On February 10, 1998, the Company issued 45,226 shares of common stock to
Silverton International Fund, Ltd. upon conversion of 50 shares of the
Company's outstanding Series A Convertible Preferred Stock. Such shares were
issued pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended,
as an exchange with existing security holders exclusively.
On February 25, 1998, the Company issued 102,220 shares of common stock to
Gerry W. Hall and 102,220 shares to J. Barry Hall. Both transactions occurred
pursuant to an agreement dated October 12, 1996 pursuant to which the Company
acquired all of the issued and outstanding common stock of Georgia Electric
Company. Under the agreement, the sellers receive shares of the Company's
common stock at the end of each of the five fiscal years commencing October 31,
1997 pursuant to a formula contained in the acquisition agreement. Both
transactions were exempt from registration pursuant to Section 4(2) of the
Securities Act, as amended, as a transaction by an issuer not involving a
public offering.
On April 26, 1998, the Company granted to MFS Communications Company, Inc.
("MFS"), a Delaware corporation, an option to purchase up to 2,000,000 shares
(subject to the limitations described
14
<PAGE>
below) of the Company's common stock, par value $.001 per share. The option was
granted in connection with the Agreement and Plan of Merger (the "Merger
Agreement") dated as of April 26, 1998, among the Company, MFS and its
subsidiary, MFS Network Technologies, Inc. ("MFSNT"), under which the Company
is to acquire all of the outstanding shares of the common stock of MFSNT (the
"Merger").
The transaction was exempt from registration pursuant to Section 4(2) of
the Securities Act of 1933, as amended, as a transaction by an issuer not
involving a public offering.
The option is exercisable for a six-month period commencing at the closing
of the Merger or the earlier termination of the Merger Agreement. The option is
exercisable for a cash exercise price of $7.00 per share (subject to adjustment
for stock splits or combinations and similar events). MFS may elect, in lieu of
exercising the option for some or all of the shares, to require the Company to
issue to it shares of the Company's common stock with a market value equal to
the excess of the then market value of the shares over $7.00. MFS is required
to utilize this alternative to the extent necessary to ensure that the actual
number of shares of the Company issued to it shall not exceed 1,817,941.
The Company has agreed to promptly file with the Securities and Exchange
Commission a registration statement to register the resale by MFS of any shares
received by it pursuant to the option. In the event that MFS exercises the
option in whole or in part, it shall be entitled to designate an individual as
a representative of MFS to serve on the Company's Board of Directors for so
long as MFS retains shares of the Company purchased pursuant to the option
aggregating at least 5% of the Company's then outstanding shares of common
stock.
ITEM 4. SUBMISSION OF MATTER TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Shareholders of the Company was held on April 24,
1998. The Company's directors were elected by the following vote:
ABSTENTIONS
TO ELECT THE FOLLOWING NOMINEES VOTES AND BROKER
AS DIRECTORS OF THE COMPANY VOTES FOR WITHHELD NON-VOTES
- --------------------------------- ----------- ---------- ------------
Jonathan A. Bratt 6,823,212 381,729 0
John D. Foster 6,903,112 301,829 0
Frazier L. Gaines 6,802,902 402,039 0
Robert C. Nelles 6,305,401 899,540 0
Richard J. Sandulli 6,308,222 896,719 0
Gideon D. Taylor 6,823,012 381,929 0
In addition to the election of directors for the Company, shareholders
voted upon amendments to the Company's 1995 Stock Option Plan which would
increase the number of shares of Common Stock authorized for issuance
thereunder from 550,000 to 1,300,000 and to provide for the granting thereunder
of awards of shares of restricted Common Stock. The number of votes was as
follows:
ABSTENTIONS AND
FOR AGAINST BROKER NON-VOTES
- -------------- --------- -----------------
2,111,343 706,098 74,347
The shareholders were also asked to ratify Ernst & Young, LLP as the
Company's independent accountants for the Company's fiscal year ending October
31, 1998. The number of votes was as follows:
ABSTENTIONS AND
FOR AGAINST BROKER NON-VOTES
- -------------- --------- -----------------
7,136,825 31,750 36,366
15
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- -------- -----------------------------------------------------------------------------------------
<S> <C>
2.1 Asset Purchase Agreement, dated November 26, 1997, among Able Telcom Holding Corp.,
Georgia Electric Company, Transportation Safety Contractors, Inc., COMSAT RSI
Acquisition, Inc. and COMSAT Corporation(1)
2.2 Indemnification Agreement, dated February 25, 1998, among Able Telcom Holding Corp,
Georgia Electric Company, Transportation Safety Contractors, Inc. COMSAT RSI Acquisition,
Inc. and COMSAT Corporation(1)
2.3 Stock Purchase Agreement, dated as of April 1, 1998, among Able Telcom Holding Corp.,
James P Patton, Rick Boyle and Claiborne K. McLemore III(2)
2.4 Closing Memorandum and Schedule, dated April 1, 1998, among Able Telcom Holding Corp.,
James P. Patton, Rick Boyle and Claiborne K. McLemore III.(2)
2.5 Agreement and Plan of Merger by an among MFS Acquisition Corp., Able Telcom Holding
Corp., MFS Network Technologies, Inc. and MFS Communications Company, Inc. dated as of
April 22, 1998.
3.1 Articles of Incorporation of the Registrant, as amended(3)(4)
3.2 Bylaws of the Registrant, as amended(3)
4.2 Specimen Common Stock Certificate(3)
4.3 Specimen Series A Preferred Stock Certificate(6)
4.4 Form of Warrant issued to Credit Suisse First Boston and Silverton International Fund
Limited(4)
4.6 Able Telcom Holding Corp. 1995 Stock Option Plan(3)
10.8 Employment Agreement with Gerry W. Hall(5)
10.9 Master Agreement with AT&T(3)
10.10 Master Agreement with GTE(3)
10.15 Stock Purchase Agreement between Able Telcom Holding Corp., Traffic Management Group,
Inc., Georgia Electric Company, Gerry W. Hall and J. Barry Hall(5)
10.16 Stock Purchase Agreement between Able Telcom Holding Corp., Telecommunications Services
Group, Inc., Dial Communications, Inc., William E. Newton and Sybil C. Newton(8)
10.17 Promissory Note of Able Telcom Holding Corp. Payable to William E. and Sybil C. Newton(8)
10.23 Stock Purchase Agreement(5)
10.25 Securities Purchase Agreements, dated as of January 6, 1998, between Able Telcom Holding
Corp. and each of the Purchasers named therein(6)
10.26 Senior Secured Revolving Credit Agreement dated as of April 6, 1998, between Able Telcom
Holding Corp. And Suntrust Bank, South Florida, N.A. and Bank of America, FSB
11 Computation of Per Share Earnings(7)
27 Financial Data Schedule
<FN>
- ----------------
(1) Incorporated by reference from an exhibit to the Company's Current Report
on Form 8-K (File No. 0-21986), dated February 25, 1998, as filed with the
Commission on March 12, 1998, as amended by Form 8-K/A-1, dated May 11,
1998, as filed with the Commission on May 11, 1998.
(2) Incorporated by reference from an exhibit to the Company's Current Report
on Form 8-K (File No. 0-21986), dated April 1, 1998, as filed with the
Commission on April 14, 1998.
(3) Incorporated by reference from an exhibit to the Company's Registration
Statement on Form S-1 (File No. 33-65854), as declared effective by the
Commission on February 26, 1994.
(4) Incorporated by reference from an exhibit to the Company's Current Report
on Form 8-K (File No. 0-21986), dated December 20, 1996, as filed with the
Commission on December 31, 1996.
16
<PAGE>
(5) Incorporated by reference from an exhibit to the Company's Current Report
on Form 8-K (File No. 21986), dated October 12, 1996, as filed with the
Commission on October 25, 1996.
(6) Incorporated by reference from an exhibit to the Company's Annual Report on
Form 10-K (File No. 0-21986) for the fiscal year ended October 31, 1997,
as filed with the Commission on February 13, 1998, as amended by Form
10-K/A, as filed with the Commission on March 20, 1998.
(7) Incorporated by reference from Note 6 to the Condensed Consolidated
Financial Statements (unaudited), filed herewith.
(8) Incorporated by reference from an exhibit to the Company's Current Report
on Form 8-K (File No. 0-21986), dated December 2, 1996, as filed with the
Commission on December 13, 1996, as amended by Form 8-K/A-1, dated
February 11, 1997, as filed with the Commission on February 11, 1997.
</FN>
</TABLE>
(b) Reports on Form 8-K
On February 25, 1998, the Company filed a Current Report on Form 8-K
announcing the acquisition of substantially all of the assets and the
assumption of certain liabilities of COMSAT RSI.
On April 14, 1998, the Company filed a Current Report on Form 8-K
announcing the acquisition of all of the common stock of Patton Management
Corporation.
17
<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.
ABLE TELCOM HOLDING CORP.
(REGISTRANT)
June 12, 1998 By: /s/ FRAZIER L. GAINES
-------------------------------------
Frazier L. Gaines
President and Chief Executive Officer
June 12, 1998 By: /s/ MARK A. SHAIN
-------------------------------------
Mark A. Shain
Chief Financial Officer
18
<PAGE>
<TABLE>
<CAPTION>
ABLE TELCOM HOLDING CORP. AND SUBSIDIARIES
EXHIBIT INDEX
<S> <C>
2.5 Agreement and Plan of Merger by an among MFS Acquisition Corp., Able Telcom Holding
Corp., MFS Network Technologies, Inc. and MFS Communications Company, Inc. dated as of
April 22, 1998.
10.26 Senior Secured Revolving Credit Agreement dated as of April 6, 1998, between Able Telcom
Holding Corp. And Suntrust Bank, South Florida, N.A. and Bank of America, FSB
27 Financial Data Schedule
</TABLE>
19
EXHIBIT 2.5
AGREEMENT AND PLAN OF MERGER
by and among
MFS Acquisition Corp.,
Able Telcom Holding Corp.,
MFS Network Technologies, Inc.
and
MFS Communications Company, Inc.
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of April 26,1998, by and among MFS
Acquisition Corp., a Delaware corporation ("Buyer"), Able Telcom Holding Corp.,
a Florida corporation ("Parent"), MFS Network Technologies, Inc., a Delaware
corporation ("Seller"), and MFS Communications Company, Inc., a Delaware
corporation ("MFS").
WITNESSETH:
WHEREAS, on or before the date immediately preceding the Closing Date,
Seller will adopt, in substantially the form attached hereto as Exhibit 1ar the
Plan of Complete Liquidation pursuant to which Seller will distribute,
immediately prior to the merger of Seller with and into Buyer (the "Merger"),
all of the Other Assets (as defined herein) and all of the capital stock of all
of the Distributed Subsidiaries (as defined herein) to MFS (the "Liquidating
Distribution"); and
WHEREAS, Parent and MFS wish to provide for the terms and conditions upon
which the Merger of Seller with and into Buyer will be consummated;
WHEREAS, for income tax purposes, (i) the Merger is intended and expected
to be treated as a taxable sale by Seller of all of its assets (other than the
Distributed Assets, as defined herein) to Buyer in exchange for the Merger
Consideration (as defined herein) and an assumption by Buyer of all of Seller's
liabilities (except as specifically provided herein), and (ii) the distributions
by Seller to MFS, its sole shareholder, of the Distributed Assets and the Merger
Consideration are intended and expected to be treated as liquidating
distributions made pursuant to a complete liquidation (the "Complete
Liquidation") of Seller qualifying under Sections 332 and 337 of the Internal
Revenue Code of 1986, as amended (the "Code").
NOW THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained herein, and intending to be
legally bound hereby, the Parties hereto agree as follows:
1. CERTAIN DEFINITIONS. The Parties to this Agreement (as defined herein)
hereby agree that, in addition to other terms defined in this Agreement, the
terms set forth below in this Section 1 shall have the following meanings
ascribed to them, and that variants and derivatives of such terms shall have
correlative meanings:
a. "Adjusted Stockholder's Equity" is as defined in Section 3g.
2
<PAGE>
b. "AFFILIATE," when used with respect to an entity, is a Person or
entity directly or indirectly through one or more intermediaries
Controlling, Controlled by or under common Control with that entity.
c. "AGREEMENT" is this Agreement and Plan of Merger, including all
attached exhibits.
d. "ASSUMPTION AND INDEMNITY AGREEMENT" is the Assumption and Indemnity
Agreement in form as attached hereto as Exhibit 1d.
e. "BENEFIT ARRANGEMENTS" are as defined in Section 6k.
f "BEST OF MFS' KNOWLEDGE" (and similar phrases respecting the knowledge
of MFS) shall mean, as of the relevant date, such matter is within the
actual knowledge of one or more of those persons listed on Exhibit 1f,
without duty of inquiry by any of them.
g. "BONDS" is as defined in Section 1 of the Assumption and Indemnity
Agreement.
h. "CLOSING" is the consummation of the Merger.
i. "CLOSING BALANCE SHEET" means the balance sheet of Seller as of March
31, 1998 used to calculate Adjusted Stockholder's Equity, as adjusted
by MFS and Parent in accordance with the terms of Section 3.
j. "CLOSING DATE" is as defined in Section 12.
k. "CLOSING PERIOD" is the period which commences on the date of this
Agreement and which ends on the earlier of the Termination Date or the
Closing Date.
l. "CODE" is the United States Internal Revenue Code of 1986, as amended,
and all applicable regulations thereunder.
m. "CONTRACTS" is as defined in Section 1 of the Assumption and Indemnity
Agreement.
3
<PAGE>
n. "CONTROL" (including the terms "Controlling," "Controlled by," or
"under common Control with") is the power to direct or cause the
direction of the management, policies, or affairs of a Person or an
entity.
o. "CONTROLLED SUBSIDIARIES" means MFS Transportation Systems, Inc., a
Delaware corporation, MFS TransTech, Inc., a Delaware corporation, and
MFS Network Technologies of District of Columbia, Inc, a Delaware
corporation.
p. "DEPOSIT" is, collectively, the amounts actually paid by Parent
pursuant to Section 8d.
q. "DISTRIBUTED ASSETS" are, collectively, the Other Assets and the stock
of the Distributed Subsidiaries.
r. "DISTRIBUTED SUBSIDIARIES" are all corporations wholly or partially,
directly or indirectly, owned by Seller, except the Retained
Subsidiaries.
s. "EMPLOYEE PLANS" are as defined in Section 6k.
t. "EMPLOYEE PC PURCHASE PLAN BALANCE" is the balance if any of the
reserve attributable to employees of Seller under MFS' home computer
allowance program.
u. "EQUITY SHORTFALL" is as defined in Section 3k.
v. "ESTIMATED ADJUSTED STOCKHOLDER'S EQUITY" is as defined in Section 3b.
w. "ESTIMATED MERGER CONSIDERATION" is as defined in Section 3a.
x. "ESTIMATED NET ADVANCE ADJUSTMENT" is as defined in Section 3c.
y. "EVENT OF MFS INDEMNIFICATION" is as defined in Section 14.
z. "EVENT OF PARENT INDEMNIFICATION" is as defined in Section 14.
aa. "HSR ACT" is the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended.
4
<PAGE>
ab. "INDEMNIFICATION NOTICE" is as define in Section 14.
ac. "LICENSE AGREEMENT" is the License Agreement in form as attached
hereto as Exhibit 1ac.
ad. "LOSSES" is as defined in Section 14.
ae. "MASTER SERVICES AGREEMENT" is the Master Services Agreement in form
as attached hereto as Exhibit 1ae.
af. "MATERIAL ADVERSE EFFECT" means a change, development, or occurrence
which has had, or may reasonably be expected to have, a material
adverse effect on the revenue, expenses, or financial condition of
Seller and the Retained Subsidiaries taken as a whole.
ag. "MERGER CONSIDERATION" is as defined in Section 3f.
ah. "MFS CONDITIONS" is as defined in Section 10.
ai. "MFS UNDERTAKINGS" is as defined in Section 14.
aj. "NET ADVANCE ADJUSTMENT" is as defined in Section 3d.
ak. "NT BUSINESS" means Seller's transportation system business, internal
network construction business, third-party network construction
business, security systems business, and all other businesses carried
on by Seller and the Retained Subsidiaries as of the date hereof.
al. "OTHER ASSETS" means all of Seller's assets other than (i) the
Retained Assets (as defined herein), (ii) the stock of the Retained
Subsidiaries (as defined herein) and (iii) the stock of the
Distributed Subsidiaries.
am. "PARENT CONDITIONS" is as defined in Section 9.
an. "PARENT UNDERTAKINGS" is as defined in Section 14.
ao. "PARTIES" are the signatory parties to this Agreement.
5
<PAGE>
ap. "PERMITTED EQUITY SHORTFALL" is as defined in Section 3k.
aq. "PERSON" is any individual, corporation, association, partnership,
limited liability company, joint venture, organization, business,
trust or any other entity or organization, including a government or
any subdivision or agency thereof. Person shall include each Party to
this Agreement.
ar. "PLAN OF LIQUIDATION" is the Plan of Complete Liquidation that will be
adopted by Seller and approved by MFS, its sole stockholder, in
substantially the form as attached hereto as Exhibit 1ar, as amended,
modified, or otherwise supplemented from time to time.
as. "REFERENCE BALANCE SHEET" is the Reference Balance Sheet of Seller as
of March 31, 1998 attached hereto as Exhibit las.
at. "RETAINED ASSETS" means all of Seller's right, title and interest in,
to and under the assets and properties, of every kind and description,
wherever located, real, personal or mixed, tangible or intangible,
owned, held or used in the conduct of the NT Business by Seller other
than the stock of the Retained Subsidiaries.
au. "RETAINED SUBSIDIARIES" are the following corporations, wholly or
partially, directly or indirectly, owned by Seller:
i. MFS Transportation Systems Inc., a Delaware corporation;
ii. MFS TransTech, Inc., a Delaware corporation;
iii. Kanas Telecom, Inc., an Alaska corporation;
iv. SIRIT Technologies, Inc., a Canada corporation; and
v. MFS Network Technologies of District of Columbia, Inc.
av "SATISFACTORY RELEASE" as to any Bond and any obligations or
liabilities of WorldCom and the Subsidiaries respecting such Bond, is
the receipt by WorldCom of (i) written releases, in form and content
reasonably satisfactory to WorldCom, whereby all of the parties to
whom WorldCom and the Subsidiaries are obligated or otherwise liable
respecting such Bond unconditionally, irrevocably, and fully release
WorldCom and the Subsidiaries from any obligation or liabilities
respecting such Bond, or (ii) other evidence reasonable satisfactory
to WorldCom that such Bond and any obligations or liabilities of
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WorldCom and the Subsidiaries respecting the Bonds have expired in
accordance with their terms.
aw. "SHARES" are all issued and outstanding shares of capital stock of
Seller.
ax. "STOCK PLEDGE AGREEMENT" is the Stock Pledge Agreement in form as
attached hereto as Exhibit 1ax.
ay. "SURETY ADJUSTMENT" is the amount representing the payments, premiums,
or costs of placement relating to the bonding of Seller's work on that
project commonly known as the New Jersey Consortium Project paid or to
be paid by MFS or its Affiliates after March 31, 1998, which amount
will be deemed to be (i) the amount of such payments, premiums and
costs if actually paid by MFS on or prior to the Closing Date, (ii)
$600,000, if such payments, premiums or costs are not paid by MFS on
or prior to the Closing Date but remain payable by it thereafter, or
(ii) $0, if such payments, premiums or costs are not paid by MFS on or
prior to the Closing Date and do not remain payable by MFS thereafter
by reason of a release of its obligation to make such payment.
az. "TAX ADJUSTMENT" is as defined in Section 3e.
ba. "TAX ASSURANCE" is as defined in Section 7.
bb. "TRANSACTION" is, collectively, the principal transactions described
in this Agreement.
bc. "WORLDCOM" is WorldCom Inc., a Georgia corporation.
bd. "WORLDCOM GUARANTEE" is the WorldCom Guarantee in form as attached
hereto as Exhibit lbd.
2. THE TRANSACTION. Subject to each and all of the terms, conditions,
provisions and limitations set forth in this Agreement:
a. no later than the date immediately preceding the Closing Date, the
Board of Directors of Seller will adopt, and MFS as the sole
shareholder of
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Seller will approve, the Plan of Liquidation; the Plan of Liquidation
will provide that the Complete Liquidation of Seller will occur
pursuant to the Merger;
b. before the Closing, the Board of Directors of Seller and MFS, as sole
shareholder of Seller, will approve the Merger contemplated by this
Agreement and the consummation of the transactions contemplated hereby
upon the terms and subject to the conditions set forth herein;
c. immediately prior to consummating the merger, and pursuant to the Plan
of Liquidation, Seller will distribute to MFS the Distributed Assets
as a distribution pursuant to the Plan of Liquidation;
d. immediately after the Liquidating Distribution and in fulfillment of
the Plan of Liquidation, in accordance with Delaware corporate law,
Seller will merge with and into Buyer on the Closing Date and at the
Closing in accordance with this Agreement and the separate existence
of Seller shall cease; Buyer shall continue as the surviving
corporation; upon consummation of the Merger, each share of Seller
stock held by MFS shall automatically be canceled and converted into
the right to receive a pro rata share of the Merger Consideration in
United States dollars; and
e. on the Closing Date, at the Closing, each Party will execute the
agreements and take all of the actions described herein to be
performed by such Party at the Closing, including those described in
Section 13.
3. CALCULATION OF MERGER CONSIDERATION.
a. ESTIMATED MERGER CONSIDERATION. The "Estimated Merger Consideration"
shall mean the sum of (i) the Estimated Adjusted Stockholder's Equity,
(ii) the Estimated Net Advance Adjustment, (iii) the Surety Adjustment
and (iv) $10,000,000.
b. ESTIMATED ADJUSTED STOCKHOLDER'S EQUITY. The "Estimated Adjusted
Stockholder's Equity" shall mean $94,205,006, the Adjusted
Stockholder's Equity as identified on the Reference Balance Sheet.
c. ESTIMATED NET ADVANCE ADJUSTMENT. The "Estimated Net Advance
Adjustment" shall mean MFS' written estimate of the Net Advance
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Adjustment as delivered to Parent not less than two business days
prior to the Closing Date.
d. NET ADVANCE ADJUSTMENT. The "Net Advance Adjustment" shall mean the
difference obtained (which may be positive or negative) when (i) the
amount of any payments (or account sweeps) by Seller to MFS or MFS'
Affiliates from April 1, 1998 through and including the Closing Date
is subtracted from (ii) the amount of any advances by MFS or MFS'
Affiliates to Seller from April 1, 1998 through and including the
Closing Date, it being agreed for such purposes that (x) the tax
Adjustment shall be deemed to be such an advance, whether or not MFS
shall have paid the related taxes as of the Closing Date and (y) any
payments, premiums, or costs of placement relating to the bonding of
Seller's work on that project commonly known as the New Jersey
Consortium Project paid by MFS or its Affiliates after March 31, 1998
shall not be treated as advances, in all such cases determined in
accordance with U.S. generally-accepted accounting principles,
consistently applied with Seller's historical financial statements.
e. TAX ADJUSTMENT. The "Tax Adjustment" shall mean the product of (i) the
amount of all income, gains and earnings of Seller and the Controlled
Subsidiaries for the period from April 1, 1998 through and including
the Closing Date (excluding any gain resulting from the sale of
Seller's assets pursuant to the Merger) multiplied by (ii) 40 percent,
all as determined in accordance with U.S. generally-accepted
accounting principles, consistently applied with Seller's historical
financial statements,
f. MERGER CONSIDERATION. The "Merger Consideration" shall mean the sum
of (i) the Adjusted Stockholder's Equity, (ii) the Net Advance
Adjustment, (iii) the Surety Adjustment and (iv) $10,000,000, as such
sum may be adjusted pursuant to Section 3k.
g. ADJUSTED STOCKHOLDER'S EQUITY. The "Adjusted Stockholder's Equity"
shall mean MFS' stockholder's equity in Seller as of March 31, 1998,
adjusted as follows, in all such cases determined as of March 31, 1998
in accordance with U.S. generally-accepted accounting principles,
consistently applied with Seller's historical financial statements,
and
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otherwise in accordance with the methodology used in the Reference
Balance Sheet and Section 3k:
i. minus the Employee PC Purchase Plan Balance;
ii. minus accounts receivable owed to Seller in which the relevant
due date is more than 120 days on or prior to March 31, 1998,
other than (A) retainage agreed to between Seller and the account
debtor, and (B) accounts receivable owed to Seller by any MFS or
any Affiliate of MFS;
iii. minus all accounts receivable owed to Seller by MFS or any
Affiliate of MFS;
iv. minus all "costs and earnings in excess of billings on
uncompleted contracts" respecting MFS or any Affiliate of MFS;
v. plus all accounts payable owed to MFS or any Affiliate of MFS by
Seller; and
vi. plus the cumulative amount of all loans or advances by MFS or
any Affiliate of MFS to Seller or any Retained Subsidiary.
h. Within 30 days after the Closing Date, Parent shall deliver to MFS
Parent's written calculations of the Adjusted Stockholder's Equity and
the Net Advance Adjustment. In the event Parent fails to timely
deliver the relevant calculation, the Estimated Adjusted Stockholder's
Equity shall be deemed to be the Adjusted Stockholder's Equity and the
Estimated Net Advance Adjustment (or if MFS shall have delivered to
Parent a revised Estimated Net Advance Adjustment within three
business days following the Closing Date, then such revised amount)
shall be deemed to be the Net Advance Adjustment.
i. If Parent timely delivers the calculations contemplated by Section 3h,
Parents calculations shall be deemed to be accepted by MFS unless,
within 30 days after delivery thereof to MFS, MFS delivers to Parent a
written notice of objection. In the event of delivery of such notice
of objection, Parent and MFS shall cause Coopers & Lybrand LLC to
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determine the Adjusted Stockholder's Equity and/or the Net Advance
Adjustment, as the case may be, which determination shall be final and
binding upon the Parties. Parent and MFS shall fully cooperate with
and provide all relevant information to such accountants. The direct
costs of such accountants (but not the indirect or internal costs of
either Parent or MFS) shall be borne equally by Parent and MFS, unless
such accountants approve in full the calculations of one of the
Parties, in which case the other Party shall bear in full such direct
costs.
j. Parent and MFS agree that they will, and agree to cause their
respective accountants and employees to, cooperate and assist in the
preparation of the calculations of Adjusted Stockholder's Equity and
the Net Advance Adjustment hereunder, including without limitation,
the making available of books, records, accounts, data, workpapers,
and personnel.
k. Notwithstanding the forgoing provisions of this Section 3, (A) the
Adjusted Stockholder's Equity shall be deemed to equal the Estimated
Adjusted Stockholder's Equity unless the excess of the Estimated
Adjusted Stockholder's Equity over the Adjusted Stockholder's Equity
(the "Equity Shortfall") is more than the greater of $1,000,000 and
the net income after taxes of Seller and the Controlled Subsidiaries
during the period from April 1, 1998 through and including the Closing
Date (such greater amount, the "Permitted Equity Shortfall") and (B)
the Merger Consideration shall not exceed the Estimated Merger
Consideration by more than $5,000,000.
4. PAYMENT OF MERGER CONSIDERATION.
a. ESTIMATED MERGER CONSIDERATION. At the Closing, Parent shall pay MFS
in United States Dollars, in immediately available funds, the excess
of the Estimated Merger Consideration over the aggregate amount of all
payments actually received by the Escrow Agent from Parent pursuant to
Section 8d to be held as the Deposit.
b. MERGER CONSIDERATION. After the Closing, and within two business days
after the determination of the Adjusted Stockholder's Equity and the
Net Advance Adjustment pursuant to Section 3 which results in a
determination that the Merger Consideration is different from the
Estimated Merger Consideration,
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i. Parent shall pay MFS the difference between the Estimated Merger
Consideration and the Merger Consideration, if the former is less
than the latter, plus interest thereon at the rate of nine
percent per annum accruing from and after the Closing Date until
paid; or
ii. MFS shall refund to Parent the difference between the Estimated
Merger Consideration and the Merger Consideration if the former
is more than the latter, plus interest thereon at the rate of
nine percent per annum accruing from and after the closing Date
until paid.
C. SURETY ADJUSTMENT. In the event that the amount representing the
payments, premiums, or costs of placement relating to the bonding of
Seller's work on that project commonly known as the New Jersey
Consortium Project paid or to be paid by MFS or its Affiliates after
March 31, 1998 actually paid by MFS following the Closing Date is
other than $600,000, Parent will promptly pay to MFS the amount of any
excess and MFS will promptly pay to Parent the amount of any
shortfall.
d. METHOD AND TIMING OF PAYMENTS. In the case of any payments to be made
under Section 4b or 4c, such payment shall be made in United States
Dollars, in immediately available funds, and shall be tendered to the
remittee at the place designated for delivery of notices provided for
in this Agreement. Payments not tendered when due shall bear interest
at the rate of eighteen percent from and after the due date until
paid.
e. EFFECT OF PAYMENT ON INTERCOMPANY ACCOUNTS. Payments pursuant to this
Section 4 shall be deemed to settle all intercompany receivables,
payables and advances of the nature identified in the calculation of
Adjusted Stockholder's Equity pursuant to Section 3g.
5. REPRESENTATIONS AND WARRANTIES BY BUYER AND PARENT. Buyer and Parent,
acknowledging that MFS is hereby, and in consummating the Closing will be,
relying thereon, do hereby jointly and severely represent and warrant to MFS as
follows, both as of the date hereof and as of the Closing Date:
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a. ORGANIZATIONAL MATTERS. Each of Parent and Buyer:
i. is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation; and
ii. has the requisite power and authority to carry on its business,
to enter into this Agreement and to perform its obligations
hereunder.
b. VALID EXECUTION AND CORPORATE AUTHORITY. Each of Parent and Buyer has
full power and authority to execute, deliver and perform this
Agreement and all other agreements to be executed or affirmed at the
Closing, to perform its obligations hereunder (including under the
Option (as defined herein)) and to consummate the Closing. No
corporate or shareholder proceedings (which have not already occurred)
by Parent or Buyer are necessary to approve or authorize this
Agreement, performance hereunder (including under the Option), or the
Closing, including for purposes of Section 607.0901 of the Florida
1989 Business Corporation Law. This Agreement is, and each of the
agreements to be executed or affirmed by Parent or Buyer at the
Closing will be (when executed), the valid and binding agreement of
Parent and Buyer, enforceable against Parent and Buyer in accordance
with the terms thereof, and any and all shares of Parent Common Stock
(as defined herein) issued upon exercise of the Option shall be
validly issued, fully paid and nonassessable.
C. NONCONTRAVENTION. the execution, delivery and performance by Parent
and Buyer of this Agreement and the consummation of the Transaction
contemplated hereby (including under the Option) do not and will not
(i) conflict with, or result in a breach of, any of the provisions of
the articles of incorporation or bylaws of Parent and Buyer, or (ii)
require any consent under or contravene any material law, rule or
regulation of any state, jurisdiction or political subdivision or of
the United States, or of any applicable foreign jurisdiction, or
contravene any order, writ, injunction, decree, or determination of
any court or other authority having jurisdiction over Parent or Buyer,
except in the case of clause (ii) for the expiration or termination of
the waiting period under the HSR Act and for all such cases that have
not had and could not reasonably be expected to result in,
individually or in the aggregate, a material adverse
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<PAGE>
effect on Parent's and Buyer's ability to perform their obligations
under this Agreement and the other agreements contemplated hereby.
d. FINANCING. All of the information that Parent has provided to MFS as
to the manner in which it will obtain the necessary financing to
perform its obligations under this Agreement, including without
limitation the obtaining of releases of guarantee, indemnification and
reimbursement obligations in respect of the Bonds, is complete and
accurate and Parent has provided, or will upon receipt provide, any
and all commitment letters received by it in connection with such
financing.
e. NO BROKER. No broker, finder or investment banker is entitled to any
brokerage, finders or other fee or commission payable by MFS or Seller
in connection with this Agreement or the Transaction based upon any
written or oral agreements made by or on behalf of Parent or Buyer.
f. ACKNOWLEDGMENT AS TO SELLER CONTRACTS. Parent acknowledges that
neither MFS nor any of its employees or representatives have
undertaken any review of any agreement, contract, or other instrument
affecting Seller or any Retained Subsidiary in connection with this
Agreement or the Transaction and that no representation, express or
implied, is given by MFS or Seller as to the effect of the Transaction
or the failure to obtain any required consents on any such agreement,
contract or other instrument.
6. REPRESENTATIONS AND WARRANTIES BY MFS. MFS, acknowledging that Parent
and Buyer are hereby, and in consummating the Closing will be, relying thereon,
does hereby represent and warrant to Parent and Buyer as follows, both as of the
date hereof and as of the Closing Date:
a. CORPORATE EXISTENCE AND POWER. MFS, Seller and each of the Retained
Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation
and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on
its business as now conducted. Seller and each of the Retained
Subsidiaries is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where such qualification
is necessary, except for those
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<PAGE>
jurisdictions where failure to be so qualified would not, individually
or in the aggregate, have a Material Adverse Effect.
b. VALID EXECUTION AND CORPORATE AUTHORITY. Each of MFS and Seller has
full power and authority to execute, deliver and perform this
Agreement and all other agreements to be executed or affirmed at the
Closing or during the Closing Period, to perform its obligations
hereunder and to consummate the Closing. No corporate or shareholder
proceedings (other than those they have agreed to implement pursuant
to Section 2b) by MFS or Seller are necessary to approve or authorize
this Agreement, performance hereunder, or the Closing. This Agreement
is, and each of the agreements to be executed or affirmed by MFS and
Seller at the Closing or during the Closing Period will be (when
executed), the valid and binding agreement of MFS and Seller,
enforceable against MFS and Seller in accordance with the terms
thereof
c. NONCONTRAVENTION. To the Best of MFS' Knowledge, the execution,
delivery and performance by MFS and Seller of this Agreement and the
Liquidation Distribution and the consummation of the Transaction
contemplated hereby do not and will not (i) conflict with, or result
in a breach of, any of the provisions of its articles of incorporation
or by-laws of MFS and Seller, or (ii) require any consent under or
contravene any material law, rule or regulation of any state,
jurisdiction or political subdivision or of the United States, or of
any applicable foreign jurisdiction, or contravene any order, writ,
injunction, decree, or determination of any court or other authority
having jurisdiction over MFS, Seller or any Retained Subsidiary,
except in the case of clause (ii) for the expiration or termination of
the waiting period under the HSR Act and for all such cases that have
not had and could not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect.
d. ABSENCE OF CERTAIN CHANGES. Since March 31, 1998, to the Best of MFS'
Knowledge, Seller and the Retained Subsidiaries and their respective
businesses has been conducted in the ordinary course consistent with
past practices and, except for transactions contemplated by this
Agreement and the Plan of Liquidation, there has not been:
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<PAGE>
i. any event, occurrence, development or state of circumstances or
facts which has had or could reasonably be expected to result in
a Material Adverse Effect;
ii. any declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock of
Seller or of any Retained Subsidiary not owned directly or
indirectly by Seller, or any repurchase, redemption or other
acquisition by Seller or any Retained Subsidiary of any
outstanding shares of capital stock or other securities of, or
other ownership interests in, Seller or any Retained Subsidiary
or any agreement to take any such action;
iii. any change in the certificate of incorporation or by-laws of
Seller or any Retained Subsidiary;
iv. any material mortgage, pledge or subjection to lien, charge or
any other encumbrance of any of the assets, tangible or
intangible, of Seller or any Retained Subsidiary, other than in
the ordinary course of business;
v. any sale, assignment or transfer of any of material amount of the
Retained Assets or stock of any of the Retained Subsidiaries, or
cancellation of any debts or claims relating to the business of
Seller, except in each case in the ordinary course of business;
vi. any waiver of any rights of substantial value to Seller or any
Retained Subsidiary, whether or not in the ordinary course of
business; or
vii. any agreement by Seller or any Retained Subsidiary to do any of
the foregoing.
e. FINANCIAL STATEMENTS: NO UNDISCLOSED MATERIAL LIABILITIES. To the Best
of MFS' Knowledge, the Reference Balance Sheet and the other financial
statements of Seller provided to Parent have been prepared in
accordance with U.S. generally accepted accounting principles applied
on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the financial
position
16
<PAGE>
of Seller as of the dates thereof and the results of its operations
and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal recurring year-end audit adjustments).
To the Best of MFS' Knowledge, there are no liabilities of Seller or
any Retained Subsidiary of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there
is no existing condition, situation or set of circumstances which
could reasonably be expected to result in such a material liability,
other than:
i. liabilities to be provided for in the calculation of the Adjusted
Stockholder's Equity;
ii. liabilities incurred in the ordinary course of business since
March 31, 1998;
iii. liabilities relating to the Bonds;
iv. other undisclosed liabilities which, individually or in the
aggregate, are not material to Seller and the Retained
Subsidiaries taken as a whole.
f. INTERCOMPANY ACCOUNTS. Except as set forth on Exhibit 6f, to the Best
of MFS' Knowledge, since March 31, 1998, there has not been any
accrual of liability by Seller or any Retained Subsidiary to MFS or
any of its Affiliates or other transaction between Seller or any
Retained Subsidiary and MFS and any of its Affiliates, except in the
ordinary course of business of Seller and the Retained Subsidiaries
consistent with past practice.
g. INTELLECTUAL PROPERTY. To the Best of MFS' Knowledge, the intellectual
property used in whole or in part in, or required for the carrying on
of, the business of Seller and the Retained Subsidiaries in the manner
heretofore carried on are listed on Exhibit 6g and are owned by, or
validly licensed to, Seller and the Retained Subsidiaries as indicated
on such Exhibit. Except as otherwise disclosed on Exhibit 6g, to the
Best of MFS' Knowledge, Seller and the Retained Subsidiaries (i) have
the exclusive right to use such intellectual property, (ii) are the
owners of records of such intellectual property, (iii) have not
commenced or threatened to commence any suits, action or proceeding
against any
17
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Person in connection with the use of such intellectual property, and
(iv) have not conveyed, assigned or encumbered any of such
intellectual property. Except as set forth on Exhibit 6g, to the Best
of MFS' Knowledge, all registrations and filings necessary to preserve
the rights of Seller and the Retained Subsidiaries in such
intellectual property have been made and are in good standing. Except
as set forth on Exhibit 6g, to the Best of MFS' Knowledge, the conduct
of the business of Seller and the Retained Subsidiaries does not
infringe upon the intellectual property of any other Person. Except as
set forth on Exhibit 6g, to the Best of MFS' Knowledge, Seller's and
the Retained Subsidiaries' intellectual property constitute all of the
material intellectual property rights used in connection with their
businesses and are adequate to conduct such businesses as currently
conducted.
h. LITIGATION. Except as set forth on Exhibit 6h, to the Best of MFS'
Knowledge, there are no actions, suits or proceedings, at law or in
equity, by any Person (including, without limitation, Seller and the
Retained Subsidiaries), nor any arbitration, administrative or other
proceeding by or before or any investigation by any governmental
entity pending, or threatened against or affecting Seller or any of
the Retained Subsidiaries, their businesses or any of their business
assets, and, to the Best of MFS' Knowledge, no valid basis for any
such action, suit, proceeding, arbitration or investigation by or
against Seller or any of the Retained Subsidiaries. Except as
described on Exhibit 6h, to the Best of MFS' Knowledge, neither Seller
nor any of the Retained Subsidiaries is subject to any judgment, order
or decree entered in any lawsuit or proceeding nor has Seller or any
of the Retained Subsidiaries settled any claim prior to being
prosecuted in respect of it. Except as disclosed in Exhibit 6h, to the
Best of MFS' Knowledge, neither Seller nor any of the Retained
Subsidiaries is a plaintiff or complainant in any action, suit or
proceeding.
i. COMPLIANCE WITH LAWS AND COURT ORDERS. To the Best of MFS' Knowledge,
neither Seller nor any Retained Subsidiary is in violation of, and has
not since December 31, 1996 violated, and is not under investigation
with respect to, and has not been threatened to be charged with or
given notice of any violation of, any applicable law, rule,
regulation, judgment, injunction, order or decree, except for
violations
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that have not had and could not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect.
j. BONDS AND CONTRACTS. To the Best of MFS' Knowledge, there are no
outstanding claims, notices of potential claims or notices of
inadequate performance under any of the Bonds.
k. EMPLOYEE BENEFIT PLANS.
i. To the Best of MFS' Knowledge, Exhibit 6k identifies each
employee plan respecting Seller and the Retained Subsidiaries. To
the Best of MFS' Knowledge, MFS has furnished or made available
to Parent copies of such Employee Plans and all related
agreements and insurance contracts which implement each such
Employee Plan (and, if applicable, related trust agreements) and
all amendments thereto and written interpretations thereof
together with the three most recent annual reports (Form 5500
including, if applicable, Schedule B thereto) and the most recent
actuarial valuation report prepared in connection with any such
Employee Plan. To the Best of MFS' Knowledge, Exhibit 6k
identifies each such Employee Plan which is maintained in
connection with any trust described in Section 501(c)(9) of the
Code.
ii. Except as set forth on Exhibit 6k, to the Best of MFS' Knowledge,
no Employee Plan is a plan subject to Title IV (a "Title IV
Plan") of the Employee Retirement Security Act of 1974, as
amended ("ERISA"), or is a "multiemployer plan" within the
meaning of Section 3(37) of ERISA (a "Multiemployer Plan") and
neither MFS, nor any entity (an "ERISA Affiliate") that together
with MFS is or was at such time deemed a "single employer" within
the meaning of Section 4001 (b)(1) of ERISA, has at any time (or
at such time as such ERISA affiliation existed) sponsored,
maintained or contributed to or been under any obligation to
sponsor, maintain or contribute to a Title IV Plan or
Multiemployer Plan.
iii. Except as set forth on Exhibit 6k, to the Best of MFS' Knowledge,
no transaction prohibited by Section 406 of ERISA or
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Section 4975 of the Code has occurred with respect to any
Employee Plan or arrangement which is covered by Title 1 of
ERISA, which transaction has caused or will cause any of Seller
or any of the Retained Subsidiaries to incur any liability under
ERISA, the Code or otherwise, excluding transactions effected
pursuant to and in compliance with a statutory or administrative
exemption.
iv. Except as set forth on Exhibit 6k, to the Best of MFS's
Knowledge, each Employee Plan that is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period since its adoption and each trust
created under any such Plan is exempt from tax under Section 501
(a) of the Code and has been so exempt since its creation. To the
Best of MFS' Knowledge, MFS has provided Parent with the most
recent determination letter of the Internal Revenue Service
relating to each such Employee Plan. Except as set forth on
Exhibit 6k, to the Best of MFS' Knowledge, each Employee Plan has
been maintained in substantial compliance with its terms and with
the requirements prescribed by any and all applicable statutes,
orders, rules and regulations, including but not limited to ERISA
and the Code.
v. To the Best of MFS' Knowledge, Exhibit 6k identifies each benefit
arrangement (the "Benefit Arrangements") respecting Seller and
the Retained Subsidiaries. To the Best of MFS' Knowledge, MFS has
furnished or made available to Parent copies or descriptions of
each Benefit Arrangement (and, if applicable, related trust
agreements) and all amendments thereto and written
interpretations thereof Except as set forth on Exhibit 6k, to the
Best of MFS' Knowledge, each Benefit Arrangement has been
maintained in substantial compliance with its terms and with
requirements prescribed by any and all applicable statutes,
orders, rules and regulations and has been maintained in good
standing with applicable regulatory authorities.
vi. Except as set forth on Exhibit 6k, to the Best of MFS' Knowledge,
neither Seller nor any Retained Subsidiary has any current or
projected liability in respect of post-employment or post-
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retirement health or medical or life insurance benefits for
retired, former or current employees of Seller or any Retained
Subsidiary, except as required to avoid excise tax under Section
4980B of the Code.
vii. Except as set forth on Exhibit 6k, to the Best of MFS' Knowledge,
all contributions and payments accrued under each Employee Plan
and Benefit Arrangement, determined in accordance with prior
funding and accrual practices, as adjusted to include
proportional accruals for the period ending on the Closing Date,
will be discharged and paid on or prior to the Closing Date
except to the extent reflected as a liability in the calculation
of the Adjusted Stockholder's Equity or to the extent the
liability for such contribution or payment is retained by MFS,
pursuant to a separate written agreement by MFS. Except as set
forth on Exhibit 6k, to the Best of MFS' Knowledge, there has
been no amendment to, written interpretation of or announcement
(whether or not written) by MFS or any of its Affiliates or
Seller or any Retained Subsidiary relating to, or change in
employee participation or coverage under, any Employee Plan or
Benefit Arrangement that would increase materially the expense of
maintaining such Employee Plan or Benefit Arrangement above the
level of the expense incurred in respect thereof for the most
recent fiscal year ended prior to the date hereof.
viii. Except as set forth on Exhibit 6k, to the Best of MFS'
Knowledge, each Employee Plan or Benefit Arrangement which is a
"group health plan" (as defined in Code Section 5000(b)(1)) has
been operated in compliance with the group health plan
continuation coverage requirements of Section 4990B of the Code
and Sections 601-608 of ERISA, Title XXII of the Public Health
Service Act and the provisions of the Social Security Act, to the
extent such requirements are applicable. Except as set forth on
Exhibit 6k, to the Best of MFS' Knowledge, each Employee Plan or
Benefit Arrangement that is subject to Section 1862(b)(1) of the
Social Security Act has been operated in compliance with the
secondary payor requirements of Section 1862(b)(1) of such Act.
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l. CORPORATE RECORDS. To the Best of MFS' Knowledge, the certificate of
incorporation, minute books, stock records, and all other records of
Seller and Retained Subsidiaries delivered to Parent and its
representatives at the Closing will be true, correct and complete and
contain a copy of Seller's and each Retained Subsidiary's certificate
of incorporation (as amended and restated), or similarly required
document in its respective jurisdictions and by-laws.
m. GOVERNMENT CLAIMS. To the Best of MFS' Knowledge, no statement of
facts exists or has existed which would constitute valid grounds for
the assertion of a material claim by any governmental entity against
MFS, Seller or any Retained Subsidiary relating to the business, the
business assets or operations of Seller and the Retained Subsidiaries,
for any of the following: (1) defective pricing; (2) cost account
standards noncompliance; (3) unallowable cost as defined in Federal
Acquisition Regulation Part 31, including those which may be included
in indirect cost claims for prior years that have not yet been finally
agreed to by the customer, (4) fraud, and (5) all other basis for
monetary claims relating to the performance or administration of
government contracts or subcontracts.
n. INTERCOMPANY ARRANGEMENTS. Except as set forth on Exhibit 6n, neither
MFS nor any Affiliate of MFS has any interest in any property (whether
real, personal or mixed and whether tangible or intangible), used in
or pertaining to the business of Seller or the Retained Subsidiaries.
Exhibit 6n lists all agreements and arrangements between Seller or any
of the Retained Subsidiaries, on the other hand, and MFS or any of its
Affiliates on the other hand (the "Intercompany Agreements"). Except
for these Intercompany Agreements listed on Exhibit 6n (which will be
terminated effective as the Closing Date), MFS and its Affiliates, as
applicable, have performed all of the obligations required to be
performed by them and there exists no default or event, occurrence,
condition or act (including the consummation of the Transaction)
which, with the giving of notice, the lapse of time or the happening
of any event or condition under the control or direction of MFS or the
applicable Affiliate, would become a default or event of default under
any Intercompany Agreement.
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o. NO BROKER. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission payable by Parent or
Buyer in connection with this Agreement or the Transaction based upon
any written or oral agreements made by or on behalf of MFS or Seller.
p. SHARES. Seller is authorized to issue 1,000 shares of common stock.
There are 1,000 shares of common stock issued and outstanding, all of
which are issued to MFS, and all of which constitute the Shares. To
the Best of MFS' Knowledge, Exhibit 6p sets forth as to each of the
Retained Subsidiaries the numbers of shares of its capital stock
authorized, issued to Seller or issued to Persons other than Seller.
To the Best of MFS' Knowledge, there are no other shares issued or
outstanding. To the Best of MFS' Knowledge, all of the currently
issued and outstanding shares of capital stock of Seller or the
Retained Subsidiaries have been validly issued, fully paid and
nonassessable and have not been issued in violation of any law or
Seller's or Retained Subsidiary's certificate of incorporation or
by-laws. To the Best of MFS' Knowledge, there are no shares of capital
stock reserved for issuance, or any outstanding subscriptions,
options, warrants, conversion or other rights or other agreements
granting to any person, firm or corporation any interest or right to
acquire at any time, or upon the happening of any stated event, any
shares of capital stock or any other equity securities of Seller or
the Retained Subsidiaries or any interest convertible into capital
stock, or other agreements or commitments by which Seller or any of
the Retained Subsidiaries obligated to issue additional shares
of capital stock or securities convertible into capital stock or
evidencing the right to subscribe for any share of capital stock or
any stock appreciation or similar rights or requiring Seller or any of
the Retained Subsidiaries to repurchase, reacquire or redeem any of
its outstanding capital stock.
q. EQUIPMENT. To the Best of MFS' Knowledge, all of the equipment of
Seller and the Retained Subsidiaries that is materially important to
the conduct of Seller's business is in good and operable condition,
ordinary wear and tear excepted.
r. TITLE TO ASSETS. To the Best of MFS' Knowledge, Seller and the
Retained Subsidiaries have good title to all of the assets, whether
real, personal, mixed, tangible, and/or intangible, that are
materially important to the conduct of Seller's business. To the Best
of MFS' Knowledge, all
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such assets are free and clear of restrictions on or conditions to
transfer or assignment, and free and clear of mortgages, liens,
pledges, charges, encumbrances, equities, claims, easements,
rights-of-way, covenants, conditions, or restrictions, except for (i)
those disclosed in Exhibit 6r, (ii) the lien of current taxes not yet
due and payable, (iii) any statutory landlord liens and any title
deficiencies which would have been prevented by compliance with
applicable bulk sale laws, and (iv) possible minor matters that, in
the aggregate, are not substantial in amount and do not materially
detract from or interfere with the present use of any of these assets,
nor materially impair business operations.
s. NONE RESTRICTIVE AGREEMENTS. To the Best of MFS' Knowledge, neither
Seller nor any Retained Subsidiary is a party to, or its property is
bound by, any noncompetition or similar agreement that is materially
adverse or restrictive to its business.
7. COVENANTS BY MFS. MFS hereby covenants to and agrees with Parent as
follows:
a. NECESSARY ACTIONS. During the Closing Period, MFS shall take every
action reasonably required of MFS to satisfy the Parent Conditions,
and shall exert its best efforts to cause the Closing to be
consummated.
b. REPRESENTATIONS AND COVENANTS. During the Closing Period, MFS shall
use its best efforts to cause the representations and warranties made
by MSF herein to remain true and correct in all respects, and to cause
all of MFS' covenants and agreements to be performed and observed.
c. LIQUIDATING DISTRIBUTION. Immediately prior to consummating the
Merger, MFS will cause Seller to distribute to MFS all of the
Distributed Assets in the Liquidating Distribution pursuant to the
Plan of Liquidation, whereupon Seller's only assets shall be the
Retained Assets and the stock of the Retained Subsidiaries.
d. TAX ASSURANCE. On or before the Closing Date, MFS will obtain an
opinion of tax counsel to Seller and MFS substantially in form as
attached hereto as Exhibit 7d (herein called the "Tax Assurance"), to
the effect that for U.S. federal income tax purposes (i) the Merger
will be treated as the taxable sale by Seller of all of its assets
(other than the
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Distributed Assets) to Parent in exchange for the Merger Consideration
and the assumption by Buyer of the liabilities of Seller, (ii) no gain
or loss will be recognized by Seller on the distribution to MFS of the
Distributed Assets and the Merger Consideration pursuant to the Plan
of Liquidation and (iii) no gain or loss will be recognized by MFS on
the receipt by MFS of the Distributed Assets and the Merger
Consideration pursuant to the Plan of Liquidation. The issuance of the
Tax Assurance shall be conditioned on the receipt by such tax counsel
of representation letters from each of the Parties, in each case, in
form and substance reasonably satisfactory to such tax counsel, and
each such representation letter shall be dated on or before the date
of such Tax Assurance and shall not have been withdrawn or modified in
any material respect.
e. ORDINARY COURSE. During the Closing Period, MFS will not, and will
not cause Setter to, take or agree to take any of the actions (other
than those actions contemplated by this Agreement) specified in
Section 6d or any of the following other actions:
i. adjust, split, combine or reclassify any capital stock of Seller
or any of the Retained Subsidiaries or issue or authorize or
agree or commit to issue or authorize the issuance of any other
securities in respect of or in substitution for capital stock of
Seller or any of the retained Subsidiaries, or sell, lease,
mortgage or otherwise dispose of or otherwise encumber any
assets, rights or shares of capital stock of Seller or any of the
Retained Subsidiaries;
ii. make any material investment, either by purchase of stock or
securities, contributions to capital, asset transfers, or
purchases of assets, in any Person or otherwise acquire direct or
indirect control over any Person;
iii. (A) grant any material increase in compensation or benefits to
the employees, officers or directors of Seller or the Retained
Subsidiaries in their capacities as such, except in accordance
with past practice previously or as required by law, (B) pay any
severance or termination pay or any bonus other than pursuant to
written policies or written contracts, or (C) enter into or amend
any severance or change in control contracts with officers,
employees, partners or directors of any of Seller or the Retained
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Subsidiaries (or where Seller or the Retained Subsidiaries have
any liability for such payments); or
iv. incur indebtedness for borrowed money outside the ordinary course
of business; or
v. modify, amend, terminate or extend any Contract or any other
contract that is material to its operations.
f. ACCESS FOR DUE DILIGENCE. During the Closing Period, MFS shall (i)
permit Parent and its employees, agents, counsel, accountants or other
representatives, without undue interference to the ordinary conduct of
Seller's business, to have reasonable access during normal business
hours and upon reasonable notice to (A) the premises of Seller and
each Retained Subsidiary, (B) Seller's assets and, in particular to
any information, including all books and records whether retained by
MFS, Seller or a Retained Subsidiary or otherwise (but excluding the
portions of any federal income tax returns and state and local
unitary, combined, consolidated or other tax returns or records which
do not relate solely to Seller and/or the Retained Subsidiaries), (C)
all contracts, and (D) the senior management of Seller and each
Retained Subsidiary; and (ii) furnish to Parent or its employees,
agents, counsel, accountants or other representatives such financial
and operating data and other information with respect to Seller and
each Retained Subsidiary as Parent shall from time to time reasonably
request in writing.
g. NOTICE OF UNTRUE REPRESENTATION OR WARRANTY. MFS shall promptly notify
Parent upon any representation or warranty made by it contained in
this Agreement becoming untrue or incorrect during the Closing Period.
During the Closing Period, Seller agrees to give written notice
promptly to Parent upon becoming aware of the occurrence or impending
occurrence of any event or circumstance relating to it or any of the
Retained Subsidiaries which is reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect. Any such notification
shall set out particulars of the untrue or incorrect representation or
warranty and details of any actions being taken by MFS to rectify that
state of affairs.
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h. CONFIDENTIALITY. During the Closing Period and after the Closing, MFS
will keep confidential all information relating to Seller and each
Retained Subsidiary unless such information is or becomes generally
available to the public other than as a result of a disclosure in
violation of this Agreement or such information is required to be
disclosed pursuant to applicable law. In the event that MFS is
requested in any proceeding to disclose any such confidential
information, MFS will, except to the extent prohibited by applicable
law, give Parent prompt notice of such request so that Parent may seek
an appropriate protective order. If, in the absence of a protective
order, MFS is nonetheless compelled to disclose such confidential
information, Sellers may disclose such information without liability
hereunder.
i. RELEASES. MFS agrees to obtain prior to the Closing Date releases of
Seller and the Retained Subsidiaries from all guaranties which any of
them have entered into to guaranty any debt or other obligation of MFS
or any of its Affiliates.
j. RESIGNATIONS. On or before the Closing Date, MFS will deliver to
Parent the resignations or removals of all of the officers and
directors of Seller and each Retained Subsidiary who will be officers,
directors or employees of MFS or any of its Affiliates after the
Closing Date, from their positions with Seller or any Retained
Subsidiary.
k. BOOKS AND RECORDS. MFS covenants and agrees that for six years
following the Closing Date it will retain, and provide to Parent as
and when requested by Parent, any original accounting books and
records relating solely to Seller and its business that are not
available at the facilities of Seller on the Closing Date.
l. CERTIFICATE OF MERGER. MFS will cause Seller to execute and deliver
for filing with the Secretary of State of the State of Delaware in
accordance with the Delaware General Corporation Law (the "DGCL") a
certificate of merger providing for the Merger (the "Certificate of
Merger").
m. PLAN OF LIQUIDATION. MFS will cause Seller to adopt the Plan of
Liquidation no later than the date immediately preceding the Closing
Date; the Plan of Liquidation may be amended, modified or supplemented
from time to time as MFS and Seller shall mutually determine.
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8. COVENANTS BY PARENT. Parent hereby covenants to and agrees with MFS as
follows:
a. NECESSARY ACTIONS. During the Closing Period, Parent shall take every
action reasonably required of Parent to satisfy the MFS Conditions,
and shall exert its best efforts to cause the Closing to be
consummated.
b. REPRESENTATIONS AND COVENANTS. During the Closing Period, Parent shall
use its best efforts to cause the representations and warranties made
by Parent herein to remain true and correct in all respects, and to
cause all of Parent's covenants and agreements to be performed and
observed.
c. CERTIFICATE OF MERGER. Parent will cause Buyer to execute and
deliver for filing with the Secretary of State of the State of
Delaware in accordance with the DGCL the Certificate of Merger.
d. DEPOSIT. Not later than the close of business on April 27, 1998,
Parent will cause to be deposited with the Escrow Agent under the
Escrow Agreement (each as defined in Section 11) an aggregate of
$5,000,000 in cash, such amount to be held as the Deposit and to be
disposed of as provided for in Section 11. In the event that Parent
shall exercise its extension option pursuant to the proviso to Section
1lb, not later than the close of business on May 31, 1998, Parent
will cause to be deposited with the Escrow Agent under the Escrow
Agreement an aggregate of an additional $5,000,000 in cash, such
amount to be added to the Deposit and to be disposed as provided for
in Section 11.
e. EXTENSION FEES. In the event that Parent shall exercise its extension
option pursuant to the proviso to Section 11b, it shall pay an
extension fee in cash to MFS on the earlier to occur of June 30, 1998
or the Closing and, if the Closing does not occur on or prior to June
30, 1998, it shall pay a second extension fee in cash to MFS on the
earlier to occur of July 31, 1998 or the Closing. The amount of the
first extension fee shall be equal to $1,000,000 if the payment is
made on June 30, 1998 or, if paid earlier, the amount determined by
multiplying the number of actual days elapsed from May 31, 1998
through and including the date of payment times $1,000,000/30. The
amount of the second extension
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fee shall be equal to $1,000,000 if the payment is made on July
3l, 1998 or, if paid earlier, the amount determined by multiplying the
number of actual days elapsed from June 30, 1998 through and including
the date of payment times $1,000,000/31.
9. PARENT CONDITIONS TO CLOSING. The obligation of Parent to effect the
Closing shall be subject and conditioned upon the fact that, on the Closing
Date, each and every one of the following (herein called the "Parent
Conditions") shall have occurred or shall be true:
a. MFS AND SELLER REPRESENTATIONS AND WARRANTIES. The representations and
warranties of MFS and Seller contained herein shall have been true and
correct in all material respects when made.
b. MFS' AND SELLER'S PERFORMANCE. MFS and seller shall have performed in
all material respects its covenants, agreements and obligations set
forth in this Agreement required to be performed during the Closing
Period or on the Closing Date, including without limitation the
execution and delivery of the agreements and other documents
contemplated to be delivered by MFS pursuant to Section 13.
c. NO INJUNCTION. No preliminary or permanent injunction which prohibits
the consummation of the Transaction shall have been issued by any
federal or state court and remain in effect.
d. TAX ASSURANCE. MFS shall have received the Tax Assurance and shall
have delivered a copy thereof to Parent.
e. HSR ACT. The waiting period under the HSR Act shall have expired or
been terminated.
Parent may, in its sole and absolute discretion, waive any Parent Condition only
by a written, express waiver delivered to MFS which refers to this Section 9 and
to the Parent Conditions so waived.
10. MFS CONDITIONS TO CLOSING. The obligation of MFS to effect the Closing
shall be subject and conditioned upon the fact that on the Closing Date, each
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and every one of the following (herein called "MFS Conditions",) shall have
occurred or shall be true:
a. PARENT REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Parent and Buyer contained herein shall have been true
and correct in all material respects when made.
b. PARENT AND BUYER PERFORMANCE. Parent and Buyer shall have performed in
all material respects its covenants, agreements and obligations set
forth in this Agreement required to be performed during the Closing
Period or on the Closing Date, including without limitation the
execution and delivery of the agreements and other documents
contemplated TO be delivered by Parent or Buyer pursuant to Section
13, the timely making of all payments into the Deposit required under
Section 8(d) and the timely payment of all extension fees pursuant to
Section 8(e).
c. NO INJUNCTION. No preliminary or permanent injunction which prohibits
the consummation of the Transaction shall have been issued by any
federal or state court and remain in effect.
d. TAX ASSURANCE. MFS shall have received the Tax Assurance
substantially in the form as attached hereto as Exhibit 7d.
e. HSR ACT. The waiting period under the HSR Act shall have expired or
been terminated.
MFS may, in its sole and absolute discretion, waive any MFS condition only by a
written, express waiver delivered to parent which refers to this Section 10 and
to the MFS Condition so waived.
11. TERMINATION. This Agreement may be terminated at any time prior to the
Closing, without any Party having any liability to any other Party as follows:
a. MUTUAL ACTION. MFS and Parent may so terminate this Agreement by
mutual, written agreement; or
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b. BY EITHER PARTY. Each, Party may terminate this Agreement upon
delivery of written notice to the other Party if the closing does not
occur on or prior to May 31, 1998, unless the waiting period under the
HSR Act shall not have expired or been terminated on or prior to such
date, in which event, if the Closing does not occur on or prior to
June 30, 1998; PROVIDED that Parent shall have the option to extend
the Closing Period until on or prior to July 31, 1998 if it shall have
timely made the payments into the Deposit contemplated by Section 8(d)
and shall pay as and when due the extension fees contemplated by
Section 8(e).
Notwithstanding the foregoing, in the event all of the Parent Conditions
have been satisfied (or waived by Parent), but Parent fails or refuses to
close and consummate the Transaction on the date required under Section 13,
then MFS, at its election any time thereafter, may terminate this Agreement
and MFS and Parent shall promptly authorize and direct MFS' attorneys to
tender and remit to MFS the Deposit. Parent and MFS expressly agree that
payment to MFS of the Deposit is a fair and accurate liquidation and
measure of the damages which will be suffered by MFS in the event Parent so
fails to close and consummate the Transaction (which damages would be
difficult to calculate), and that such payment is not punitive. In the
event the Transaction does not close for any reason other than Parent's
failure or refusal to close and consummate the Transaction after all of
Parents Conditions have been satisfied (or waived by Parent), then upon
termination of this Agreement by Parent pursuant to Section 11b, MFS and
Parent shall promptly authorize and direct MFS' attorneys, Skadden, Arps,
Slate, Meagher & Flom LLP, to tender and remit the Deposit to Parent. MFS
and Parent agree that the Deposit will be held and disposed of in
accordance with the Escrow Agreement entered into as of the date hereof
(the "Escrow Agreement") among MFS, Parent and Skadden, Arps, State,
Meagher & Flom LLP, as Escrow Agent (the "Escrow Agent"). If either Party
terminates this Agreement pursuant to this Section 11, all obligations of
the Parties shall terminate without any liability of either Party to the
other Party (except for any liability of any party then in breach);
provided, however, that the confidentiality provisions contained in Section
7h, the extension fees provided for in Section 8(e), this Section 11, the
Option provided for in Section 17 and the various provisions in Section 18
shall survive any such termination.
12. CLOSING DATE. The "Closing Date" is hereby defined as the day on which
the Merger occurs pursuant to Section 13.
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13. CLOSING. Provided the MFS Conditions and the Parent Conditions have
then been satisfied or waived by the Party that is the beneficiary thereof, MFS
and Parent hereby agree to consummate the Closing of the Transaction at 10:00 AM
EDT on the third business day following expiration or termination of the
applicable waiting period under the HSR Act or, if Parent property exercises its
extension option pursuant to the proviso to Section 11(b), at 10:00 AM EDT on
the business day not later than July 31, 1998 that Parent selects and provides
to MFS written notice of at least three business days prior to such date. The
Closing will be held at the offices of MFS' attorneys in New York, New York, at
which the Parties shall cause the following to occur:
a. MERGER. MFS and Parent shall cause Seller to be merged with and into
Buyer with Buyer as the surviving corporation and Buyer's certificate
of incorporation and by-laws in accordance with all applicable
requirements of, and to have the effect contemplated by, the DGCL.
b. MERGER CONSIDERATION. Parent shall make the payment required by
Section 4a.
c. DEPOSIT. MFS and Parent shall authorize and direct its attorneys to
release the Deposit to MFS, whereby such release shall be treated as a
partial payment by Parent of the Merger Consideration in such amount.
d. EXTENSION FEES. Parent shall pay to MFS the extension fee, if any, due
on such date pursuant to Section 8e.
e. ASSUMPTION AND INDEMNITY AGREEMENT. In the event that Parent shall not
deliver Satisfactory Releases in respect of all of the Bonds, Buyer
and Parent shall execute and deliver to MFS the Assumption and
Indemnity Agreement.
f. STOCK PLEDGE AGREEMENT. In the event that Parent shall be required to
deliver the Assumption and Indemnity Agreement, Parent shall execute
and deliver to MFS the Stock Pledge Agreement, and shall
contemporaneously deliver to MFS the shares pledged thereunder,
together with stock powers relating thereto, endorsed in blank.
g. MASTER SERVICES AGREEMENT. Parent and MFS shall execute and deliver,
and MFS shall cause certain of its Affiliates to execute and deliver,
the Master Services Agreement
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h. LICENSE AGREEMENT. Parent and MFS will execute License Agreement.
i. WORLDCOM GUARANTEE. MFS shall cause to be executed and delivered to
Parent the WorldCom Guarantee.
j. OTHER DOCUMENTS AND ACTIONS. Each of the Parties shall undertake such
other actions, and execute (or cause to be executed) such other
documents or instruments, as shall be necessary to accomplish and
effect the Transaction.
14. GENERAL INDEMNIFICATION PROVISIONS.
a. GENERAL. The representations, warranties, covenants and agreements of
MFS set forth in this Agreement, other than those set forth in Section
15 (herein called "MFS Undertakings"), shall survive the Closing and
shall not be affected, modified, diminished or released by the
Closing, except as provided in this Section. The representations,
warranties, covenants and agreements of Parent set forth in this
Agreement (herein called the "Parent Undertakings"), shall survive the
Closing and shall not be affected, modified, diminished or released by
the Closing, except as provided in this Section.
b. DEFINITIONS. The Parties hereby define the following terms:
i. "EVENT OF MFS INDEMNIFICATION" is the breach, failure, or default
of any representation, warranty, agreement or covenant of MFS set
forth in this Agreement, other than those set forth in Section 15
or 16 (including any MFS Undertaking), or in any certificate or
other writing delivered in connection herewith, or any facts or
circumstances constituting such breach, failure, or default.
ii. "EVENT OF PARENT INDEMNIFICATION" is the breach, failure of
default of any representation, warranty, agreement or covenant of
Parent set forth in this Agreement, other than those set forth in
Section 16 (including any Parent Undertaking), or in any
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certificate or other writing delivered in connection herewith or
therewith, or any facts or circumstances constituting such
breach, failure or default.
iii. "LOSSES" are any and all losses, damages, expenses (including
reasonable attorneys' and accountants' fees and disbursements as
incurred) and assessments sustained, suffered or incurred by any
Parent or MFS, as the case may be, arising from or in connection
with any Event of MFS Indemnification or Event of Parent
Indemnification, respectively, whether or not involving any claim
by a third party.
iv. "DETERMINATION DATE" is the first anniversary of the Closing
Date.
c. PARENT INDEMNIFICATION. Parent shall indemnify and hold harmless MFS,
its Affiliates and their respective officers and directors
(collectively, the "MFS Indemnified Group"), from and against, and
shall pay and reimburse the MFS Indemnified Group forthwith upon
written demand for, any and all of the MFS Indemnified Group Losses
arising from or in connection with any Event of Parent
Indemnification. However, notwithstanding the preceding sentence,
Parent shall have no such obligation to so indemnify, hold harmless,
pay or reimburse respecting any specific Parent Undertaking, unless
MFS shall, on or prior to the Determination Date, detiver to Parent a
written notice (herein called an "Indemnification Notice") which:
i. refers to this Section 14c, and
ii. states that MFS intends to make a claim respecting a
therein specified Parent Undertaking under the preceding
sentence, and the amount thereof to the extent then known.
d. MFS INDEMNIFICATION. MFS shall indemnify and hold harmless Parent, its
Affiliates and their respective officers and directors (collectively,
the "Parent Indemnified Group"), from and against, and shall pay and
reimburse the Parent Indemnified Group forthwith upon written demand
for, any and all the Parent Indemnified Group's Losses arising from or
in connection with any Event of MFS Indemnification. However,
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Notwithstanding the preceding sentence, MFS shall have no such
obligation to so indemnify, hold harmless, pay or reimburse respecting
any specific MFS Undertaking, unless Parent shall, on or prior to the
Determination Date, deliver to MFS a written notice (also herein
called an "Indemnification Notice") which:
i. refers to this Section 14d, and
ii. states that Parent intends to make a claim respecting a
therein-specified MFS Undertaking under the preceding sentence,
and the amount thereof to the extent then known.
e. LIMITATIONS. Notwithstanding any other provisions of this Agreement:
i. Parent will have no liability for indemnification under this
Section until the aggregate of all claims by the MFS Indemnified
Group exceeds $500,000; and
ii. MFS will have no liability for indemnification under this Section
until the aggregate of all claims by the Parent Indemnified Group
exceeds $500,000; and
iii. the limitations provided for in this Section 14e shall not affect
the indemnity obligations of Parent pursuant to the Assumption
and Indemnity Agreement or the Stock Pledge Agreement.
f. COOPERATION. MFS and Parent shall cooperate in the resolution of
claims that are made by third parties.
15. SPECIAL PROVISIONS RESPECTING TAXES.
a. TAX DEFINITIONS. For purposes of this Section 15, the following terms
have the following meanings:
i. "Buyer Indemnitee" means Buyer, any of its Affiliates and,
effective upon the Closing, the Controlled Subsidiaries.
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ii. "COMBINED STATE TAX" means any income or franchise Tax payable
to any state or local taxing jurisdiction in which Seller or any
Controlled Subsidiary joins with MFS or an Affiliate of MFS
(other than Seller or the Controlled Subsidiaries) to file a
consolidated, combined or unitary Return with respect to such
income or franchise Tax.
iii. "FEDERAL TAX" means any tax imposed under subtitle A of the
Code.
iv. "MFS GROUP" means (i) with respect to Federal Taxes, each
affiliated group of corporations (as defined in Section 1504(a)
of the Code) of which MFS is or was a member, and (ii) with
respect to Combined State Taxes, the consolidated, combined or
unitary group of which MFS or any of its Affiliates is or was a
member, but excluding Seller or the Controlled Subsidiaries.
v. "MFS INDEMNITEE" means MFS and any of its Affiliates.
vi. "POST-CLOSING TAX PERIOD" means any Tax period beginning after
March 31, 1998 and, with respect to any Tax period beginning
before and ending after March 31, 1998, the portion of such Tax
period that begins on April 1, 1998.
vii. "PRE-CLOSING TAX PERIOD" means any Tax period ending on or
before March 31, 1998 and, with respect to any Tax period
beginning before and ending after March 31, 1998, the portion of
such Tax period that ends on March 31, 1998.
viii. "RETURN" OR "RETURNS" has the meaning set forth in Section
15(b).
ix. "SECTION 338(H)(10) ELECTION" means a timely election described
in Section 338(h)(10) of the Code with respect to the sale of
the stock of the Controlled Subsidiaries to Buyer pursuant to
this Agreement. Section 338(h)(10) Election shall include any
corresponding election under any other relevant Tax laws, if an
election is made under Section 338(h)(1O) of the Code.
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x. "SECTION 338 FORMS" means all returns, documents, statements and
other forms that are required to be submitted to any Taxing
Authority in connection with a Section 338(h)(10)
Election.
xi. "STRADDLE TAX PERIOD" means any Tax period beginning before and
ending after March 31, 1998.
xii. "STRADDLE PERIOD TAXES" means Taxes imposed with respect to a
Straddle Tax Period.
xiii. "TAX" means (i) any Federal Tax and any state, local or foreign
tax, including, without limitation, net income, alternative or
add-on minimum tax, gross income, gross receipts, sales, use, ad
valorem, value added, transfer, franchise, profits, license,
withholding on amounts paid to or by Seller or any Controlled
Subsidiary, payroll, employment social security, unemployment,
excise, severance, stamp, occupation, premium, property,
intangibles, capital stock, disability, license, environmental
or windfall profit tax, or other custom, duty, levy,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest, penalty, addition to tax
or additional amount imposed by any governmental authority
responsible for the imposition of any such tax (a "Taxing
Authority"); (ii) any liability of Seller or any Controlled
Subsidiary for the payment of any amounts of the type described
in clause (i) as a result of being a member of an affiliated,
consolidated, combined or unitary group, or being a party to any
agreement, or arrangement whereby liability of Seller or any
Controlled Subsidiary for payment of such amounts was determined
or taken into account with reference to the liability of any
other person for any Pre-Closing Tax Period; and (iii) except to
the extent described in clause (i) above of this definition,
liability of Seller or any Controlled Subsidiary for the payment
of any amounts as a result of being party to any Tax Sharing
Agreement or with respect to the payment of any amounts of the
type described in (i) or (ii) as a result of any express or
implied obligation to indemnify any other Person.
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xiv. "TAXING AUTHORITY" has the meaning set forth in Section
15(a)(xiii).
xv. "TAX BENEFIT" means the value, when actually received, of any
deduction, loss, credit or refund (other than a Returnable
Refund or Credit) to Buyer, an Affiliate of Buyer (including,
effective upon the Closing, the Controlled Subsidiaries), or
MFS, as the case may be.
xvi. "TAX INDEMNIFICATION PERIOD" means (a) with respect to any Tax
described in clause (i) or (ii) of the definition of "Tax," any
Pre-Closing Tax Period of Seller or any Controlled Subsidiary
and (b) with respect to any Tax described in clause (iii) of
the definition of "Tax", the survival period of the obligation
under the applicable contract or arrangement.
xvii. "TAX SHARING AGREEMENTS" means all existing Tax sharing
agreements or arrangements (whether or not written) binding
Seller or any Controlled Subsidiary, (including any agreements
or arrangements which afford any other person the benefit of
any Tax asset of Seller or any Controlled Subsidiary, afford
Seller or any Controlled Subsidiary the benefit of any Tax
asset of any other person or require or permit the transfer or
assignment of income, revenues, receipts, or gains).
xviii. "TRANSFER TAXES" has the meaning set forth in Section 15c(vii).
xix. "TRUST FUND TAXES" mean (i) all accrued and recorded
liabilities on the Closing Balance Sheet for sales and use
Taxes of Seller and any Controlled Subsidiary and (ii) the
amount of all payroll Taxes withheld or accrued and recorded on
the Closing Balance Sheet, including FUTA and the employer and
employee portions of FICA and Medicare Taxes, which relate to
any payrolls of Seller or any Controlled Subsidiary paid on or
before March 31, 1998 for which the related payroll Taxes have
not been remitted to the appropriate Taxing Authorities as of
March 31, 1998.
b. TAX REPRESENTATION. MFS represents and warrants to Buyer as of the
date hereof and as of the Closing Date that, to the Best of MFS'
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Knowledge, except asset forth on Ehibit 5b-l or accrued and recorded
on the Reference Balance Sheet, and except when the failure to pay
Taxes or to file Returns as required below would not have a material
adverse effect; (i) all Tax returns, statements, reports and forms
(including, without limitation, estimated tax or information returns
and reports) required to be filed with any taxing Authority
(collectively, the "Returns") with respect to any Pre-Closing Tax
Period by or on behalf of Seller or any Controlled Subsidiary, have to
the extent required to be filed on or before the date hereof, been
filed when due in accordance with all applicable laws; (ii) as of the
time of filing, such Returns correctly reflected in all material
respects the income, business, assets, operations, activities and
status of Seller, its Controlled Subsidiaries and any other
information relating to Seller and its Controlled Subsidiaries
required to be shown therein; (iii) all Taxes shown as due and payable
on such Returns have been timely paid or withheld and remitted to the
appropriate Taxing Authority; (iv) neither Seller nor any Controlled
Subsidiary is delinquent in the payment of any Tax; (v) there is no
claim, audit, action, suit, proceeding, or investigation now pending
or threatened against or with respect to the MFS Group, Seller or any
Controlled Subsidiary in respect of any Tax that could have a material
adverse effect; (vi) there are no requests for filings or
determinations in respect of any Tax pending between Seller or any
Controlled Subsidiary and any Taxing Authority; (vii) none of the
property owned or used by Seller or any Controlled Subsidiary is
subject to a lease, other than a "true" lease for Federal Tax
purposes; (viii) none of the property owned by Seller or any
Controlled Subsidiary is "tax-exempt use property" within the meaning
of Section 168(h) of the Code; (ix) there are no liens for Taxes upon
the assets of Seller or any Controlled Subsidiary except liens for
current Taxes not yet due and payable, (x) MFS is not subject to
withholding under Section 1445 of the Code with respect to the Merger;
and (xi) Exhibit 15b-2 contains a list of all jurisdictions (whether
domestic or foreign) in which an income Tax Return is required to be
filed by or on behalf of Seller or any Controlled Subsidiary for the
1996 and/or 1997 taxable years.
c. COVENANTS.
i. MFS and Buyer shall prepare Exhibit 15c, which shall allocate
the Merger Consideration and the amount of the liabilities
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assumed by Buyer (the "Total Consideration") among the Retained
Assets and stock of the Retained Subsidiaries transferred to
Buyer pursuant to Section 2 of this Agreement in accordance with
Section 1060 of the Code and Treasury Regulations promulgated
thereunder. MFS and Buyer shall complete Exhibit 15c at least 20
days prior to the earliest of the date Form 8594 is required to
be filed or the date any similar forms are required to be filed
under state or local tax law. In the event that Parent and MFS
are unable to mutually agree upon the allocation of the Total
Consideration among the Retained Assets and the stock of the
Retained Subsidiaries for purposes of completing Exhibit 15c,
such allocation shall be made (and Exhibit 15c shall be
completed), based upon the fair market value of the Retained
Assets and stock of the Retained Subsidiaries as determined by
an appraisal conducted by a nationally recognized accounting
firm as Buyer and Seller shall mutually agree upon (the
"Appraiser"). Parent and MFS shall share equally in all fees and
expenses of the appraisal conducted by the Appraiser. MFS and
Buyer shall each report the transactions contemplated under this
Agreement and any related agreements for all Tax and other
purposes (including Section 1060 of the Code) consistent with
the information set forth on Exhibit 15c. MFS and Buyer shall
timely file Form 8594 (and any similar forms required under
state or local tax law) in accordance with the requirements of
Section 1060 of the Code (or state or local tax law, as the case
may be) and this Section 15c(i).
ii. With respect to the purchase and sale of the stock of the
Controlled Subsidiaries hereunder, MFS (and Seller) and
Buyer shall jointly make the Section 338(h)(1O) Election with
respect to the Controlled Subsidiaries in accordance with
applicable Tax laws and as set forth herein. Buyer and MFS shall
report the purchase and sale under this Agreement consistent
with such Section 338(h)(10) Election; Buyer and MFS shall not
take a position or an action contrary thereto.
(a) Buyer and MFS shall be responsible for the preparation and
timely filing of all Section 338 Forms in accordance with
applicable Tax laws and the terms of this Agree-
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ment. Upon request from MFS, Buyer shall execute and deliver
to MFS such documents or forms as are reasonably requested
and are required by any Tax laws in order to properly
complete the Section 338 Forms, at least twenty (20) days
prior to the date such Section 338 Forms are required to be
filed. Buyer shall provide MFS with such information as MFS
reasonably requests in order to prepare the Section 338
Forms within thirty (30) days of MFS' request for such
information or such shorter period as is necessary to comply
with applicable Tax laws.
(b) Prior to the Closing Date, Buyer and Seller shall prepare
and agree upon (i) an estimate concerning the computation of
the Modified Aggregate Deemed Sale Price (as defined under
applicable Treasury Regulations) of the assets of the
Controlled Subsidiaries in accordance with Exhibit 15c and
the terms hereof and (ii) the allocation of such Modified
Aggregate Deemed Sale Price among such assets. After the
Closing Date, but in no event later than sixty days after
the Closing Date, Buyer and Seller shall prepare and agree
upon a final allocation. In the event that Buyer and Seller
are unable to mutually agree upon a final allocation, such
final allocation shall be based upon the fair market value
of the assets of the Controlled Subsidiaries as determined
by an appraisal conducted the Appraiser. Parent and Seller
shall share equally in all fees and expenses of the
appraisal conducted by the Appraiser. All values contained
in the final allocation shall be consistently reported for
Tax purposes by Buyer and MFS in accordance with the
procedures reflected herein.
iii. For all income Tax purposes, the Parties shall treat the
transactions contemplated by this Agreement as (i) a taxable
sale by Seller of all its assets (other than the Distributed
Assets) to Buyer in exchange for the Merger Consideration and
an assumption by Buyer of the liabilities of Seller, and (ii)
liquidating distributions by Seller to MFS of the Distributed
Assets and the Merger
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Consideration pursuant to a complete liquidation of Seller
which qualifies under Sections 332 and 337 of the Code. The
Parties shall, and shall cause their Affiliates to report all
such transactions consistently with such treatment and the Tax
Assurance.
iv. MFS shall include Seller and the Controlled Subsidiaries in its
United States consolidated federal income Tax return and in any
Combined State Tax return for all tax periods that end prior to
or that include the Closing Date for which Returns have not yet
been filed, including without limitation, the reporting of, and
paying any Tax attributable to, the Merger or this Agreement.
v. All Returns with respect to Pre-Closing. Tax Periods not
required to be filed on or before the date hereof (i) will be
filed by MFS when due in accordance with all applicable laws,
and (ii) as of the time of filing, will correctly reflect in
all material respects the facts regarding the income, business,
assets, operations, activities and status of Seller, the
Controlled Subsidiaries and any other information relating to
Seller and its Controlled Subsidiaries required to be shown
therein.
vi. The Reference Balance Sheet does not reflect, and the Closing
Balance Sheet will not reflect, (i) any accrued or recorded
income Tax liabilities of Seller or any Controlled Subsidiary
or (ii) any accrued or recorded Transfer Tax (as defined in
Section 15c(vii)) liabilities. Subject to the preceding
sentence, all Tax liabilities accrued and recorded on the
Reference Balance Sheet or the Closing Balance Sheet have been
or will be properly estimated in accordance with applicable law
as applied in a manner consistent with past practice of MFS and
Seller.
vii. All transfer, documentary, sales, use, stamp, registration,
value added, transfer gains, excise and other such similar
Taxes and fees (including any penalties and interest) incurred
in connection with this Agreement or the Merger, (including any
real property gains and/or transfer Tax and any similar Tax)
(collectively, "Transfer Taxes") shall be borne equally by MFS
and Parent and the parties will, at their equal expense, file
all Returns and other documentation with respect to all such
Taxes and fees, and, if
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required by applicable law, Buyer will, and will cause its
Affiliates to, join in the execution of any such Returns and
other documentation.
viii. Notwithstanding any other provision of this Agreement, except
to the extent previously paid by Buyer pursuant to Section
3(a)(vii), each of Parent and Buyer agree to indemnify each MFS
Indemnitee and agree to hold each MFS Indemnitee harmless from
any Taxes imposed with respect to the NT Business and the
Controlled Subsidiaries for all Post-Closing Tax Periods, but
excluding any income Taxes imposed with respect to Seller's
gain on the sale of its assets pursuant to the Merger. Upon
payment by an MFS Indemnitee of any such Taxes, Buyer and
Parent shall discharge their obligation to indemnify such MFS
Indemnitee in accordance with the terms of Section 15f.
d. TERMINATION OF EXISTING TAX SHARING AGREEMENTS. After the Closing
Date, neither Seller nor any Controlled Subsidiary shall have any
further rights or liabilities under any Tax Sharing Agreement existing
on or before the Closing Date.
e. COOPERATION ON TAX MATTERS.
i. Buyer and MFS shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the
preparation and filing of Returns (including any report
required pursuant to Section 6043 of the Code and all Treasury
Regulations promulgated thereunder), the conduct of any audit,
litigation or other proceeding with respect to Taxes and the
determination of any Taxes imposed in connection with the
transactions contemplated hereunder. Such cooperation shall
include (i) the retention and (upon the other party's request)
the provision of records and information which are reasonably
relevant to the preparation of any such Return or the conduct
of any such audit, litigation or other proceeding and (ii)
making employees available on a mutually convenient basis to
provide additional information and explanation of any material
provided hereunder. Seller (and effective upon the Closing,
Buyer) and
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MFS agree (i) to retain all books and records with respect to
Tax matters pertinent to Seller and/or the Controlled
Subsidiaries relating to any tax period that ends prior to or
includes the Closing Date, (ii) to abide by all record
retention agreements entered into with any Taxing Authority,
and (iii) to give the other party reasonable written notice
prior to destroying or discarding any such books and records
and, if the other party so requests, Seller (and effective upon
the Closing, Buyer) or MFS, as the case may be, shall allow the
other party to take possession of such books and records.
ii. Buyer and MFS further agree, upon request of the other party,
to use all reasonable efforts to obtain any certificate or
other document from any governmental authority or customer of
Seller or any Controlled Subsidiary or any other person as may
be necessary to mitigate, reduce or eliminate any Tax that
could be imposed (including but not limited to any Tax that
could be imposed with respect to the transactions contemplated
hereunder).
iii. From time to time after the Closing, Buyer, at its expense,
shall deliver to MFS all information (including memorandum
Returns, schedules, statements and supporting documentation)
when and as MFS may reasonably request, with respect to the
operations of Seller and the Controlled Subsidiaries for the
preparation of (a) the United States consolidated Federal Tax
returns of MFS and (b) any state or local Tax returns to be
filed on a consolidated, combined or unitary basis that include
Seller and/or any Controlled Subsidiary for any tax period that
ends prior to or includes the Closing Date.
f. TAX INDEMNIFICATION.
i. MFS agrees to indemnify each Buyer Indemnitee against, and
agrees to hold each Buyer Indemnitee harmless from (without
duplication of any item) (w) all Taxes of Seller or any
Controlled Subsidiary with respect to the relevant Tax
Indemnification Period, excluding (i) Trust Fund Taxes and (ii)
all Taxes accrued and recorded on the Closing Balance Sheet,
(x) all Taxes to be
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borne by MFS as specified in Section 15c(vii), (y) all income
Taxes of Seller imposed with respect to Seller's gain on the
sale of its assets pursuant to the Merger, and (z) all
liabilities, costs, expenses (including, without limitation,
reasonable expenses of investigation and attomeys' fees and
expenses), losses, damages, assessments, settlements or
judgments arising out of or incident to the imposition,
assessment or assertion of any Tax described in clauses (w),
(x) or (y), including those incurred in the contest in good
faith in appropriate proceedings relating to the imposition,
assessment or assertion of any such Tax, and any transferee
liability of Buyer in respect of any such Tax (the sum of
clauses (w), (x), (y) and (z) being referred to herein as a
"Buyer Loss"); provided, however, that Parent shall pay to MFS
any actual reduction in any Tax of Buyer or any of its
Affiliates resulting from any Tax Benefit to Buyer or any
Affiliate of Buyer with respect to such Buyer Loss or the item
or items giving rise to the Buyer Loss. Each of Parent and
Buyer agree to indemnify each MFS Indemnitee and agree to hold
each MFS Indemnitee harmless from (without duplication of any
item), (vv) all Taxes of Parent, Buyer, any of their
Affiliates, Seller and the Controlled Subsidiaries with respect
to a Post-Closing Tax Period excluding (1) all income Taxes of
Seller imposed with respect to Seller's gain on the sale of its
assets pursuant to the Merger and (2) all Taxes to be borne by
MFS pursuant to Section 15c(vii)), (ww) all Trust Fund Taxes,
(xx) all Taxes to be borne by Buyer pursuant to Section
15c(vii) of this Agreement, (yy) all Taxes accrued and recorded
on the Closing Balance Sheet, and (zz) all liabilities, costs,
expenses (including, without limitation, reasonable expenses of
investigation and attorneys' fees and expenses), losses,
damages, assessments, settlements or judgements arising out of
or incident to the imposition, assessment or assertion of any
Tax described in (vv), (ww), (xx) or (yy) including those
incurred in the contest in good faith in appropriate
proceedings relating to the imposition, assessment or assertion
of any such Tax (the sum of (vv), (ww), (xx), (yy) and (zz)
being referred to herein as "MFS Loss"); provided, however,
that MFS shall pay to Buyer any actual reduction in any Tax of
MFS or any of its Affiliates resulting from any Tax Benefit to
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MFS or any Affiliate of MFS with respect to such MFS Loss or
the item or items giving rise to the MFS Loss.
ii. For purposes of Section 15, the following rules shall apply to
determine the amount of Straddle Period Taxes that relate to a
Pre-Closing Tax Period or a Post-Closing Tax Period (unless
such Straddle Period Taxes are allocated between Buyer and MFS
pursuant to another Section of this Section 15 in which case
such other Section shall apply instead of this Section
15f(ii)). In the case of any Straddle Period Tax imposed on a
periodic basis that is based upon or related to shareholders'
equity, income, gross receipts, gross income, franchise,
profits or sales and use, the amount of such Straddle Period
Tax that relates to the relevant Pre-Closing Tax Period shall
be the amount that would be payable if the relevant Straddle
Tax Period ended on March 31, 1998. In the case of any other
Straddle Period Tax imposed on a periodic basis, the amount of
such Straddle Period Tax that relates to the relevant
Pre-Closing Tax Period shall be the amount of such Straddle
Period Tax for the entire Straddle Tax Period multiplied by a
fraction the numerator of which is the number of days in the
portion of the Straddle Tax Period that ends on March 31, 1998
and the denominator of which is the total number of days in the
Straddle Tax Period. Any Straddle Period Taxes that are not
deemed to relate to a Pre-Closing Tax Period pursuant to this
Section 15f(iii) shall be deemed to relate to a Post-Closing
Period. All determinations necessary to give effect to the
foregoing allocations shall be made in a manner consistent with
prior practice of Seller and the Controlled Subsidiaries.
iii. Upon payment by any Buyer Indemnitee of any Buyer Loss (and the
provision of written proof thereof), MFS shall discharge its
obligation to indemnify such Buyer Indemnitee against such
Buyer Loss by paying to Buyer an amount equal to the amount of
such Buyer Loss. Upon payment by any MFS Indemnitee of any MFS
Loss (and the provision of written proof thereof), Buyer shall
discharge its obligation to indemnify the MFS Indemnitee
against such MFS Loss by paying to MFS an amount equal to such
MFS Loss.
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iv. Any payment pursuant to this Section 15f shall be made not
later than 15 days after receipt by MFS or Buyer (as the case
may be) of written notice from the other party stating that an
indemnified Loss has been paid by a Buyer Indemnitee or MFS
Indemnitee (as the case may be), the amount thereof and the
indemnity payment requested. For income Tax purposes, MFS and
Buyer agree to treat, and to cause their respective Affiliates
to treat, all indemnification payments made under this Section
15f as adjustments to the Merger Consideration.
v. Each party agrees to give prompt written notice to the other of
any indemnified Loss or the assertion of any claim, or the
commencement of any audit, examination, suit, action or
proceeding in respect of which indemnification may be sought
under this Section 15f of which such party is aware (specifying
with reasonable particularity the basis therefor) and will give
the other party such information with respect thereto as the
other party may reasonably request; provided, that the failure
to timely provide such notice shall reduce the other party's
indemnity obligation to the extent that such failure prejudices
the other party.
vi. MFS shall have full responsibility and discretion for the
handling of any Tax controversy involving Seller or any of the
Controlled Subsidiaries that relates to any tax period of
Seller or the Controlled Subsidiaries ending upon or before
consummation of the merger, including an audit, a protest to
the Appeals Division of the Internal Revenue Service, or
comparable Taxing Authority, and litigation in the Tax Court or
any other court of competent jurisdiction ("Tax Controversy");
PROVIDED, HOWEVER, that with respect to any such Tax
Controversy that could give rise to an indemnification
obligation of Parent and Buyer under Section 15c(viii), (i) MFS
shall reasonably keep Buyer advised and shall reasonably
consult with Buyer with respect to such Tax Controversy and
(ii) MFS shall not settle such Tax Controversy without Buyer's
consent, which shall not be unreasonably withheld (provided
however, that in no event shall either of the requirements set
forth in (i) or (ii) be construed to require MFS (or any
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of its affiliates) to extend an statute of limitations or
otherwise keep any Tax audit or period open). Buyer shall have
full responsibility and discretion for the handling of any Tax
Controversy involving Seller or any of the Controlled
Subsidiaries that relates to any tax period of Seller or the
Controlled Subsidiaries that begins before and ends after the
consummation of the Merger; PROVIDED, HOWEVER, that with
respect to any such Tax Controversy that could give rise to an
indemnification obligation of MFS under this Agreement, (i)
Buyer shall reasonably keep MFS advised and shall reasonably
consult with MFS with respect to such Tax Controversy and (ii)
Buyer shall not settle such Tax Controversy without MFS'
consent, which shall not be unreasonably withheld. MFS and
Buyer shall also jointly control the defense of any claim that
relates to the parties' allocation of the purchase price. Buyer
shall promptly furnish MFS with a copy of any correspondence
received from any Taxing Authority by Buyer or any Affiliate of
Buyer with respect to any Tax period for which Buyer may be
entitled to indemnification under Section 15f.
vii. No investigation by Buyer or any of its Affiliates at or prior
to the Closing Date shall relieve MFS of any liability
hereunder.
viii. Any claim of any Buyer Indemnitee (other than Buyer) under this
Section 15f may be made and enforced by Buyer on behalf of such
Buyer Indemnitee. Any claim of any MFS Indemnitee (other than
MFS) under this Section 15f may be made and enforced by MFS on
behalf of such MFS Indemnitee.
g. TAX REFUNDS. Buyer shall, within 15 days of receipt of any Tax refund
or credit by or on behalf of Buyer or any Affiliate thereof or
successor thereto (other than a refund or credit with respect to Taxes
paid by Buyer or any Affiliate thereof or successor thereto on or
after the Closing Date and not indemnified by MFS pursuant to Section
15f(i)) for or attributable to any Tax with respect to which Buyer
would be entitled to indemnification under Section 15f, pay such Tax
refund or credit (a "Returnable Refund or Credit") to MFS (including
any interest and additions thereon), provided, that MFS shall pay to
Buyer an amount representing all or part of any Returnable Refund or
Credit (including
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any interest and additions thereon) with respect to which Buyer
has made a payment to MFS under this Section 15g within 15 days
of the receipt by MFS of written notice from Buyer that Buyer
or any Affiliate thereof or successor thereto was subsequently
required to return such amount of the Returnable Refund or
Credit to the relevant Taxing Authority. If the amount of any
Returnable Refund or Credit is applied against any other
liability of Buyer or any Affiliate or successor thereto for
Taxes for any Post-Closing Period, Buyer shall, within 15 days
of the date of notice of such application, pay to MFS an amount
equal to the Returnable Refund or Credit (including any
interest or addition thereon). Buyer shall deliver with payment
to MFS a copy of any written explanation of the facts
surrounding the Returnable Refund or Credit and a copy of any
related notice or statement received from any Tax Authority.
h. STRADDLE PERIOD TAXES.
i. Parent shall pay, or cause to be paid, all income, alternative
or add-on minimum tax, gross income, gross receipts, franchise,
profits, or other similar tax, assessment or charge other than
U.S. federal income tax or Combined State Tax ("Income Taxes")
imposed on Seller or the Controlled Subsidiaries for any
Straddle Tax Period. Upon timely notice from Buyer, MFS shall
pay to Buyer prior to the date any payment for Income Taxes as
described in this Section 15h is due to a Taxing Authority, an
amount equal to the excess of (A) the amount of Income Taxes
actually payable that relate to the Pre-Closing Tax Period
(determined as if the Straddle Tax Period had ended on March
31, 1998) over (B) the amount of estimated Income Taxes paid
prior to March 31, 1998 or otherwise accrued and recorded on
the Closing Balance Sheet with respect to Taxing Authorities
for which there is a Straddle Tax Period. In the event that the
amount determined under clause (B) of the preceding sentence
exceeds the amount determined under clause (A) of such
sentence, Parent shall pay the amount of such excess to MFS on
the date on which the applicable Return for such Straddle Tax
Period is filed. To the extent there is a refund or credit by a
Taxing Authority of any Income Taxes attributable to Income
Taxes of a Straddle Tax Period, such refund or credit shall be
for
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the account of the party that bears responsibility for such
Income Taxes pursuant to this Section 15h. Within 15 days of
receipt, each party shall cause any refund or credit to which
the other party is entitled under this Section 15h, but which
is received or credited to such party or any of such party's
Affiliates, at any time after the Closing Date, to be paid to
the other party in immediately available funds (or, if the
amount of the credit or refund is applied against any other
liability of the party, within 15 days of the date of notice of
such application).
ii. State and local real and personal property Taxes excluding any
interest, additions to Tax or penalties imposed with respect
thereto ("Property Taxes'), due and payable with respect to a
Straddle Tax Period (taking into account whether such Property
Taxes are payable in advance or in arrears), that are imposed
by any Taxing Authority with respect to the Retained Assets,
the stock of the Retained Subsidiaries or the assets and
properties of the Controlled Subsidiaries shall be apportioned
between (i) the period beginning on the first day of the
relevant Straddle Tax Period and ending on March 31, 1998 (the
"Pre-Closing Period"), and (ii) the period beginning on April
1, 1998 and ending on the last day of the relevant Straddle Tax
Period (the "Post Closing Period"). In performing such
apportionment, all Property Taxes shall be prorated on the
assumption that an equal amount of Property Tax applies to each
day of the relevant Straddle Tax Period, regardless of how
installment payments are billed or made. MFS shall be liable
for all Property Taxes apportioned to the Pre-Closing Period.
Parent shall be liable for all Property Taxes apportioned to
the Post-closing Period.
(1) Any supplemental Property Taxes relating to Post-Closing
Tax Periods which arise out of a revaluation of a property
or asset of Seller or a Controlled Subsidiary which would
not have occurred except for the change in ownership of
such property or asset pursuant to this Agreement shall be
borne by Parent.
(2) At the Closing, Parent shall pay to MFS the amount of any
Property Taxes for which Parent is liable under
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Section 15h(ii); provided, however, that the amount of any such
payment shall not exceed the amount of Property Taxes
apportioned to the Post-closing Period that have been paid to
the appropriate Taxing Authorities by MFS, Seller or their
respective Affiliates prior to March 31,1998. Parent shall pay,
and shall indemnify MFS and its Affiliates from and against,
all Property Taxes (including any interest, penalties or
additions to Tax imposed by any Taxing Authority as a result of
late payment) which become due and payable after March 31,
1998; provided, however, that MFS shall reimburse and indemnify
Buyer for the amount of any such Property Taxes (excluding any
interest, penalties or additions to Tax imposed by any Taxing
Authority as a result of late payment not attributable to
action or inaction of MFS) for which MFS is liable under
Section 15h(ii) (except to the extent such Property Taxes were
accrued and recorded on the Closing Balance Sheet) within 15
days after Buyer provides MFS with a copy of the final Property
Tax bill.
iii. Parent shall have full responsibility for and shall timely pay
to the appropriate Taxing Authorities all Trust Fund Taxes
reflected on the Closing Balance Sheet.
iv. Notwithstanding any other provision of this Agreement, Parent
shall have full responsibility for and shall timely pay to the
appropriate Taxing Authorities all accrued and recorded Tax
liabilities set forth on the Closing Balance Sheet.
i. TAX ADMINISTRATION. MFS shall prepare and file, or cause to be
prepared and filed, (i) all United States consolidated Federal Tax
returns of the MFS Group, (ii) all state or local Tax returns of MFS
or an Affiliate of MFS filed on a consolidated, combined or unitary
basis that include Seller and/or a Controlled Subsidiary and (iii) and
all separate Returns of Seller and the Controlled Subsidiaries that
are required to be filed on or before the Closing Date. Buyer shall
prepare and file (i) all separate Returns of Seller and the Controlled
Subsidiaries for Pre-Closing Tax Periods that are required to be filed
after the Closing Date
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and (ii) all Returns for Straddle Tax Periods that are due after the
Closing Date solely with respect to (A) Seller (or the Retained Assets
or the stock of the Retained Subsidiaries)) and/or (B) one or more of
the Controlled Subsidiaries. For any Return described in the preceding
sentence (other than Returns with respect to Trust Fund Taxes), Buyer
shall provide MFS with a pro forma Return not later than 30 days prior
to the due date (including all extensions thereto) for such Return.
Such pro forma Return shall be subject to MFS' approval before the
applicable Return is filed with any Taxing Authority. Buyer shall
provide MFS with a copy of all filed Returns (including Returns with
respect to Trust Fund Taxes) that Buyer is required to prepare and
file pursuant to this Section 15i.
j. CERTAIN DISPUTES. Disputes arising under this Section 15 and not
resolved by mutual agreement as stated herein shall be resolved by
Arthur Andersen (the "Accounting Referee"). The Accounting Referee
shall resolve any disputed items within 30 days of having the item
referred to it pursuant to such procedures as it may require. The
costs, fees and expenses of the Accounting Referee shall be borne
equally by Parent and MFS.
k. SURVIVAL. Notwithstanding anything in this Agreement to the contrary,
the provisions of this Section 15 shall survive for the full period
of all applicable underlying statutes of limitations (giving effect to
any waiver, mitigation or extension thereof).
16. POST-CLOSING.
a. INDIVIDUAL ACCOUNT PLANS. MFS shall retain all obligations and
liabilities for, and Buyer shall have no obligation or liability in
respect of, the MFS 401(k) Plan, the MFS 40l(a) Plan, and the MFS
Communications Company, Inc. Employee Stock Bonus Plan.
Notwithstanding the foregoing, during a transition period of six
months following the Closing Date or such shorter period that Parent
shall advise MFS in writing, MFS will continue to provide at Parent's
expense for employees of the NT Business the non-stock based health
and welfare insurance and other benefits that are provided to such
employees immediately prior to the Merger. No assets of either such
Plan shall be transferred to Buyer
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or its Affiliates or to any plan or arrangement sponsored or
maintained by Buyer or its Affiliates.
b. SHARING OF BENEFITS-RELATED INFORMATION. Parent and MFS will cooperate
in providing at their own expense employee-related and plan related
data to facilitate accomplishment of the provisions of this Agreement.
c. BOND FEE REFUNDS. In the event that WorldCom or Seller is refunded any
portion of a fee paid by it in connection with the issuance of the
Bonds by reason of such Bond being released and replaced with a bond
obtained by Parent it will promptly remit to Parent the amount so
refunded.
17. PARENT STOCK OPTION
a. GRANT AND EXERCISE PRICE. Parent hereby grants to MFS an option (the
"Option") to purchase 2,000,000 newly issued shares of Parent's common
stock (the "Parent Common Stock"). The Option may be exercised by MFS
in whole or in part and from time to time by delivery of a notice to
Parent complying with Section 18d during the period commencing with
the earlier to occur of the Merger or the termination of this
Agreement pursuant to Section 11 and continuing through 5:00 PM,
Eastern time, on the date six months following the first day of such
period. The Option may not be transferred other than to an affiliate
of MFS without Parent's written consent.
b. METHOD OF EXERCISE. At its election, MFS may exercise some or all of
the Option for a cash exercise price of $7.00 per share (subject to
adjustment for stock splits or combinations and similar events) and
may exercise some or all of the Option on a "cashless" basis pursuant
to which MFS receives shares of Parent Common Stock with a "market
value" equal to the aggregate "spread" for the shares as to which the
Option is being exercised; PROVIDED, that MFS shall exercise the
Option on a "cashless" basis rather than for cash to the extent
necessary to ensure that the actual number of shares of Parent Common
Stock issued to it shall not exceed 1,817,941, which is the maximum
number of shares of Parent Common Stock that Parent represents and
warrants may be issued by it to MFS without obtaining shareholder
approval under
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NASDAQ's shareholder approval policy. For such purposes, the" market
value" per share will equal the average of the closing "bid" and
"asked" prices for Parent's common stock as reported by NASDAQ over
the ten trading day period preceding the date of exercise and the
"spread" per share will equal the excess, if any, of the "market
value" over $7.00 (subject to adjustment for stock splits or
combinations and similar events).
c. REGISTRATION. Parent will promptly after the date of this Agreement
file with the Securities and Exchange Commission a registration
statement to register on a "shelf" basis the resale by MFS of any
shares of Parent Common Stock purchased by it pursuant to the Option
until they could be sold by MFS on an unrestricted basis under Rule
144 without regard to volume limitations (the "Registration Term").
Parent will use its best efforts to have such registration statement
declared effective by the SEC as promptly as possible and to maintain
the effectiveness of such registration statement throughout the
Registration Term.
d. BOARD REPRESENTATION. In the event that MFS exercises the Option in
whole or in part and whether for cash or on a "cashless" exercise
basis, it shall be entitled to designate Frederick W. Weidinger or, if
he shall be unable to serve, another individual reasonably acceptable
to Parent as a representative of MFS to serve on Parent's Board of
Directors for so long as MFS retains shares of Parent Common Stock
purchased pursuant to the Option aggregating at least 5% of Parent's
then-outstanding shares of Parent Common Stock.
18. MISCELLANEOUS. The parties agree as follows:
a. AMENDMENT. This Agreement may not be amended except by an instrument
in writing which refers to this Section and which is executed by all
Parties.
b. EXTENSION. During the Closing Period, either MFS (on the one hand) or
Parent (on the other hand), may extend the time for the performance of
any of the obligations or other acts of the other Party or waive
compliance with any of the agreements or conditions contained herein;
however, any such extension or waiver shall be valid only if set forth
in
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a written instrument which refers to this Section and is executed by
the waiving or extending Party.
c. TIME OF ESSENCE. Time is of the essence for purposes of this
Agreement.
d. NOTICES. All notices, deliveries and other communications hereunder to
Parties shall be in writing addressed to the Parties at the following
addresses, and shall be deemed delivered on the date of personal
delivery or on the third business day after being mailed by certified
mail, or on the next business day after delivery to a commercial
delivery overnight service as the case may be:
If to MFS: MFS Communications Company, Inc.
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Attention: Frederick W. Weidinger
with copies to: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022 and
Attention: Randall Doud, Esq., and
Fraser, Stryker, Vaughn, Meusey, Olson,
Boyer & Bloch, P.C.
500 Energy Plaza
409 South 17th Street
Omaha, Nebraska 68102
Attention: Robert M. Yates
If to Parent: Able Telcom Holding Corp.
1601 Forum Place, Suite 1110
West Palm Beach, Florida 33401
Attention: Gideon Taylor
with a copy to: Gunster, Yoakley, Valdes-Fauli
& Stewart, P.A.
Phillips Point
777 Flagler Dr., Suite 500 East
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West Palm Beach, Florida. 33401-6194
Attention: Michael V. Mitrione
e. COSTS. Each Party shall pay its own costs, none of which shall be
charged to, or paid by Seller, except that MFS and Parent shall share
equally the filing fee payable in connection with compliance with the
HSR Act.
f. CONFIDENTIALITY. The Parties hereby agree not to disclose, and to keep
confidential, the specific terms of this Agreement (including the
Merger Consideration), except as may be required by law or as may be
(but only to the extent) necessary to satisfy the Parent Conditions or
the MFS Conditions.
9. PRESS RELEASES. During the Closing Period, neither MFS nor Parent
shall issue any press release without the prior approval of the other,
which approval will not be unreasonably withheld.
h. OTHER PROVISIONS. This Agreement:
i. constitutes the entire agreement, and supersedes all other
prior written or oral agreements and understandings, between
the Parties respecting the Transaction, or otherwise respecting
the sale or acquisition of the Shares or Seller;
ii. is not intended to, and shall not, confer any benefits to any
Person which is not a signatory Party hereto;
iii. has been executed and delivered by all Parties in the State of
Delaware and the United States of America;
iv. shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Delaware
and the United States of America, without regard to the
principles of conflict of laws thereof, and
v. may only be enforced in the courts of the State of Delaware, or
the United States District Court for the District of Delaware,
the
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<PAGE>
jurisdiction of which courts each Party hereby irrevocably
subjects itself to.
i. HEADINGS AND EXHIBITS. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All exhibits attached to
this Agreement are by this reference incorporated in this Agreement.
j. COUNTERPARTS. This Agreement may be executed in counterparts which
together shall constitute a single agreement. In addition, this
Agreement may be executed by facsimile signature which, when so
delivered, shall immediately be followed by overnight delivery of
the original signature.
k. FURTHER ASSURANCES. From time to time after the Closing Date, each
Party shall, at the request of the other Party, execute and deliver
such additional conveyances, transfers and other assurances as may be
reasonably required to effect the merger of Seller with and into Buyer
and carry out the intent of this Agreement.
l. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective
successors and permitted assigns.
m. SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the remaining terms and
provision here of or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
If the final judgment of a court of competent jurisdiction declares
that any term or provision hereof is invalid or unenforceable, the
Parties agree that the court making the termination of invalidity or
unenforceability shall have the power to reduce the scope, duration,
or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provisions with a
term or provisions that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so
modified after the expiration of the time within which the judgment
may be appealed.
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n. ENFORCEMENT COSTS. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any
provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees,
court costs and all expenses if not taxable as court costs (including,
without limitation, all such fees, costs and expenses incident to
appeals), incurred in that action or proceeding, in addition to any
other relief to which such party or parties may be entitled.
o. POSSIBLE STRUCTURE CHANGE. Parent and Buyer agree that, if MFS
proposes to alter the Transaction from the Merger to a transfer of
assets and liabilities from Seller to Parent or a subsidiary of
Parent, Parent will cooperate with MFS in negotiating the necessary
amendments to this Agreement to accomplish such proposal consistent
with the requirement that the Transaction as altered does not
materially alter to the detriment of Parent the benefits and costs of
the Transaction as provided for in this Agreement as executed.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
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MFS Network Technologies, Inc. MSF Acquisition Corp.
By:/s/ JOHN SIDGMONE By: /s/ FRAIZER L. GAINES
---------------------------- -------------------------
Name: John Sidgmone Name: Fraizer L. Gaines
-------------------------- -----------------------
Title: Chief Operations Officer Title: President
------------------------- ----------------------
MFS Communications Company, Inc. Able Telcom Holding Corp.
By:/s/ JOHN SIDGMONE By: /s/ GIDEON TAYLOR
---------------------------- -------------------------
Name: John Sidgmone Name: Gideon Taylor
-------------------------- -----------------------
Title: Chief Operations Officer Title: Chairman
------------------------- ----------------------
<PAGE>
LIST OF OMITTED SCHEDULES
-------------------------
EXHIBIT EXHIBIT TITLE
------- -------------
1d ASSUMPTION AND INDEMNITY AGREEMENT
A MFS NETWORK TECHNOLOGIES,INC.
FORECASTED PERFORMANCE/PAYMENT BOND BACKLOG
B GENERAL AGREEMENT OF INDEMNITY AND FOR SECURITY
C AGREEMENT OF INDEMNITY
D CONTINUING AGREEMENT OF INDEMNITY-CONTRACTOR'S FORM
E4 MASTER SURETY AGREEMENT
F GUARANTY AGREEMENT
1ac LICENSE AGREEMENT
SCHEDULE A LICENSED TRADEMARKS
G LABOR POLICIES
H SUBCONTRACT TERMS & CONDITIONS
I PROFESSIONAL SERVICES AGREEMENT
J NT INVOICE
1AR ACTION TAKEN BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS
ANNEX A PLAN OF COMPLETE LIQUIDATION OF MFS NETWORK
TECHNOLOGIES,INC.
ANNEX B TRANSFER AGREEMENT
1as MFS NETWORK TECHNOLOGIES,INC.
PROFORMA BALANCE SHEET
1ax STOCK PLEDGE AGREEMENT
6h LITIGATION
6k NETWORK TECHNOLOGIES DUE DILIGENCE
6n OPEN "ENGINEER,PROCURE, AND CONSTRUCTION"
CONTRACTS BETWEEN MFSNT AND MFS/WNS
6p NUMBER OF SHARES
7d ATTORNEY'S LETTER
15b-2 MFS NETWORK TECHNOLOGIES,INC. AND SUBSIDIARIES
STATE INCOME/FRANCHISE TAX FILING REQUIREMENTS
ESCROW AGREEMENT
THE COMPANY WILL PROVIDE COPIES OF ANY OMITTED EXHIBIT(S) TO THE COMMISSION
UPON REQUEST FROM THE COMMISSION FOR SAID EXHIBIT(S).
<PAGE>
EXHIBIT lae
MASTER SERVICES AGREEMENT
BY AND BETWEEN
WORLDCOM NETWORK SERVICES, INC.
AND
MFS NETWORK TECHNOLOGIES, INC.
CONTRACT NO. C-6734
CONFIDENTIAL
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1. TERM ........................................................... 6
1.1 Term .................................................................. 6
1.2 Termination ........................................................... 6
1.3 Contact Year .......................................................... 6
ARTICLE 2. CONTRACTOR SERVICES ............................................ 6
2.1 Work .................................................................. 6
2.2 Work Orders ........................................................... 8
2.3 Other Work ............................................................ 9
2.4 Refusal of Work ....................................................... 10
ARTICLE 3. PERFORMANCE OF WORK ............................................ 11
3.1 Contractor's Forces ................................................... 11
3.2 Subcontractors ........................................................ 12
3.3 Contract Documents .................................................... 13
3.4 Materials ............................................................. 14
3.5 Permits and Fees ...................................................... 16
3.6 Progress and Procedure ................................................ 16
3.7 Changes ............................................................... 20
3.8 Commencement and Completion of Work ................................... 21
3.9 As-Built Drawings ..................................................... 22
3.10 Specifications and Standards ......................................... 22
3.11 Lien Waivers ......................................................... 23
3.12 Timing/Delays ........................................................ 23
3.13 Corrective Action Plan ............................................... 24
ARTICLE 4. PAYMENT AND COSTS ............................................ 24
4.1 Payment ............................................................... 24
4.2 Cost Control .......................................................... 30
4.3 Most Favored Nation ................................................... 30
4.4 Independent Contractor ................................................ 30
4.5 Accounting System ..................................................... 32
4.6 Progress Payment ...................................................... 33
4.7 Late Payment .......................................................... 34
4.8 Annual and Aggregate Project Sum ...................................... 35
4.9 Commitment Fulfilled .................................................. 35
4.10 Contractor's Fee Trueup .............................................. 36
CONFIDENTIAL
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ARTICLE 5. OWNER'S RESPONSIBILITIES ....................................... 37
5.1 Authorized Representative ............................................. 37
5.2 Provision of Data ..................................................... 37
5.3 Owner's Own Forces .................................................... 37
5.4 Prompt Reply .......................................................... 38
5.5 Failure to Provide Information ........................................ 38
ARTICLE 6. OWNER'S AND CONTRACTOR'S REPRESENTATIONS ....................... 38
6.1 Contractor Representations and Covenants .............................. 38
6.2 Owner Representations and Covenants ................................... 39
ARTICLE 7. INSURANCE AND BONDS ............................................ 39
7.1 Worker's Compensation and Employer's Liability ........................ 40
7.2 Builder's Risk ........................................................ 42
7.3 Errors and Omissions .................................................. 43
7.4 Railroad Protective ................................................... 43
7.5 Insurance Required of Subcontractors .................................. 43
7.6 Additional Insured .................................................... 44
7.7 Evidence of Coverage .................................................. 44
7.8 Bonds ................................................................. 45
ARTICLE 8. DEFAULT AND TERMINATION ........................................ 46
8.1 Default ............................................................... 46
8.2 Dispute Resolution/Arbitration ........................................ 49
ARTICLE 9. INDEMNIFICATION AND LIABILITY .................................. 51
9.1 Indemnification by Contractor ......................................... 51
9.2 Indemnification by Owner .............................................. 52
9.3 Notice of Claims ...................................................... 52
9.4 Limitation of Liability ............................................... 53
ARTICLE 10. WARRANTY ..................................................... 53
10.1 Warranty ............................................................. 53
10.2 Free From Defects .................................................... 54
10.3 No Other Warranties .................................................. 54
CONFIDENTIAL
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ARTICLE 11. HAZARDOUS MATERIALS AND CONCEALED
CONDITIONS .................................................... 54
11.1 Hazardous Materials .................................................. 54
11.2 Concealed Conditions ................................................. 55
ARTICLE 12. MISCELLANEOUS ................................................. 56
12.1 Title ................................................................ 56
12.2 Assignment ........................................................... 56
12.3 Severability ......................................................... 56
12.4 Waiver ............................................................... 56
12.5 Notices .............................................................. 56
12.6 Confidentiality ...................................................... 58
12.7 Counterparts ......................................................... 59
12.8 No Construction Against Drafter ...................................... 59
12.9 Course of Dealing .................................................... 60
12.10 Survival ............................................................ 60
12.11 Governing Law; Exclusive Jurisdiction ............................... 60
12.12 Entire Agreement .................................................... 60
EXHIBITS
EXHIBIT A - Current Projects .................................... A-1
EXHIBIT B - Work Orders ......................................... B-1
EXHIBIT C - Agreements for Other Work ........................... C-1
EXHIBIT D - Engineering Services Rate Schedule .................. D-1
EXHIBIT E - Change Order Form ................................... E-1
EXHIBIT F - Certificate Of Completion ........................... F-1
EXHIBIT G - Contractor's Labor Policies ......................... G-1
EXHIBIT H - Subcontract Terms & Conditions ...................... H-1
CONFIDENTIAL
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EXHIBIT I - Professional Services Agreement ..................... I-1
EXHIBIT J - Invoice Form ........................................ J-2
CONFIDENTIAL
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<PAGE>
MASTER SERVICES AGREEMENT
Contract No. C-6734
THIS MASTER SERVICES AGREEMENT ("Agreement") is made as of this
_____________ day of_________________, 1998 by and between WORLDCOM NETWORK
SERVICES, INC., a Delaware, corporation with offices at 6929 N. Lakewood Avenue,
Tulsa, Oklahoma, 74117, including its affiliates and subsidiaries as appropriate
throughout (collectively referred to herein as "OWNER") and MFS NETWORK
TECHNOLOGIES, INC., A Delaware corporation with offices at 1200 Landmark Center,
Suite 1300, OMAHA, NE 68102, hereinafter called the "Contractor."
WITNESSETH:
WHEREAS, The Owner is engaged in the business of providing
telecommunications services and intends to obtain services for the design,
engineering, procurement, construction, operation, maintenance, relocation and
replacement of various telecommunications network projects within the United
States (each, a "Project", together, "Projects"); and
WHEREAS, Contractor is engaged in the business of providing design,
engineering, procurement, construction, maintenance, relocation and replacement
of telecommunications facilities and desires to design, engineer, procure,
construct, maintain, relocate and replace certain of the Owner's Projects; and
WHEREAS, Owner desires Contractor to perform such work as is deemed
necessary by Owner to design, engineer, procure, construct, maintain, relocate
and/or replace each Project as the same shall be agreed by and between Owner and
Contractor; and
WHEREAS, Owner and Contractor desire to establish the general terms and
conditions under which each Project will be performed and to establish the
responsibilities of each party hereto for each Project; and
CONFIDENTIAL
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<PAGE>
WHEREAS, Owner desires to engage Contractor for an agreed term and
commitment for Projects as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and other
considerations contained herein, the parties hereto agree as follows:
ARTICLE 1. TERM
1.1 TERM. The term of this Agreement shall be for a period of five (5)
years effective on the date of execution hereof (hereinafter the "Term").
1.2 TERMINATION. This Agreement may be terminated at any time upon the
mutual written agreement of the parties. This Agreement may also be terminated
pursuant to Article 8.
1.3 CONTRACT YEAR. A "Contract Year" shall be any twelve month period
beginning on the date of execution of the Agreement as first written above or
any anniversary date thereof.
ARTICLE 2. CONTRACTOR SERVICES
2.1 WORK. The Contractor agrees to provide, as required by Owner, all the
labor, equipment, materials and expertise and to do all things necessary for the
proper performance and completion of each Project (the "Work"). The Work, may,
as required by Owner include, but is, not limited to, Local Network Projects,
Long Haul Projects, Engineering Services and Other Work all as hereinafter
defined.
2.1.1 LOCAL NETWORK PROJECTS. Local Network Projects may, as required
by Owner, include but are not limited to, design, engineering, project
management, material procurement, inspection, acceptance testing and
construction of local telecommunications network infrastructure which may
consist of both inside and outside plant work, and initial building laterals to
provide intracity or intraexchange telecommunications service to customers
CONFIDENTIAL
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<PAGE>
within a local loop (hereinafter referred to as "Local Network Projects"). Local
Network Projects do not include construction of isolated laterals or points of
presence ("POPs").
2.1.2 LONG HAUL PROJECTS, may, as required by Owner, include but are not
limited to, design, engineering, project management, material procurement,
inspection, acceptance testing and construction of long distance
telecommunications networks which may consist of both inside and outside plant
work, terminal and regen/amplifier facility construction or expansion to provide
intercity, interexchange or interLATA telecommunications services (hereinafter
referred to as "Long Haul Projects").
2.1.3 ENGINEERING SERVICES. Engineering Services may, as required by Owner,
include but are not limited to, the design, engineering and procurement of
transmission facilities, spaces, nodes and central office equipment related to
Local Network Projects and other special engineering projects or research.
Central office equipment includes, but is not limited to, optical-electric
equipment, cross connect systems, voice and data switching systems, DC power
systems, cabling, racking and ancillary equipment ("Central Office Equipment").
Due to the unique nature of such Engineering Services, Owner and Contractor
agree that such services shall be performed at the actual direct salary, subject
to adjustments as set forth in Article 4, plus the labor burden factor set forth
in Exhibit D attached hereto and incorporated herein which shall include
applicable overhead and benefits. The parties agree that Contractor may, not
more often than annually, update the labor burden factor for Engineering
Services based upon changes in Contractor's actual costs for providing such
services, provided that Owner is given written notice and a written
justification of any change in such labor burden factor. The charges for
CONFIDENTIAL
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<PAGE>
Engineering Services set forth herein shall be considered Reimbursable Costs as
defined in Article 4 hereof.
2.1.4 CURRENT PROJECTS. Owner and. Contractor agree that all work or
projects being performed under a contract between Contractor and Owner as of the
date of this Agreement which work has been performed after the execution date of
this Agreement, including but not limited to those Projects set forth in Exhibit
A, shall be treated in accordance with the terms and conditions of this
Agreement. The parties agree That any commitments concerning volume of work or
annual payments in any such contracts shall immediately become void and of no
effect due to the Annual Project Sum and Aggregate Project Sum commitments
contained in Article 4 hereof.
2.2 WORK ORDERS. The Work shall be set forth in a detailed Work Order
(each, "Work Order" or, together "Work Orders"), for each individual Local
Network Project, Long Haul Project, or Engineering Services Project executed by
Owner (or Owner's affiliate or subsidiary as appropriate) and Contractor. Where
appropriate, Owner and Contractor will enter into a Work Order to develop a
description of Work to be performed, Project Staffing Plan, Project Budget and
Project Schedule for Project development. No Work Order shall be effective nor
shall Owner or Contractor incur any liability hereunder unless the Work Order is
executed by duly authorized representatives of each party hereto.
2.2.1 Each Work Order shall be substantially in the form of and shall
contain the information contained in the Sample Work Order attached hereto as
Exhibit B. At a minimum, each Work Order shall contain the Project name,
description of the Work to be performed, Project Staffing Plan (as hereafter
defined), Project budget, Project schedules and a list of work
CONFIDENTIAL
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to be subcontracted. Upon execution of a Work Order it shall become a part of
and shall be governed by this Agreement. Each Work Order shall be labeled so
that, for example, the first executed Work Order may be Work Order No.
C-6734.001, the second Work Order shall be Work Order No. C-6734.002 and so on.
2.3 OTHER WORK. In addition to Local Network Projects, Long Haul Projects
and Engineering Services, Owner may enter into agreements with Contractor to
provide, among other things, all the labor, equipment, materials and expertise
and to do all things necessary for the proper performance and completion of
other Projects. Such other Projects may include but are not limited to the
engineering, procurement or construction of telecommunications networks or
facilities or services required for the maintenance, expansion or operation of
either Local Network Projects or Long Haul Projects or other Projects not
specifically defined in this Agreement, hereinafter collectively referred to as
"Other Work." The Contractor may from time to time bring projects to the
attention of Owner whereby Contractor acting on behalf of a third party
right-of-way or facility owner is offering for sale or lease telecommunications
facilities. Should Owner elect to enter into an agreement with Contractor for
such facilities such agreement shall not he subject to this agreement.
2.3.1 The details for all Other Work shall be set forth in an agreement
which shall be executed by Owner (or Owner's affiliate or subsidiary as
appropriate) and Contractor. No agreement for Other Work shall be effective nor
shall Owner or Contractor incur any liability hereunder unless the agreement is
executed by duly authorized representatives of each party hereto.
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2.3.2 Each agreement for Other Work shall become a part of and shall be
governed by this Agreement unless expressly stated in such agreement for Other
Work. In the event of a conflict between this Agreement and an agreement for
Other Work, the agreement for Other Work shall prevail. Notwithstanding the
foregoing, all payments made or due by Owner to Contractor pursuant to an
agreement for Other Work without regard to the terms of such agreement for Other
Work, shall become part of the Aggregate Project Sum as defined in Article 4.
Each agreement for Other Work shall be labeled in the same manner as Work
Orders.
2.3.3 Owner agrees that Contractor shall have the opportunity to bid on
all Local or Long Haul Projects not assigned to Contractor via a Work Order and
offered by Owner for bidding during the Term.
2.4 REFUSAL OF WORK.
2.4.1 During each Contract Year, Contractor shall accept and execute
all Work Orders offered to Contractor by Owner hereunder without regard to
quantity, schedule or cost throughout the Term until such time as the Annual
Project Sum reaches One-hundred Thirty Million Dollars ($130,000,000.00). If
Contractor refuses or fails to accept any Work Order prior to such time, the
value of the Work Order (including the applicable Contractor's Fee) shall be
added as a credit to the Aggregate Project Sum as if such Work Order had been
accepted and performed by Contractor pursuant to the terms of this Agreement.
For the purpose of determining whether such a credit is due, the Annual Project
Sum shall be as calculated at the time Contractor declines such Work Order.
2.4.2 The Owner agrees to award Contractor a minimum volume of
seventy-five percent (75%) of all outside plant work related to Owner's Local
Network Projects.
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2.4.3 In the event the Annual Project Sum for all Work Orders and
agreements for Other Work reaches One Hundred Thirty Million Dollars
($l30,000,000.00) in any year of the Term and Owner offers a Long Haul Project,
Engineering Services or Other Work to Contractor, Contractor may decline to
accept such additional Work, without penalty.
ARTICLE 3. PERFORMANCE OF WORK
3.1 CONTRACTOR'S FORCES. The Contractor shall perform project management,
supervisory functions, contract and document preparation, drafting, material
procurement, and all portions of the Work which are similar to those stated
herein with its own employees except as mutually agreed by Owner and Contractor.
3.1.1 Owner and Contractor acknowledge that as part of the
consideration given by Owner to Contractor hereunder, Owner is relying on and
expects to continue to rely upon the high level of experience, skill and
expertise existing in the personnel currently in Contractor's employ.
Contractor shall staff Key Positions only with qualified persons with prior
experience in the position to be filled. For purposes of this Agreement, "Key
Positions" are defined as Project Manager, Construction Manager, Business
Manager and Contract Manager. However, Contractor may propose and Owner may
reasonably approve the use of individuals having no prior experience in a Key
Position.
3.1.2 Contractor agrees to provide Owner with a detailed plan for the
staffing of each Project (hereinafter the "Project Staffing Plan") as part of
each Work Order. Each Project Staffing Plan shall identify the individuals who
will fill Key Positions and other positions which will be required for the
Project. Contractor shall provide Owner with relevant employee information upon
request. Contractor shall follow Owner's reasonable recommendations
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concerning the Project Staffing Plan for each Work Order. All unscheduled or
voluntary changes by Contractor in the staffing of Key Positions or other
Contractor employees on a Project shall be subject to the prior written approval
of Owner, which shall not be unreasonably withheld.
3.1.3 Owner shall have the right to request in writing that
Contractor remove any of its employees from any Project at any time provided
such request is reasonable, lawful and nondiscriminatory. Contractor shall
comply with such request immediately upon receipt of the written request from
Owner.
3.2 SUBCONTRACTORS. Unless specifically permitted in a Work Order or
agreement for Other Work, Owner and Contractor agree that Contractor shall
perform all actual construction for all Projects and Work performed hereunder
with unaffiliated third party contractors hereinafter referred to as
"Subcontractors".
3.2.1 As part of the Work performed under a Work Order or
agreement for Other Work, the Contractor shall develop, a list of qualified
bidders for each Project and establish bidding schedules. The Owner shall, upon
written notice to Contractor, have the right, in its sole discretion, to review,
approve, disapprove, add to or delete from the list of bidders. Unless otherwise
stated in a Work Order or agreement for Other Work, the Contractor shall obtain
competitive bids from a minimum of three (3) bidders for each phase or portion
of work for a Project or obtain a written waiver of this requirement before
proceeding with less than three bids.
3.2.2 Upon the prior written request of Owner, Owner shall have
the option to pre-approve all bidding documents, addenda and other documents
related to the bidding process at any time prior to Contractor's award of a
subcontract.
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3.2.3 The Contractor shall prepare a bid evaluation analyzing all
bids received for a Project and shall notify Owner regarding selection of the
successful bidder. The Contractor shall award the work to be subcontracted to
the lowest priced, qualified, responsive bidder unless written approval is
obtained from Owner approving an award on some other basis. The Owner shall have
the right, upon prior written notice to Contractor, to determine the successful
bidder for any Work subcontracted hereunder. In no event shall Contractor award
a contract to a bidder which exceeds the limits set forth in Section 3.7.1
unless approved in writing by Owner.
3.3 CONTRACT DOCUMENTS. The Contractor shall prepare all Subcontractor
related contracts for the Work (the "Contract Documents"). All Contract
Documents shall conform to all laws and requirements of any right-of-way
providers, permitting authorities and other requirements of the Work Order or
agreement for Other Work.
3.3.1 All Contract Documents shall include terms and conditions
attached hereto as Exhibit I (for Subcontractors) and Exhibit J (for
professional services). The content of such Contract Documents shall comply with
generally accepted industry standards. In no event shall any Contract Document
including but no limited to agreements with Subcontractors, expose Owner to any
premium payment for early completion of a Project by Subcontractor, costs for
Subcontractor errors, liquidated damages or other penalty payments of any kinds
without the prior written consent of Owner which may be withheld by Owner in its
sole discretion.
3.3.2 The Contractor shall report to Owner any error,
inconsistency or omission in the Contract Documents which may have a material
impact on any Project immediately upon discovery thereof.
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3.3.3 Upon written notice to Contractor by Owner prior to
execution of the Contract Documents, Owner shall have the right to approve any
and all Contract Documents. Contractor shall provide Owner with copies of the
documents upon such request and, Owner shall have five (5) business days from
receipt thereof to approve or disapprove said documents. Unless Owner gives
Contractor written notice to the contrary, failure of Owner to approve or
disapprove the Contract Documents within such five day period shall be deemed
approval. Owner shall not be responsible for the completeness, accuracy or
context of the Contract Documents except where such completeness, accuracy or
context is affected by changes to Contract documents directed, dictated or
otherwise made by Owner. Contractor shall use commercially reasonable efforts to
ensure that all disputes concerning errors, inconsistencies or omissions in the
Contract Documents shall be resolved in favor of Owner.
3.3.4 The Contractor shall maintain copies of all Contract
Documents at the site of each Project in good order and marked reasonably
current to record all changes made during the Work.
3.4 MATERIALS. The Contractor will buy on a competitive-bid basis from
the lowest priced, qualified, responsible provider, in accordance with the same
bidding procedure outlined in Section 3.2 hereof, all major items of
construction materials necessary for the Work. All anticipated purchases,
rentals or other contracts for material shall be described in the applicable
Work Order or agreement for Other Work and included in the appropriate budget
for each. Contractor its Subcontractors will only purchase and install materials
which conform to Owner's specifications which will be included in the Work
Order. For purposes of economy, Contractor may enter into volume purchase
agreements to purchase major material items, such as fiber optic
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cable, conduit, manholes, handholes, duct and innerduct, to be used in multiple
projects provided that such volume purchase agreements are competitively bid at
reasonable intervals during the Term but in no event less than every 18 months.
Any material deviation from Owner's specifications included in the Work Order
must be approved in writing by Owner.
3.4.1 Notwithstanding anything herein to the contrary, including
but not limited to Article 4 hereof, Contractor shall order major material items
limited to fiber optic cable, manholes, duct, innerduct, handholes, and conduit
only as described in and budgeted for in an applicable Work Order or agreement
for Other Work. Contractor shall count all quantities toward its own volume
purchasing agreements with suppliers as appropriate. Contractor shall reimburse
to Owner as a credit, any such volume discounts received by Contractor after
billing. Owner shall receive all supplier warranties and guarantees.
3.4.2 Owner hereby reserves the right to purchase or provide any
and all materials necessary for the Work if deemed necessary by Owner due to its
tax status, availability of surplus material already owned, ordered, or
purchased by Owner or the Contractor's inability to secure the materials by the
stated due date.
3.4.3 All materials purchases made hereunder, including payments
of Contractor's Fees shall be credited to the Aggregate Project Sum as defined
in Article 4. Notwithstanding the foregoing, the Contractor's fee shall be
reduced from 12% to 6% only for circumstances where the Owner reserves the right
to purchase material pursuant Subsection 3.4.2 above. This reduction in
Contractor's fee shall not apply anywhere else in this Agreement. Further,
materials moved from one Project to another Project will not be subject to a
second Contractor's Fee.
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3.4.4 Contractor shall properly inspect, receive and handle any
materials ordered pursuant to this Article. For Engineering Services Central
Office Equipment projects, Contractor will be responsible for all material
handling and inventory control, will use off-site facilities for warehousing
services prior to the installation start date as designated by Owner; and will
minimize the amount of materials stored on site during the implementation of the
Project.
3.5 PERMITS AND FEES. As required by Owner and specified in the Work
Order, the Contractor shall secure on Owner's behalf and the Owner shall pay
for, as Reimbursable Costs, all permits and governmental fees, licenses and
inspections necessary for the proper execution and completion of the Work which
are customarily secured after execution of the Work Order and which are legally
required.
3.5.1 Where the local law at the site of the building requires a
Certificate or Statement of Occupancy the Contractor shall obtain and pay for
this Certificate and deliver it to the Owner. Any costs for this Certificate
shall be treated as a Reimbursable Cost pursuant to Article 4 hereof.
3.5.2 Contractor shall not enter into or accept any license
agreement, joint-use agreement, ordinance, resolution, franchise, or other
agreement for the use of public or private right-of-way with any federal, state,
local, public or private entity for any Project without the written approval of
Owner it being agreed that Owner or its duly authorized representation shall
execute any such agreements. Contractor shall immediately notify Owner if, or
when, it discovers any such agreement is required.
3.6 PROGRESS AND PROCEDURE. The Contractor shall, unless otherwise
stated in a Work Order or agreement for Other Work, follow these procedures;
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3.6.1 The Contractor shall maintain current estimates or costs and
progress schedules. The Contractor shall furnish information regarding
availability of materials, when requested by the Owner, and furnish any
information to the Owner to assist in arriving at the most economical
construction.
3.6.2 The Contractor shall provide administrative, management, and
related services to coordinate scheduled activities and responsibilities of the
Subcontractors with each other and with those of the Contractor, owner, or
others involved in the Project to use commercially reasonable efforts to manage
each Project in accordance with the approved estimate for costs, the Project
schedule and the Contract Documents.
3.6.3 Utilizing the Project Schedule, the Contractor shall update
all schedules incorporating the activities of the Subcontractors and others on
the Project including activity sequences and durations, allocation of labor and
materials, processing of shop drawings, product data and samples, and delivery
of materials or equipment requiring long lead time and procurement. The Project
Schedule shall include the Owner's requirements and responsibilities showing
portions of the Project having priority. The Contractor shall update and reissue
each Project Schedule as required by Owner to show current conditions and
percentages of completion. The Contractor shall keep a daily log containing a
record of weather, each Subcontractor on the site, number of workers,
identification of equipment, Work accomplished, problems encountered, and other
similar relevant data as the Owner may require. If an update indicates that the
previously approved Project Schedule may not be met, the Contractor shall
immediately notify Owner and recommend corrective action. The Contractor shall
schedule and
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conduct meetings to discuss such matters as progress and scheduling with Owner
as set forth in the Work Order or as requested by Owner.
3.6.4 Consistent with the various bidding documents, Contract
Documents and utilizing information from the Subcontractors, the Contractor
shall coordinate the sequence of construction and assignment of space in areas
where the Subcontractors are performing work.
3.6.4.1 The Contractor shall at all times enforce strict
discipline and good order among its employees and shall not employ on any
Project any person not skilled in the task assigned to him or her. The
Contractor shall be responsible to maintain and observe and to require its
Subcontractors to maintain and observe, sound labor and safety practices and
shall require each Subcontractor to take all steps reasonably necessary to avoid
labor disputes or work stoppages. For Engineering Services Central Office
Equipment projects, Contractor agrees to use personnel and Subcontractors who
have been certified in certain high skill procedures under Owner's mandatory
training program. The expense of obtaining such certification is to be paid by
the Subcontractor for Subcontractor's forces and as a Reimbursable Cost for
Contractor's personnel. Owner shall make such training available at a nominal
cost.
3.6.4.2 The Contractor shall coordinate and supervise the
work performed by Subcontractors to the end that the work is carried out without
conflict between trades or jurisdictional disputes and so that no Subcontractor,
at any time, causes delay to the general progress of a Project. The Contractor
and all Subcontractors shall at all times afford each other Subcontractor, any
separate (Sub)contractor, and the Owner, every reasonable opportunity for the
installation of work and the storage of materials, and shall provide access to
and the use of necessary loading dock and hoist facilities, adequate storage
room and necessary utilities and
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other services. Wherever the work of a Subcontractor is dependent upon the work
of other Subcontractors, the Contractor shall require the Subcontractor to:
(a) coordinate his work with the dependent work;
(b) provide necessary dependent data and requirements;
(c) supply and/or install items to be built into dependent
work of others;
(d) make provisions for dependent work of others;
(e) examine dependent drawings and specifications;
(f) examine previously placed dependent work;
(g) check and verify dependent dimensions of previously
placed work;
(h) notify Contractor of previously placed dependent work or
dependent dimensions which are unsatisfactory or will prevent a satisfactory
installation of this Work; and
(i) not proceed with this Work until the unsatisfactory
dependent condition has been corrected.
3.6.4.3 The Contractor shall develop and implement
procedures for the review and processing of applications by Subcontractor for
progress and final payments.
3.6.4.4 Based on the Contractor's observations and
evaluations of each Subcontractor's application for payment, the Contractor
shall review, certify and pay the amounts due the respective Subcontractor.
3.6.5 The Contractor shall manage the performance of each of the
Subcontractors with all due diligence to ensure that the requirements of the
Contract Documents
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are met. The Contractor shall take appropriate action against Subcontractor(s)
when requirements of a Contract Document are not being fulfilled and shall take
commercially reasonable steps to assure compliance with the Contract Documents.
3.7 CHANGES. The Owner may, at any time, by written change order
("Change Order"), make changes in the drawings, specifications, schedule or
other aspects of a Project. The Contractor may also, through the course of
performance of Work, recommend changes to the design, schedule or budget for any
Project for approval by Owner. Contractor will utilize commercially reasonable
efforts to minimize the effect on costs and schedules in accommodating such
change. The purpose of a Change Order is to provide control in changes in Work,
Project configuration, budget and/or schedules on a formal basis. No changes
shall be made to any Project without an appropriate Change Order. All Change
Orders shall be in the form attached hereto as Exhibit E and executed by both
parties. The time and schedule for completion of the Project affected shall be
extended as reasonably required to complete the Work so changed. If the changes
desired change the Work contemplated including, but not limited to: (a) changes
in, substitutions for, additions to or deletions of any Work; (b) changes in the
specifications or drawings, (c) changes in the schedule or acceleration,
deceleration or suspension of performance of any Work; and (d) substantial
changes in the location, alignment, dimensions or design of items in the Work
and/or if the Owner requests the Contractor to perform added Work outside the
scope of such Project, then, prior to the performance of such additional Work an
equitable adjustment in the Project Schedule, Project Budget and Project
Staffing Plan will be negotiated by the parties for such Work and included in
the applicable Change Order.
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3.7.1 In the event the estimated costs of a Work Order or
agreement for Other Work exceed or are likely to exceed the total budget for the
Project or One Hundred Ten percent (110%) of the budget for any individual
budget line item, the Contractor will promptly notify Owner of such condition so
the appropriate action can be taken by Owner in response to the variance.
3.8 COMMENCEMENT AND COMPLETION OF WORK. The Contractor shall commence
Work on the commencement date reasonably set by Owner in the Work Order and
shall complete the Work and turn the Project over to the Owner (after final
inspection and testing) ready for acceptance by Owner no later than the date
specified for completion in the applicable Work Order, except as this date may
be changed pursuant to a Change Order or to delays beyond the reasonable control
of Contractor.
3.8.1 FINAL INSPECTION, TESTING AND ACCEPTANCE:
3.8.1.1 FINAL INSPECTION AND TESTING. Upon completion of
construction of any Project hereunder, Contractor shall conduct acceptance
testing, in accordance with the requirements of the Work Order, to demonstrate
that the Work has been performed in accordance with the specification of the
Work Order, including a review of all Contract Documents, drawings,
specifications and other related documents. Owner reserves the right to attend
and observe all final inspections and testing. After completion of acceptance
testing, Contractor shall forward to Owner one copy of all test results for
approval.
3.8.1.2 Upon completion of all Project requirements,
Contractor shall provide Owner with a Certificate of Completion that signifies
the Project is completed and shall assist the Owner with the final inspection of
the Project. Once the Owner has completed the final
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inspection and accepted the test results and as-builts, Owner shall signify its
final acceptance of the Project by approving a Certificate of Completion in the
form attached hereto as Exhibit F.
3.8.1.3 The Certificate of Completion shall identify all
currently known and outstanding liabilities, charges, claims made by
Subcontractors and potential financial obligations that have not been resolved
at the time of final completion.
3.8.1.4 Notwithstanding anything to the contrary in this
Agreement, acceptance of any Work performed by Contractor for Owner hereunder
shall not affect the warranties set forth in Section 10 hereof.
3.9 AS-BUILT DRAWINGS. Drawings showing all facilities and elements as
built by Contractor for Owner for a Project ("As-Builts") shall meet Owner
specifications as set forth in the Work Order and shall be prepared in a
computerized format acceptable to Owner. Contractor shall turn over within 30
calendar days after completion of testing, two (2) hard copies and one (1) soft
electronic copy of the entire set of As-Builts for each Project. For a period of
three (3) years after Notice of Acceptance, Contractor will also maintain a full
set of As-Builts in both hard copy and soft electronic copy in its files for
each Project. Final acceptance of any Project shall be subject to Owner's
acceptance of As-Builts from Contractor.
3.10 SPECIFICATIONS AND STANDARDS. All Work for any Work Order or
agreement for Other Work performed hereunder shall be performed in addition to
all requirements and specifications set forth in the Work Order or agreement for
Other Work, in accordance with the requirements and specifications of the
National Electric Code, the National Electric Safety Code (both as they
currently exist or are amended) and any other requirements imposed by any
governmental authority or agency having jurisdiction.
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3.11 LIEN WAIVERS. Unless otherwise prohibited by Law, Contractor will
waive all rights to place any lien and will require all Subcontractors to waive
all rights to place any lien against the equipment, materials, or other property
used in a Project and shall provide a written statement in the Contract
Documents evidencing such waivers to Owner prior to the commencement of any Work
hereunder. Any failure by Contractor to secure such waivers which are not
otherwise prohibited by law, without the written consent of Owner shall be
promptly corrected at Contractor's expense. Contractor may, at its option,
correct by bonding over its failure to receive such waivers.
3.12 TIMING/DELAYS.
3.12.1 Time shall be of the essence for Owner and Contractor in
the performance of Agreement.
3.12.2 It is specifically agreed that neither Contractor nor Owner
shall be held responsible or liable for any loss, damage, detention or delay
("Loss"), arising from causes beyond the control and without the fault or
negligence of the Contractor or Owner, including but not limited to acts of God,
acts of the public enemy, acts of another contractor in the performance of a
contract with the Owner which is not performed pursuant to a Work Order
hereunder, fires, floods, epidemics, quarantine restrictions, strikes, freight
embargoes, or unusually severe weather or delays of Subcontractors or suppliers.
Contractor shall not be held responsible or liable for any Loss resulting from
suspension of Work by or acts or neglect of Owner. In the event of such Loss,
Contractor or Owner shall promptly give written notice to the other party and
the time and/or cost for performance of each affected Project, shall be adjusted
by Change Order pursuant to Article 3, subsection 3.7 hereof.
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3.13 CORRECTIVE ACTION PLAN. If Contractor consistently fails to comply
with any non-material provision of the Agreement, any Work Order or any
agreement for Other Work Owner may, at its sole discretion and with sufficient
written description of the failure, direct that Contractor produce a corrective
action plan to remedy such failure within ten (10) days of receipt of such
request. In the event that such corrective action plan performed by Contractor
does not remedy such failure, Owner may escalate the issue in accordance with
the provisions of Article 8, Subsection 8.2 of this Agreement.
ARTICLE 4. PAYMENT AND COSTS
4.1 PAYMENT. The parties intend for this Agreement to be a "Cost Plus"
Agreement and that, except as otherwise provided herein, Contractor shall not be
obligated to incur any costs which will not be reimbursed by Owner as set forth
herein nor shall Contractor charge Owner any costs not directly related to a
Work Order. For each Work Order, the Owner shall pay the Contractor the Project
sum, which shall be comprised of the reimbursable costs ("Reimbursable Costs")
as defined below, and a fee ("Contractor's Fee"), which shall be 12% of the
total of the Reimbursable Costs for such Project,
4.1.1 REIMBURSABLE COSTS. The Reimbursable Costs shall be all
actual direct costs necessarily incurred and paid by the Contractor for Owner in
the proper performance of the Work for a Work Order. Such Reimbursable Costs
allowable under this Agreement shall be the costs and expenses which are
actually incurred by the Contractor in the performance of a Project pursuant to
a Work Order hereunder. Reimburseable Costs shall include but shall not be
limited to actual direct costs incurred by the Project office, Project staff,
and other items directly related to a specific Project performed hereunder,
including prorated costs for general liability,
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worker's compensation and other insurance coverage required for Owner's Work
which insurance is carried at a corporate level by Contractor. Failure to
mention any item of Reimbursable Costs herein shall not bear upon a
determination of its allowability. All Reimbursable Costs must be documented and
copies of invoices including a detailed summary of charges shall be sent to
Owner prior to the making of any payment by Owner therefor.
4.1.1.1 LABOR AND LABOR-RELATED ITEMS.
(a) LABOR COST. Labor cost shall be the actual direct cost
of Project staff, including salary or wages, benefits, payroll insurance and
payroll taxes. The positions included as Reimbursable Cost are limited to those
positions listed in the Project Staffing Plan. Other positions such as any
corporate office support staff and other corporate level supervisory personnel
are considered to be overhead to the Project and are, therefore, explicitly not
Reimbursable Cost. Vacation, personal day pay, holiday pay, sick leave pay,
bonus and rest and relaxation (R&R) pay shall be charged as incurred. Owner
shall have the right on an annual basis and at Owner's expense to an independent
audit of Project timesheets and payroll records to determine whether a
materially disproportionate amount of vacation pay, personal day pay, holiday
pay, sick leave pay, bonus and R&R pay is being charged to Owner's Projects. In
the event such an audit discloses such a disproportionate charge, Owner shall be
entitled to an equitable adjustment to charges for labor costs and associated
Contractor's fees. If the disproportionate charge is three percent (3%) or more
than what should be charged to Owner's projects hereunder then Contractor shall
reimburse Owner for the actual direct cost of such audit. Contractor agrees that
during its normally scheduled annual review process it shall determine the
average annual salary paid in the previous year for its field employees.
Contractor further agrees
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that the change in salary or wages over a Contract year shall not increase on a
percentage basis more than the percentage increase in the Consumer's Price Index
for all urban consumers (CPIU). In the event the Contractor desires to change
salary or wages of its Project Staff in excess of the CPIU percentage increase
for any Contract Year, then Contractor shall provide notice and justification
for such increase to Owner. Owner shall promptly review such information and
shall not unreasonably withhold consent to such request. Bonus amounts paid to
Contractor employees assigned to Owner's Projects will be consistent with Bonus
amounts paid to all of Contractor's employees in comparable positions.
(b) Cost of Living Adjustment ("COLA") applied to labor
costs where applicable will be consistent with Contractor's policy set forth in
Exhibit G.
(c) The cost of moving supervisory and administrative
employees who are assigned to the Work for a specific Project from their last
place of employment in accordance with the Contractor's current moving policy
which is attached hereto and incorporated herein as part of Exhibit G shall be a
Reimbursable Cost. Owner shall not pay relocation costs for the movement of any
Contractor employee from Owner's Project Site. However, Owner shall pay the
costs of demobilization for a Project if the project is canceled or
substantially reduced in scope prior to completion.
(d) Travel Expenses in connection with the following:
(i) Trips included in Contractor's current R&R policy
attached hereto and incorporated herein as part of Exhibit G;
(ii) Trips to various fabricating plants, Subcontractor
or material supplier locations to inspect their facilities and/or financial
condition in regard to the
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Work on a Project which Work is approved by Owner via a Work Order and trips to
various fabricating plants, Subcontractor or material supplier locations to
inspect the progress of the Work being prepared for a Project and to consult on
methods of fabrication, shipment, etc.;
(iii) Trips for Project Management Staff for training
purposes including training courses, Project Management Meetings to be held not
more often than once per calendar quarter not to exceed One Hundred Fifty
Thousand Dollars ($150,000.00) per Contract Year provided such training is
directly related to the improvement of the Project Management Staff's skills in
the performance of Work for Owner's Projects; and/or
(iv) Trips conducted as part of the relocation
provisions of Article 4.1.1.1(b) above.
(e) In order to reduce the number of personnel assigned to
the job site or to expedite the performance of the Work hereunder, Contractor
may, as agreed to and stated in the applicable Work Order, perform off-job site
engineering, drafting clerical and/or accounting work, in which case the costs
of such Work shall be charged to the Project based on actual labor costs marked
up by the percentages in Exhibit D, supported by time cards, expense reports,
and expense vouchers. These charges shall be considered Reimbursable Costs as
defined in Article 4.
4.1.1.2 MATERIALS AND MATERIAL-RELATED ITEMS
(f) The cost of all permanent materials, equipment and
supplies directly related to a Work Order. Credit shall be given the Owner for
all trade or quantity discounts obtained from vendors by Contractor for the
purchase of materials, equipment or supplies.
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(g) The actual cost of all temporary and other expendable
services, materials and supplies, including fuel, oil and grease, which are
normally consumed in performance of the Work. Any such expendable materials and
supplies for which the Contractor has been reimbursed by the Owner and which
remain after completion of the Work will be disposed of as directed by the
Owner.
(h) The cost of all necessary inspections, tests, loading,
handling, permits, transportation and insurance of whatever character or
description paid by the Contractor for materials and supplies used in the
construction of a Project.
(i) All materials, equipment and supplies shall be
delivered, handled, stored, installed, protected and disposed of in such a
manner to prevent damage in accordance with current practice in the industry, in
accordance with manufacturer's specifications and recommendations, in accordance
with the Work Order requirements and in accordance with all laws. The Contractor
will haul and store packaged materials and equipment in their original and
sealed containers, marked with the brand and manufacturer's name, until ready
for use, and haul and deliver such materials and equipment in ample time to
facilitate inspections and tests prior to installation. The "delivery" in
reference to any item specified or indicated means the unloading and storing
with proper protection at the Project site. Damaged materials or equipment will
be rejected and removed from the site by the Contractor.
4.1.1.4 EQUIPMENT AND EQUIPMENT RELATED ITEMS
(j) The cost of rental of all equipment including but not
limited to vehicles required for the Work. The cost of rental of equipment
charged to Owner for equipment owned by the Contractor for a Project shall be
consistent with the current market rate for renting
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or leasing similar items from nationally recognized third party rental
companies. The cost of rental of equipment charged to Owner for use by
Contractor from third parties shall be the actual rental rate charged. The
actual rental rate for the equipment shall be consistent with the current market
rates for renting or leasing similar items from a nationally recognized third
party rental company. As part of any Work Order or agreement for Other Work, the
Contractor shall prepare a utilization chart listing all equipment to be used on
the Project, together with the corresponding fully maintained (excluding
consumable items such as oil, grease and fuel) rental rates for such equipment,
and submit same to the Owner for its approval.
4.1.1.5 MISCELLANEOUS
(k) For any Contractor Project office supporting more than
one Project or in conjunction with a third party's project, direct actual costs
for such Project office shall be prorated to each Project or project based on a
methodology specified in the Work Order.
(l) The budgeted fees of any consultants engaged in a
professional capacity pursuant to a Work Order.
(m) Losses and expenses, not compensated by insurance or
otherwise and actual, direct costs associated with the recovery or collection of
such Losses and expenses, including but not limited to the deductible amount of
any insurance required by Article 7 sustained by the Contractor in connection
with the Work provided they have resulted from causes other than the fault or
negligence of the Contractor, its Subcontractors, agents or employees.
(n) All federal, state and local sales taxes, use taxes,
excise taxes, personal property taxes or special assessments, except taxes on
Contractor's income, in
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connection with the Work or materials to be performed pursuant to a Work Order
or agreement for Other Work.
(o) Such other items properly chargeable to the cost of the
Project to which Owner and Contractor have previously agreed to as part of an
executed Work Order.
4.2 COST CONTROL. The Contractor recognizes the relationship of trust
and confidence established between it and the Owner by this Agreement and agrees
to furnish its best skill and judgment and to cooperate with the Owner.
Contractor agrees to furnish efficient business administration and
superintendence, and to use commercially reasonable efforts to minimize expense
to the Owner, to keep upon the location for each Project at all times an
adequate supply of qualified workers as specified in the Project Staffing Plan,
tools, equipment and materials and to promote the progress of the work in the
most expeditious and economical manner consistent with the interests of the
Owner.
4.3 MOST FAVORED NATION. The cost basis for labor and associated cost
items and equipment rental rates charged to Owner under this Agreement or any
Work Order or agreement for Other Work (except for charges by Subcontractors or
other third parties not employees of Contractor) shall be no greater than the
lowest cost basis charged to other customers (including Contractor's
subsidiaries and affiliates) of Contractor.
4.4 INDEPENDENT CONTRACTOR. It is the intention of this Agreement that
the Contractor shall be and remain an independent contractor and nothing herein
is intended to be construed as inconsistent with that status. Contractor and
Owner, expressly intending that no employment, partnership, or joint venture
relationship is created by this Agreement, hereby agree as follows:
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(a) Contractor shall act at all times as an independent contractor
hereunder;
(b) Neither Contractor nor anyone employed by or acting for or on
behalf of Contractor shall ever be construed as an employee of Owner and Owner
shall not be liable for employment or withholding taxes respecting Contractor or
any employee of Contractor;
(c) Except as otherwise provided herein, Contractor shall determine
when, where and how Contractor shall perform the Work;
(d) Contractor shall take all steps to ensure that Contractor and
Contractor's employees are treated as independent contractors of Owner;
(e) Owner shall have the right to conduct inspections and reviews of,
and determine satisfactory performance of, the Contractor's services;
(f) Contractor shall provide Contractor's own materials, tools and
equipment in performing the services;
(g) Contractor shall, as an allocated cost, maintain workers
compensation insurance for Contractor and for all others employed by or acting
for or on behalf of Contractor only to the extent and in the amounts required by
law;
(h) Contractor shall be free to contract with, and provide
Contractor's services to, parties other than Owner during the term of this
Agreement, subject to the confidentiality restrictions delineated herein;
(i) Contractor shall not make any commitment or incur any charge or
expense in the name of Owner without the prior written approval of Owner; and
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(j) Contractor, for Contractor and for anyone claiming through
Contractor, waives any and all rights to any consideration, compensation or
benefits, except as provided for herein.
4.5 ACCOUNTING SYSTEM. The Contractor shall keep accurate and detailed
books of account for all Work performed for each Project open to the inspection
of the Owner at reasonable times and frequency during Contractors regular
business hours to verify all Reimbursable Costs, and Contractor's Fees due to
Contractor hereunder. Contractor shall make its books and records available at
Owner's election, to an independent certified public accountant reasonably
acceptable to Contractor for the purpose of auditing the Reimbursable Cost
including the labor burden factors as shown on Exhibit D, and Contractor's Fees.
Contractor shall keep such full and detailed accounts and Project costs as may
be necessary for proper financial management by the Contractor under this
Agreement in a manner and pursuant to methods which are reasonably satisfactory
to the Owner. Owner shall have the right to request other reports as are deemed
necessary by Owner and Contractor shall comply with such request. Owner shall be
responsible for and shall reimburse Contractor for any direct costs associated
with such requested reports. The Contractor shall also monitor the approved cost
estimate for each Project and shall show actual costs for activities in progress
and estimates for uncompleted tasks by way of comparison with such approved
estimate. In the event the results of any audit show Contractor's costs to be in
error to the material detriment of Owner, Contractor shall credit to Owner any
such differentials and Contractor shall also reimburse Owner for the costs of
the audit.
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Contractor shall at all times act in good faith and to the best advantage of the
Owner in the purchase of materials, in the employment of labor, and in all its
conduct and activities related to any work on Projects performed pursuant to
this Agreement.
4.6 PROGRESS PAYMENT. As soon as is possible after the first of each
month, the Contractor shall submit to the designated office of the Owner an
application for payment for the Work performed for each Project in the preceding
month less any retainage held for Contractor's Subcontractors. Contractor may,
subject to approval of Owner, submit an aggregate progress payment application
for Projects or a separate application for each Project, but in any event, costs
for each Project shall be separately stated.
4.6.1 Monthly payments to the Contractor for the Work performed to
such date will be made within thirty (30) days after receipt of each invoice by
the Owner. Such applications for payment shall be submitted, in a form
satisfactory to the Owner which form is attached hereto as Exhibit J and shall
be accompanied by documentation of all Reimbursable Costs including but not
limited to weekly payrolls and time sheets, showing the amounts paid to each
worker or employee, and allocation of each employee's time to the Project and
bills for materials delivered to each Project site and payments made or due to
Subcontractors. Contractor and Owner shall use commercially reasonable efforts
to resolve any disputed items within five (5) business days after the payment
due date. Any disputes not resolved within this time frame shall be handled in
accordance with Article 8, Subsection 8.2 hereof. Owner may withhold payment for
any disputed items until all such issues relating thereto are resolved, but
shall pay all undisputed amounts promptly in accordance with the provisions of
this Agreement. Owner shall act in good faith and not in an arbitrary or
capricious manner in disputing any amount. The basis
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for disputed amounts shall be documented to Contractor. As used in this Article
4, Subsection 4.6.1, "amount" shall be defined as a specific line item or items
in a relevant invoice, not the total amount of the invoice, unless all line
items in the invoice are reasonably disputed. Monthly payments to the Contractor
shall, in addition to payment for Reimbursable Costs for Work Performed, include
the Contractor's Fee to be paid to the Contractor for such Work performed in the
applicable month.
4.6.2 The contractor's application for payment shall constitute a
representation to the Owner, based on its determinations at the Project site,
that to the best of the Contractor's knowledge, information and belief, the Work
has progressed to the point indicated and the quality of the Work is in
accordance with the Work Order. The foregoing representations are subject to an
evaluation of the Work for conformance with the Work Order upon substantial
completion, the results of subsequent tests and inspections, to minor deviations
from the Work Order correctable prior to acceptance.
4.7 LATE PAYMENT. Any payment not made by Owner to Contractor within
forty-five (45) days after the date of invoice shall bear interest on a monthly
basis from the date due until the date paid at the rate of the sum of the prime
rate then current as published in the Wall Street Journal plus four percent (4%)
divided by twelve (12). Any payment not made by Owner to Contractor within
ninety (90) days after the date of the invoice shall bear interest on a monthly
basis beginning on the 90th day at rate of the sum of the prime rate then
current as published in the Wall Street Journal plus eight percent (8%) divided
by twelve (12) but in no event shall this amount be greater than the maximum
interest amount allowed by applicable laws. Payment shall be deemed made on the
date received by the Contractor. Owner shall also pay Contractor's actual
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costs incurred for collection of any late payment or fees due hereunder,
including reasonable attorneys fees. Interest or collection costs paid hereunder
shall not be applied to the Aggregate Project Sum. Any failure by Owner to make
payments when due within ninety (90) days of the date of invoice three (3) or
more times during each Contract Year may be an event of default pursuant Article
8 hereof.
4.8 ANNUAL AND AGGREGATE PROJECT SUM. Owner hereby agrees to execute
sufficient Work Orders and agreements for Other Work with Contractor under this
Agreement so that the Annual Project Sum shall total no less than Forty Million
Dollars ($40,000,000.00) per Contract Year and the Aggregate Project Sum shall
total no less than Three Hundred Twenty Five Million Dollars ($325,000,000.00)
during the Term. The Annual Project Sum shall be defined as the sum of all
payments paid or due by Owner to Contractor for Work actually performed by
Contractor hereunder including Reimbursable Costs and Contractor's Fees for each
Project (hereinafter "Aggregate Project Sum"). The Aggregate Project Sum shall
be defined as the cum of all payments paid or due by Owner to Contractor for
Work actually performed by Contractor hereunder including Reimburseable Costs
and Contractor's Fee for each Project (hereinafter "Aggregate Project Sum) for
all Work Orders and agreements for Other Work executed during the Term. Both the
Annual Project Sum and the Aggregate Project Sum shall include any Contractor's
Fee Trueup amounts as set forth in Subsection 4.10.
4.9 COMMITMENT FULFILLED. Owner and Contractor agree that Owner shall
have met the Annual Project Sum commitment when the total Annual Project Sum is
Forty Million Dollars ($40,000,000.00). Owner and Contractor agree that Owner
shall have met the Aggregate Project Sum Commitment when the total Aggregate
Project sum is Three Hundred Twenty Five Million Dollars
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($325,000,000.00) at the end of the Term. Further, the parties agree that Owner
shall have met all commitments hereunder when the total Aggregate Project Sum
reaches Five Hundred Million Dollars ($500,000,000.00) which may occur at any
time during the Term. Owner shall have the right to unilaterally terminate this
Agreement upon its payment of the Aggregate Project Sum to Contractor. Upon such
termination Owner shall have no further obligations to Contractor hereunder
except as otherwise provided herein. The parties agree that the Aggregate
Project Sum and the Annual Project Sum for the first Contract Year shall include
but are not limited to the amounts for Work performed by Contractor subsequent
to the date of this Agreement for Projects listed on Exhibit A, attached hereto
and incorporated herein.
4.10 CONTRACTOR'S FEE TRUEUP. In the event Owner fails to execute Work
Orders or commitments for Other Work sufficient to reach the Annual Project Sum
or the Aggregate Project Sum, upon expiration of the Contract Year or Term, as
appropriate, Owner shall pay Contractor, in addition to all other sums due by
Owner to Contractor hereunder the "Contractor's Fee Trueup," which shall be
computed as follows:
4.10.1 Revenue Shortfall=
a) Annual Project Sum commitment minus all amounts paid,
invoiced or otherwise due by Owner to Contractor for completed portions of Work
Orders and/or agreements for Other Work during a Contract Year; and/or
b) Aggregate Project Sum commitment minus all amounts paid,
invoiced or otherwise due by Owner to Contractor during the Term minus any
amounts for Work in progress at the end of the Term which Work is performed and
payment is made or due within twelve (12) months after the end of the Term.
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4.10.2
Revenue Shortfall = X
Contractor's Fee Trueup = 12X
4.10.3 The Contractor's Fee Trueup due for each Contract Year, if
any, shall be due within forty-five (45) days after the date of invoice and late
payments shall be treated in accordance with subsection 4.7 hereof. An estimated
final Contractor's Fee Trueup, if any, shall be due at the end of the Term
within forty-five (45) days after the date of invoice and late payments shall be
treated in accordance with subsection 4.7 hereof. The final Contractor's Fee
Trueup, if any, shall be invoiced twelve (12) months after the completion of the
Term and shall also be treated in accordance with subsection 4.7 hereof.
ARTICLE 5. OWNER'S RESPONSIBILITIES
5.1 AUTHORIZED REPRESENTATIVE. The Owner shall designate a
representative authorized to act on the Owner's behalf with respect to each
Project. The Owner, or such authorized representative, shall render decisions in
a timely manner pertaining to documents submitted by the Contractor in order to
avoid unreasonable delay in the orderly and sequential progress of the Work.
5.2 PROVISION OF DATA. Owner shall provide any and all relevant plans,
specifications, facts and other data to the Contractor as agreed to in the Work
Order promptly upon request of Contractor to enable the Contractor to complete
the work by the completion date specified in the Work Order.
5.3 OWNER'S OWN FORCES. The Owner reserves the right to perform
construction and operations related to a Project with Owner's own forces, and to
award Contracts in
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connection with the Project which are not part of the Contractors'
responsibilities pursuant to a Work Order. Owner will notify Contractor in
writing of such election. The Contractor shall notify the Owner if any such
independent action will interfere with the Contractor's responsibilities under
this Agreement and Owner agrees to cooperate with Contractor and all
Subcontractors.
5.4 PROMPT REPLY. Information or services under the Owner's control
shall be furnished by the Owner with reasonable promptness to avoid delay in the
orderly progress of the Contractor's services and the progress of the Work.
5.5 FAILURE TO PROVIDE INFORMATION. If Owner fails to provide in a
timely manner any information or services necessary to the progress of a Project
or makes an election under Article 5.3, Contractor shall be entitled to an
equitable adjustment, by way of a Change Order, in the budget and schedule for
such project.
ARTICLE 6. OWNER'S AND CONTRACTOR'S REPRESENTATIONS
6.1 CONTRACTOR REPRESENTATIONS AND COVENANTS. Contractor represents to
an covenants with Owner as follows:
(a) Contractor is duly organized and validly existing and Contractor
has the authority to execute this Agreement and has access to sufficient
personnel and expertise to perform its obligations hereunder; and
(b) Contractor will use its commercially reasonable efforts, in good
faith, to keep all required authorities in full force and effect during the Term
and to obtain any additional authorities, permissions or certifications which
may be required in connection with this Agreement.
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(c) There are no pending, or to Contractor's knowledge threatened,
claims, actions, suits, audits, investigations or proceedings by or against
Contractor which would have a material adverse effect on Contractor's
performance under or ability to comply with this agreement.
6.2 OWNER REPRESENTATIONS AND COVENANTS. Owner represents to and
covenants with Owner as follows:
(a) Owner is duly organized and validly existing and Owner has the
authority to execute this Agreement and perform its obligations hereunder;
(b) Owner will use its commercially reasonable efforts, in good faith,
to keep all required authorities in full force and effect during the Term and to
obtain any additional authorities, permissions or certifications which may be
required in connection with this Agreement; and
(c) There are no pending, or to Owner's knowledge, threatened, claims,
actions, suits, audits, investigations or proceedings by or against Owner which
would have a material adverse effect on Owner's performance under or ability to
comply with this Agreement.
ARTICLE 7. INSURANCE AND BONDS
Prior to commencement of any Work for any Project hereunder, Contractor
shall procure and maintain, with insurers reasonably acceptable to the Owner,
the following insurance protecting the Owner, Contractor and all other parties
required by the Owner against liability from damages because of injuries,
including death, to persons, and liability for damages to property arising from
Contractor's operations, including its employees, agents, Subcontractors and
suppliers operations, in connection with the performance of this Agreement. This
insurance shall be kept in good standing during the term of this Agreement.
Owner reserves the right to
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have an Owner controlled Insurance Program for all Work performed by Contractor
and Contractor agrees to cooperate reasonably with such efforts. Additional
insurance requirements, if any, required by third parties shall be set forth in
the applicable Work Order or Agreement for Other Work. The cost of insurance
(including co-insurance and deductables paid) shall be a Reimbursable Cost
hereunder and coverage for the Projects shall be provided as follows:
7.1 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY. Worker's
Compensation insurance complying with the laws of the state or states of
operation, whether or not such coverage is required by law, and Employer's
Liability insurance with limits of $1,000,000 each accident, including
occupational disease coverage with a limit of $1,000,000 each employee and
$1,000,000 disease policy limit. If work is to be performed in Nevada, North
Dakota, Ohio, Wyoming, Washington or West Virginia, Contractor will purchase
Worker's Compensation in the State Fund established in the respective States.
Stop Gap Coverage or Employers Overhead coverage will be purchased.
When any Work Order calls for water operations, Longshoreman's and
Harbor Worker's Compensation insurance, Jones Act, and Maritime Coverage
providing for transportation, wages, maintenance and cure, with the limits of
$500,000 each employee, $500,000 more than one employee, shall be included. An
endorsement shall be attached evidencing that a claim "in rem" shall be treated
as a claim against the employer.
7.1.1 Commercial General Liability insurance with a combined
single limit for bodily injury and property damage of $2,000,000 each occurrence
and $4,000,000 annual aggregate. Annual aggregate shall apply on a per project
basis. Such policy shall include coverage for all operations of Contractor,
including products and completed operations coverage,
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blanket contractual liability and independent contractor coverage, and will be
endorsed to delete exclusion for work, construction or demolition within 50 feet
of railroad trackage. This policy shall include no modifications that reduce the
standard coverages provided under a Commercial Guaranty Liability policy form.
7.1.2 Business Automobile Liability insurance with a combined
single bodily injury and property damage single limit of $2,000,000 each
occurence. This policy shall include coverage for owned, non-owned, and hired
vehicles.
7.1.3 When vessel(s) or barge(s) are used by the Contractor for
the performance of Work, protection and indemnity, collision and towers
liability insurance if applicable, on such vessel(s) or barge(s) both owned and
non-owned, in a single limit of not less that $5,000,000 or the value of the
vessel(s) or barge(s), which ever is greater, shall be provided.
When vessel or barges are used, the Contractor will provide hull
insurance in amounts to the full value of the vessel(s) or barge(s) owned and/or
operated by or for the Contractor.
7.1.4 In the event Contractor conducts diving operations, with the
divers who are employees, agents or servants of Contractor, from Owner's
vessels, Contractor's vessels or any other marine equipment, they shall only do
so at the express written request of the Owner Representative. Contractor agrees
to indemnify and save Owner harmless from any liability, loss, cost or damage,
including cost of defense, arising from or connected with such diving
operations.
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Seaworthiness of Owner's vessel(s) used herein, for such diving operations is
acknowledged and agreed to by Contractor, and neither Contractor nor its
insurance carrier shall contest this.
7.1.5 When aircraft is used by the Contractor for performance of the
Work, the Contractor will provide Aircraft Liability insurance on both owned and
non-owned aircraft, including helicopters, with combined single limit of
$1,000,000 per scat for bodily injury and property damage, including passenger
legal liability.
When any aircraft is used by the Contractor for the performance of the
Work, Aircraft Hull insurance in amount to the full value of each aircraft will
be maintained by the Contractor on such aircraft owned and/or operated by or for
the Contractor.
7.1.6 Umbrella or Excess Liability Insurance applying in excess of
7.1.1 through 7.1.5 above subject to a limit of $5,000,000.
7.1.7 The maintenance of insurance by the Contractor and the limits of
coverage required shall in no way limit or affect the extent of the Contractor's
liability.
7.1.8 Limits required above may be obtained through various primary and
umbrella structures.
7.2 BUILDER'S RISK. As requested by Owner, Contractor shall procure and
maintain during the term of a Work Order or an agreement for Other Work, an all
risk builders' risk insurance policy protecting the Owner, Contractor and all
Subcontractors, as their interests may appear, from loss due to the Work or to
any equipment supplies or material including any such items directly provided by
Owner pursuant to Article 4 hereof going into the Work, while at the Project
site, or while in transit to or from the Project site. The limit of liability of
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this insurance shall be no less than the greater of the value of the Project
after the Work has been performed or the approved Project Budget estimate in the
applicable Work Order per occurence and shall contain a deductible of no more
than $500,000 per occurence. If coverage is requested by Owner, cost for
builder's risk insurance shall be a Reimbursable Cost.
7.3 ERRORS AND OMISSIONS. If requested in writing by Owner, Contractor
shall procure and maintain during the term of a Work Order or agreement for
Other Work insurance against the errors or omissions of Contractor or any of
Contractor's employees, agents or subcontractors performing Work hereunder with
limits satisfactory to Owner. If coverage is requested by Owner, cost of Errors
and Omission insurance shall be a Reimbursable Cost. If coverage is written on a
"claims made" basis, all renewals during the life of this Agreement will include
"prior acts coverage".
7.4 RAILROAD PROTECTIVE. If requested in writing by Owner, Contractor shall
procure and maintain during the term of a Work Order or agreement for Other
Work, Railroad Protective Insurance protecting Owner, Contractor and
Subcontractor and in such limits as specified in the applicable Work Order.
7.5 INSURANCE REQUIRED OF SUBCONTRACTORS. Except as may be waived or
modified by Owner in writing, the Contractor shall require all Subcontractors to
provide and maintain the insurance required above subject to all requirements
set forth in this Article 7, provided however, that Builder's Risk, Errors and
Omissions, Railroad Protective, Owners Contractors Protective Liability and
Contractors Pollution Liability insurance shall only be required of
Subcontractors if requested by Owner as part of the Work Order agreement for
Other Work or if required pursuant to Article 3, Subsection 3.5 hereof.
Contractor and Owner shall be listed as additional insureds
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on Subcontractor's policies. Owner's approval of any Subcontractor shall be
conditioned upon a Subcontractor having the required insurance coverage. Except
as may be waived or modified by Owner in writing, each Subcontractor shall also
require its Subcontractors, if any, to provide and maintain insurance as
required above.
7.6 ADDITIONAL INSURED. Owner shall be listed as an additional insured on
Contractor's and Subcontractor's policies. Contractor hereby waives its right,
and agrees to require its underwriter any and all Subcontractors to waive all
such rights, of subrogation against Owner, its officers, directors, agents, and
employees thereof, and corporate shareholders and officers, directors, agents
and employees thereof. Such waiver shall also extend to companies and other
legal entities that control, are controlled by, are subsidiaries of or are
affiliated with Company, and the respective officers, directors, agents,
employees and shareholders of such companies or entities. Contractor's insurance
is understood to be primary as respects the interest of additional insureds.
7.6.1 Owner or its Affiliates shall not insure nor be responsible for
any loss or damage to property of any kind owned or leased by Contractor or its
employees, servants, and agents. Any policy of insurance covering the Property
owned or leased by Contractor against loss by physical damage shall provide that
the underwriters have given their permission to waive their rights of
subrogation against Owner, its Affiliates and their Directors, officers, and
employees, as well as their subsidiaries and affiliates, including directors,
officers, and employees thereof.
7.7 EVIDENCE OF COVERAGE. Certificates of insurance or certified copies of
the insurance policies will be provided to the Owner prior to Contractor
beginning any Work under
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this Agreement. Such certificate shall contain a provision that the insurer will
give the Owner at least thirty (30) days prior written notice of any material
changes, reductions, non-renewal or canellation of the coverage. Contractor
shall obtain certificates from its Subcontractor(s) and deliver them to Owner,
if requested to do so. In the event of any failure by Contractor to comply with
the provisions of this paragraph, Owner may, at its option on notice to
Contractor, suspend the affected Work Orders or agreement for Other Work until
there is full compliance with this paragraph or contract for such insurance at
Contractor's expense.
7.8 BONDS. A payment bond from the Contractor shall be required for each
Work Order executed hereunder. The cost shall be a Reimbursable Cost of the
Project, and such bond shall be delivered to the Owner prior to the performance
of any Work. The amount of each bond shall be set by Owner but in no event shall
such amount exceed the amount of the Work Order. The Owner may waive this bond
requirement or, if a bond cannot be obtained for a Work Order, require a letter
of credit of other form of security as an alternative in its sole discretion for
any Work Order performed hereunder. In lieu of individual bonds for each
Project, Contractor and Owner may mutually agree to elect to provide Owner a
blanket payment bond in a face amount to be determined.
7.8.1 Unless and only if Owner waives in writing the requirement of
Article 7.9 for a bond, the Contractor will require payment bonds of all
Subcontractors. Upon Owner's request, copies of all such bonds shall be provided
to Owner for review. The costs of such bonds shall be included in the
Subcontractor's bid price and as such are a Reimbursable Cost. In the event that
Owner waives this requirement for a bond from a Subcontractor, Owner shall be
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responsible for any payment default of such unbonded Subcontractor which is not
otherwise cured by legal or equitable remedies.
ARTICLE 8. DEFAULT AND TERMINATION
8.1 DEFAULT. The following events shall constitute an Event of Default
hereunder.
8.1.1 CONTRACTOR DEFAULT. The Contractor shall be in default of the
Agreement
if:
8.1.1.1 Contractor becomes insolvent, is adjudged a bankrupt, or
makes a general assignment for the benefit of its creditors, or becomes a
subject of any proceeding (voluntary or involuntary) commenced under any statute
or law for the relief of debtors, or a receiver, trustee or liquidator of any of
the property or income of Contractor shall be appointed which judgment,
assignment, proceeding or receivership is not dismissed or discharged within
ninety (90) days of the date of notice thereof.
8.1.1.2 Contractor refuses or fails to prosecute the Work in
accordance with the Work Order, or this Agreement in any material respect; or
8.1.1.3 Contractor fails in any material respect to observe any
other terms, provisions, conditions, convenants, representations, warranties or
agreements in this Agreement, any Work Order or any agreement for Other Work to
be observed and performed on the part of the Contractor ("Material Default"). A
Material Default under subsections 8.1.1.2 and 8.1.1.3 may include but is not
limited to the following:
(a) Failure by Contractor to make proper payment to
Subcontractors or others for undisputed amounts due for services, materials or
labor (provided Owner shall have
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paid to Contractor any payments for such Work for which payment is demanded by
Subcontractor); or
(b) Failure by Contractor to comply with laws, ordinances,
rules and regulations or orders of any public authority having jurisdiction of
which Contractor has or should have knowledge after making reasonably diligent
inquiries and except as directed by Owner and which failure has a material
adverse effect on a Project; or
(c) Failure to use commercially reasonable efforts to
prosecute the work in compliance with the budget or scheduling requirements, set
forth in a Work Order or agreement for Other Work subject to any equitable
adjustments in budget or schedule as provided herein; or
(d) Failure to correct any incomplete or unacceptable items
during any final inspection and testing which failure has a materially adverse
effect on the Project.
8.1.2 OWNER'S REMEDIES. In the event of a default by Contractor
hereunder, if the failure is not corrected or good faith efforts are not being
made to correct within ten (10) calendar days after receipt of written notice
from Owner to Contractor, Owner may without prejudice to any other right or
remedy:
8.1.2.1 With or without terminating Work Order or agreement for
Other Work, take over and/or employ such workers as may be necessary to remedy
the noncompliance. Notwithstanding the foregoing, all costs expended by Owner
hereunder, including the value of the Contractor's Fee application thereto,
shall be applied to the Annual Project Sum and Aggregate Project Sum.
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8.1.2.2 Terminate the Work Order for the Project in default,
agreement for Other Work in default or this Agreement and all Projects hereunder
and have only the obligation to pay Contractor payments due for portions of Work
completed pursuant to the requirements set forth in the applicable Work Order or
agreements for Other Work up to the date of termination. In the event of a
termination of this Agreement, Contractor shall not be entitled to any
Contractor's Fee Trueup as set forth in Article 4.10 hereof; and/or
8.1.2.3 Make a claim against Contractor's or Subcontractor's bond
or other security.
8.1.3 OWNER DEFAULT. The Owner shall be in default of the
Agreement if:
8.1.3.1 Owner fails to make any payment due to Contractor
hereunder three (3) or more times during a Contract Year within ninety (90) days
after the date of invoice, unless such nonpayment is the subject of a good faith
dispute; or
8.1.3.2 Owner becomes insolvent, is adjudged a bankrupt, or
make a general assignment for the benefit of creditors, or becomes the subject
of any proceeding (voluntary or involuntary) commenced under any statute or law
for the relief of debtors, or a receiver, trustee or liquidator of any of the
property or income of Contractor shall be appointed, which judgment, assignment,
proceeding or receivership is not dismissed or discharged within ninety (90)
days of the date of notice thereof.
8.1.4 CONTRACTOR REMEDIES. In the event of a default by Owner
hereunder if failure is not corrected or good faith efforts are not being made
to correct within ten (10) calendar days after receipt of written notice from
Contractor to Owner, Contractor may without prejudice to any other right or
remedy:
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<PAGE>
8.1.4.1 Terminate the applicable Work Order or agreement for
Other Work for default without terminating this Agreement in which case the
Owner shall be responsible for all payments due to Contractor as of the date of
termination of the affected Work Order or agreement for Other Work; or
8.1.4.2 Terminate this Agreement for default.
8.1.5 In the event of a termination of any Work Order, agreement
for Other Work or this Agreement for default, Contractor shall be entitled to
receive reimbursement of all costs including the entire minimum Contractor's Fee
Trueup expected to be paid pursuant to Article 4 hereof during the Term.
8.1.6 In no event shall Contractor suspend its performance for any
Work under any Work Order or agreement for Other Work prior to termination of
the applicable Work Order agreement for Other Work, or this Agreement as
applicable.
8.2 DISPUTE RESOLUTION/ARBITRATION
8.2.1 MANAGEMENT MEETINGS. Except with respect to payments of
undisputed amounts to Contractor by Owner, in the event of a dispute, claim or
other matter arising out of or relating to this Agreement or breach thereof, the
parties agree that in addition to the remedies available to each party as
outlined above, the parties may contemporaneously provide the other party with a
written notice outlining the nature of the dispute. Within five (5) business
days of the receipt of such notice the Contractor's Project Manager and Owner's
designee shall meet in a good faith effort to resolve the dispute. If the
dispute cannot be resolved at such meeting, the parties agree that within twenty
(20) business days of the initial meeting, a second meeting shall take place
with a Vice President or person with similar decision making authority
representing each of the Contractor and Owner. If the dispute remains unresolved
after such second meeting
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<PAGE>
and the parties have used good faith efforts to otherwise resolve the dispute
then the parties shall participate in Arbitration as set forth below.
8.2.2 ARBITRATION. All claims, disputes and other matters in
question arising out of, or relating to, this Agreement or the breach thereof
which are not resolved pursuant to 8.2.1 above, shall be decided by arbitration
in accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association then in effect unless the parties mutually agree in
writing otherwise. This Agreement to arbitrate shall be specifically enforceable
under the prevailing arbitration law. This award rendered by the arbiters shall
be final, and judgment may be entered upon it in accordance with applicable law
in any court having jurisdiction thereof.
8.2.2.1 Notice of demand for Arbitration shall be filed in
writing with the other party to the Agreement and with the American Arbitration
Association. The demand for arbitration shall be made within a reasonable time
after the claim, dispute or other matter in question has arisen, and in no event
shall it be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matters in questions would be
barred by the application statute of limitations. The Contractor shall carry on
the Work and maintain the progress schedule during any arbitration proceedings,
(provided Owner is not otherwise in breach of this Agreement) and Owner shall
continue to pay any undisputed sums to Contractor.
8.2.2.2 The foregoing notwithstanding, either party may seek
injunctive relief from a court of competent jurisdiction which may be necessary
to protect its rights under this Agreement without being required to show any
actual damages or to post an injunction bond.
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<PAGE>
ARTICLE 9. INDEMNIFICATION AND LIABILITY
9.1 INDEMNIFICATION BY CONTRACTOR. Contractor shall be liable for and
shall defend, indemnify and hold harmless the Owner and its officers, directors,
agents and employees from and against any and all claims, demands, causes of
action, losses, damages, costs and expenses (including reasonable attorney's
fees) of every kind and character arising in favor or any person including
Contractor, Owner's employees, Contractor's employees, Subcontractors or other
persons on account of personal injuries or death or damage to any property
(hereinafter "Claims") in any way incident to, arising out of, or claimed to
have arisen out of, occuring in, in connection with, or relating to the Services
performed by Contractor hereunder (including Claims in any way incident to,
arising out of, or claimed to have arisen out of, occuring in, in connection
with, or relating to the Services performed by any and all Subcontractors),
except if directly or indirectly due to Owner's or Owner's employees'
negligence. Owner shall have a direct right of action against Contractor in the
event Contractor fails to perform under this Article 9.1 and Owner may recover
all of the reasonable costs of such action, including reasonable attorney's
fees. Contractor shall obtain a written agreement from anyone (including
Subcontractors) retained or employed by Contractor which shall include this
indemnification in favor of Owner.
9.1.1 Contractor further agrees to indemnify and hold Owner
harmless against the payment of any and all penalties, interest, liens or
indebtedness or claims against Owner's property, or for work performed, or
materials furnished, or measured by the work performed, growing out of or
incident to Contractor's operations hereunder. Contractor agrees to reimburse
Owner and Owner's employees for each and every reasonable cost or charge,
including court
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costs, all expenses of litigation and reasonable attorney's fees, if any, which
Owner, its successors, assigns or employees, may incur in defending against or
prosecuting any such claims, demands, causes of action or suits brought pursuant
to Services performed under this Agreement.
9.1.2 Contractor shall release, indemnify, and hold the Owner
harmless from and against any and all claims arising from or relating to any
loss or damage to property of any kind owned or leased by Contractor or its
employees, servants, agents and Subcontractors unless directly or indirectly due
to Owner's or Owner's employee's negligence.
9.1.3 All obligations to assume, protect, defend, indemnify, and
save the Owner harmless shall extend to the Owner's officers, directors,
employees, agents, shareholders, and to companies and other legal entities that
control, are controlled by, are subsidiaries of, or are affiliated with Owner
and the respective officers, directors, agents, and employees of such companies
or entities and shall continue for so long as any of the named indemnities may
be subjected to claims or suits calling for such obligations, notwithstanding
the completion, acceptance or payment for the Work.
9.2 INDEMNIFICATION BY OWNER. Owner shall be liable for and shall
defend, indemnify and hold harmless the Contractor and its officers, directors,
agents and employees from and against any Claims to the extent they arise from
the negligence and/or willful misconduct of the Owner, its employees or agents.
9.3 NOTICE OF CLAIMS. Each party shall notify other promptly of written
Claims or demands of which the other party is responsible hereunder. The
indemnifying party shall have the right to defend the Claim with counsel of its
own choosing but no settlement or compromise of any Claim hereunder shall be
completed without the consent of the indemnified party.
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<PAGE>
9.4 LIMITATION OF LIABILITY. In no event shall either party hereto be
liable for any consequential, incidental, special, indirect or remote damages
including, but not limited to, loss or use, lost revenues or profits (except for
Contractor's Fee Trueup payable under Article 4.10 hereof) or interest on
borrowed funds, arising out of or in connection with its performance of this
Agreement whether arising in contract, warranty, tort (including negligence) or
strict liability.
ARTICLE 10. WARRANTY
10.1 WARRANTY. Any equipment, materials, and services supplied by
Contractor, its agents, employers, suppliers, or Subcontractors, are warranted
by Contractor or its suppliers or Subcontractors as appropriate, to be of good
quality and workmanship and will be properly installed by Contractor or its
Subcontractors as appropriate. To the extent possible, Contractor shall also
assign to Owner all manufacturers, suppliers or Subcontractor's warranties for
any services, equipment and materials. All warranties made hereunder shall be
for a minimum period of one (1) year following Owner's acceptance of the Work
for such Project unless otherwise specified in a Work Order, provided however,
that any warranty for materials or services not provided directly by Contractor
shall be the warranty of the Subcontractor or supplier which Contractor shall
pass through to Owner. Where a Certificate of Occupancy is issued by Contractor
to Owner, the warranty period shall commence upon the date the Certificate of
Occupancy is issued for equipment, materials, or services which are directly
related to such Certificate of Occupancy. Contractor shall not be obligated to
continue these warranty obligations for any equipment (including software),
materials and/or services which have been improperly repaired or altered,
abused, misused or improperly handled by Owner unless such repair or alteration
was necessitated by an act or omission of Contractor, Subcontractor or their
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respective employees or agents. Notwithstanding the foregoing, all fiber optic
cable purchased by Contractor for Owner hereunder shall have a minimum three
(3) year warranty assignable to Owner unless otherwise agreed to in a Work
Order.
10.2 FREE FROM DEFECTS. The Contractor warrants to the Owner that all
materials and equipment furnished under this Agreement will be new unless
otherwise specified in an Work Order or agreement for Other work, free from
faults and defects and in conformance with the Work Order, agreement for Other
Work and/or this Agreement. All work not conforming to these requirements,
including substitutions not properly approved and authorized, may be considered
defective and must be cured by Contractor at Contractor's expense. If required
by the Owner, Contractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment furnished hereunder.
10.3 NO OTHER WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE
FOREGOING WARRANTIES AND THOSE CONTAINED IN ANY WORK ORDER OR AGREEMENT FOR
OTHER WORK CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE WORK PERFORMED
HEREUNDER, OR ANY STATEMENT OF WORK, THERE BEING NO OTHER WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
ARTICLE 11 HAZARDOUS MATERIALS AND CONCEALED CONDITIONS
11.1 HAZARDOUS MATERIALS. In the event Contractor encounters toxic or
hazardous materials in performance of any Project, any resulting delays and
costs shall be considered to be beyond its control, without its fault and
outside the scope of such Project unless such encounter
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is due to the gross negligence or willful misconduct of Contractor, its
employees, officers or directors or Subcontractors. Such toxic or hazardous
materials shall be removed or otherwise dealt with by Owner or by the
appropriate government agency, organization or third party. Contractor shall
have no obligation, responsibility or liability with respect to such materials.
Notwithstanding the foregoing, Contractor agrees that it will be responsible for
the cleanup or any other cost, damage or liability arising from any toxic or
hazardous materials generated or used by Contractor, its employees or
Subcontractors in the course of its performance of any Work under this
Agreement. Contractor agrees in any event to cooperate fully with Owner and to
perform reasonable and customary investigations as to the existence of hazardous
materials prior to the performance of any Work hereunder.
11.2 CONCEALED CONDITIONS. The Contractor shall promptly, upon discovery,
and before any such conditions are disturbed, notify the Owner in writing of:
(1) subsurface or latent physical conditions at the site of Work differing
materially from those indicated in the Contract Documents, or (2) unknown
physical conditions at such site, of an unusual nature, differing materially
from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this Agreement. The Contractor shall, at
Owner's direction, promptly investigate the conditions, and if it finds that
such conditions do materially so differ and cause an increase or decrease in the
Contractor's cost of, or the time for, performance of any part of the Work under
the applicable Work Order an equitable adjustment of time shall be, made and the
Work Order modified accordingly. Owner and Contractor acknowledge that all costs
incurred in investigating the conditions and performing such Work are
Reimbursable Costs.
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<PAGE>
ARTICLE 12 MISCELLANEOUS
12.1 TITLE. Title to all Work completed pursuant to a Work Order or
agreement for Other Work hereunder and to all materials and supplies on account
of which payment in full has been made by Owner shall be and vest in the name of
Owner.
12.2 ASSIGNMENT. Owner may not transfer, assign or otherwise delegate its
obligations under this Agreement without the express written consent of the
Contractor which consent shall not be reasonably withheld; provided, however,
that Owner may assign its rights, including the obligation of payment to
Contractor and Owner's rights under any Work Order or agreement for Other Work,
under this Agreement to its subsidiaries, affiliates or successors in interest
without prior written consent of Contractor. Contractor may not transfer, assign
or otherwise delegate its obligations under this Agreement without the express
written consent of Owner which may be withheld by Owner in its sole discretion.
Any assignment by any party hereunder shall not release the assigning party from
its obligations under this Agreement.
12.3 SEVERABILITY. If any provision of this Agreement is adjudicated to be
invalid or unenforceable, the remainder shall be valid and enforceable, and the
parties shall negotiate in good faith to recreate such provision in a valid and
enforceable form to provide for the intent of such provision.
12.4 WAIVER. Failure of Owner or Contractor at any time to require strict
performance of any provision of this Agreement shall not constitute a waiver of
that provision nor in any way limit enforcement of that provision.
12.5 NOTICES. Except as otherwise set forth herein, when any notice or
other communication is required or authorized to be given hereunder, such notice
shall, for all
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purposes, be in writing and either delivered personally to the addressee, by
telex or facsimile transmission followed by mailing, or mailed registered or
certified mail return receipt requested, or by express mail, postage prepaid and
shall be deemed given when so delivered personally, when such telex or facsimile
transmission is received or, if mailed, five (5) days after the date of mailing
to the address of the respective parties at the following addresses:
(i) if sent by Owner to Contractor, addressed as follows:
MFS Network Technologies, Inc.
1200 Landmark Center
Suite 1300
Omaha, NE 68102
Attn: Vice President, Operations
With a copy to:
MFS Network Technologies, Inc.
1200 Landmark Center
Suite, 1300
Omaha, NE 68102
Attn: Vice President, Corporate and Legal Affairs
and
Able Telcom Holding Corp.
1601 Forum Place
Suite 1110
West Palm Beach, FL 33401
Attn: President
(ii) If sent by Contractor to Owner, addressed as follows:
WorldCom Network Services, Inc.
Purchasing & Contracts, MD 1.1-131F
6929 N. Lakewood Avenue
Tulsa, OK 74117
Attn: Contract Administrator
With a copy to:
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WorldCom Network Services, Inc.
6929 N. Lakewood Avenue
Tulsa, OK
Attn: Vice President, Construction and Facilities
and
Worldcom, Inc.
One Tower Lane, Suite 1600
Oakbrook Terrace, IL 60181
Attn: Counsel for Development
12.6 CONFIDENTIALITY.
12.6.1 Owner and Contractor agree to hold and will use their commercially
reasonable efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in confidence,
unless compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning this
Agreement and any Work or Project performed hereunder, except to the extent that
such information can be shown to have been (i) in the public domain through no
fault of the received party, or (ii) later lawfully acquired by the receiving
party from third parties without an obligation of confidentiality. The
obligation of Owner and Contractor to hold any such information in confidence
shall be satisfied if it exercises the same care with respect to such
information as it would take preserve the confidentiality of its own similar
information.
12.6.2 The drawings, specifications and other documents are
instruments of service through which the Work to be performed by the Contractor
is described. The Contractor may retain one record set. The Contractor shall not
own or claim a copyright or any other right in the drawings, specifications and
other documents. All copies of them, except the record set, shall be returned to
Owner on request upon completion of the Project. The drawings,
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specifications and other documents and copies thereof furnished to the
Contractor, are for use solely with respect to a Project. They are not to be
used by the Contractor on other projects without the specific written consent of
the Owner. The Contractor is granted a limited license to use and reproduce
applicable portions of the drawings, specifications and other documents prepared
for a Project appropriate to and for use in the performance of the Contractor's
services under this Agreement. All drawings, specifications and other documents
relating to the Project are owned by the Owner, including drawings,
specifications and other documents generated by Contractor for Owner or used to
perform work for Owner prior to the date of this Agreement
12.6.3 Subject to the confidentiality requirements stated herein,
neither party shall reference or use any part of this Agreement or the names of
the parties hereto in any press release, marketing, advertising or other sales
or promotional materials without the express written consent of the other party
which will not be unreasonably withheld or delayed.
12.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.8 NO CONSTRUCTION AGAINST DRAFTER. The parties acknowledge that this
Agreement and all the terms and conditions contained herein have been fully
reviewed and negotiated by the parties and that each party has been represented
by Counsel. Having acknowledged the foregoing, the parties agree that any
principle of construction or rule of law that provides that, in the event of any
inconsistency or ambiguity, an agreement shall be construed against the drafter
of the agreement shall have no application to the terms and conditions of this
Agreement.
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12.9 COURSE OF DEALING. The parties acknowledge that due to the previous
relationship between Contractor and Owner, the sequence of previous acts and
conduct between Contractor and Owner related to the Work to be performed
pursuant to this Agreement and any Work Orders or agreements for Other Work
executed hereunder, is fairly to be regarded as establishing a common basis of
understanding for interpreting each party's expressions and other conduct as
further described in the Uniform Commercial Code.
12.10 SURVIVAL. The provisions of Articles 9, 10, 11 and 12 shall survive
the expiration or termination of the Agreement and Owner and Contractor each
agree to be bound thereto as appropriate.
12.11 GOVERNING LAW. The Agreement, and all the rights and duties of the
parties arising from or relating in any way to the subject matter of this
Agreement or the transaction(s) contemplated by it, shall be governed by,
construed, and enforced in accordance with the laws of the State of Delaware
(excluding any conflict of laws provisions).
12.12 ENTIRE AGREEMENT. This Agreement and all Exhibits an Schedules
attached hereto constitute the entire agreement between parties with respect to
the subject matter hereof. This Agreement shall be binding upon the parties
hereto and their permitted successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument,
through their authorized officers, effective the date first above written.
OWNER
WORLDCOM NETWORK SERVICES, INC.
By:______________________________
John Sidgmore
Title:____________________________
CONTRACTOR
MFS NETWORK TECHNOLOGIES, INC.
By:_______________________________
Title:____________________________
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MASTER SERVICE AGREEMENT
LIST OF OMITTED SCHEDULES
EXHIBIT EXHIBIT TITLE
------- -------------
A CURRENT PROJECTS
B WORK ORDERS
C AGREEMENTS FOR OTHER WORK
D ENGINEERING SERVICES RATE SCHEDULE
E CHANGE ORDER FORM
F CERTIFICATE OF COMPLETION
G CONTRACTOR'S LABOR POLICIES
H SUBCONTRACT TERMS & CONDITIONS
I PROFESSIONAL SERVICES AGREEMENT
J INVOICE FORM
THE COMPANY WILL PROVIDE COPIES OF ANY OMITTED EXHIBIT(S) TO THE COMMISSION
UPON REQUEST FROM THE COMMISSION FOR SAID EXHIBIT(S).
EXHIBIT 10.26
SENIOR SECURED REVOLVING CREDIT AGREEMENT
Dated as of April 6, 1998
By and Among
ABLE TELCOM HOLDING CORP.
and
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
and
BANK OF AMERICA, FSB,
individually and as Syndication Agent
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
Definitions, Construction ............................................ 1
Section 1.1
Definitions .................................................... 1
Section 1.2
Accounting Terms and Determination .............................. 20
Section 1.3
Other Definitional Provisions ................................... 20
Section 1.4
Exhibits and Schedules .......................................... 21
ARTICLE 2 REVOLVING LOANS ................................................. 21
Section 2.1
Commitment; Use of Proceeds ..................................... 21
Section 2.2
Notes; Repayment of Principal ................................... 22
Section 2.3
Voluntary Reduction of Revolving Loan Commitments ............... 22
Section 2.4
Extension of Commitment ......................................... 22
ARTICLE 3
LETTERS OF CREDIT .................................................... 23
Section 3.1
Letters of Credit Loan .......................................... 23
Section 3.2
Drawings Under Letters of Credit ................................ 24
Section 3.3
General Provisions as to Letters of Credit ...................... 25
Section 3.4
Participation in Letters of Credit .............................. 27
ARTICLE 4
GENERAL LOAN TERMS ................................................... 28
Section 4.1
Funding Notices ................................................. 28
Section 4.2
Disbursement of Funds ........................................... 29
Section 4.3
Interest ........................................................ 30
Section 4.4
Interest Periods ................................................ 31
Section 4.5
Fees ............................................................ 31
<PAGE>
Section 4.6
Voluntary Prepayments of Borrowings ............................. 32
Section 4.7
Payments, etc. .................................................. 33
Section 4.8
Interest Rate Not Ascertainable, etc. ........................... 34
Section 4.9
Illegality ...................................................... 35
Section 4.lO
Increased Costs ................................................. 35
Section 4.11
Lending Offices ................................................. 37
Section 4.12
Funding Losses .................................................. 37
Section 4.13
Assumptions Concerning Funding of LIBOR Advances ................ 38
Section 4.14
Apportionment of Payments ....................................... 38
Section 4.15
Sharing of Payments, Etc. ....................................... 38
Section 4.16
Capital Adequacy ................................................ 39
Section 4.17
Benefits to Guarantors .......................................... 39
Section 4.18
Return of Payments .............................................. 39
ARTICLE 5
CONDITIONS TO BORROWINGS ............................................. 39
Section 5.1
Conditions Precedent to Initial Loans ........................... 39
Section 5.2
Conditions to All Loans ......................................... 43
ARTICLE 6
REPRESENTATIONS AND WARRANTIES ....................................... 44
Section 6.1
Organization and Qualification .................................. 44
Section 6.2
Corporate Authority ............................................. 44
Section 6.3
Financial Statements ............................................ 44
Section 6.4
Tax Returns ..................................................... 45
Section 6.5
Actions Pending ................................................. 45
Section 6.6
Representations; No Defaults .................................... 45
<PAGE>
Section 6.7
Title to Properties; Capitalized Leases ......................... 45
Section 6.8
Enforceability of Agreement ..................................... 46
Section 6.9
Consent ......................................................... 46
Section 6.10
Use of Proceeds; Federal Reserve Regulations .................... 46
Section 6.11
ERISA ........................................................... 46
Section 6.12
Subsidiaries .................................................... 47
Section 6.13
Outstanding Indebtedness ........................................ 47
Section 6.14
Conflicting Agreements .......................................... 47
Section 6.15
Environmental Matters ........................................... 48
Section 6.16
Possession of Franchises, Licenses, Etc. ....................... 49
Section 6.17
Patents, Trademarks, Etc. ....................................... 49
Section 6.18
Governmental Consent ............................................ 49
Section 6.19
Disclosure ...................................................... 50
Section 6.20
Insurance Coverage .............................................. 50
Section 6.21
Labor Matters ................................................... 50
Section 6.22
Intercompany Loans; Dividends ................................... 50
Section 6.23
Burdensome Restrictions ......................................... 51
Section 6.24
Solvency ........................................................ 51
Section 6.25
First, Perfected Security Interest in Collateral ................ 51
Section 6.26
Places of Business .............................................. 51
Section 6.27
Securities Acts ................................................. 51
Section 6.28
Investment Company Act; Holding Company ......................... 51
Section 6.29
Regulation G, Etc. .............................................. 51
<PAGE>
Section 6.30
Stock Redemption ................................................ 51
Section 6.31
Changes in Financial Condition; Adverse Developments ............ 52
Section 6.32
Investments ..................................................... 52
Section 6.33
Real Estate ..................................................... 52
Section 6.34
Leases .......................................................... 52
Section 6.35
Year 2000 Compliance ............................................ 52
ARTICLE 7
AFFIRMATIVE COVENANTS ................................................ 52
Section 7.1
Corporate Existence, Etc. ....................................... 52
Section 7.2
Compliance with Laws, Etc. ...................................... 53
Section 7.3
Payment of Taxes and Claims, Etc. ............................... 53
Section 7.4
Keeping of Books ................................................ 53
Section 7.5
Visitation, Inspection, Etc. .................................... 53
Section 7.6
Insurance; Maintenance of Properties ............................ 54
Section 7.7
Reporting Covenants ............................................. 54
Section 7.8
Financial Covenants ............................................. 59
Section 7.9
Notices Under Certain Other Indebtedness ........................ 60
Section 7.10
Additional Guarantors ........................................... 60
Section 7.11
Fiscal Year ..................................................... 60
Section 7.12
Ownership of Guarantors ......................................... 60
Section 7.13
Lockbox Account; Special Collection Account ..................... 61
Section 7.14
Consents of Lessor .............................................. 61
Section 7.15
Subordination of Intercompany Loans ............................. 61
Section 7.16
Proceeds of Assets, Sale/Equity Offerings ....................... 61
<PAGE>
Section 7.17
Hedging Agreements .............................................. 62
ARTICLE 8
NEGATIVE COVENANTS ................................................... 62
Section 8.1
Indebtedness .................................................... 62
Section 8.2
Liens ........................................................... 63
Section 8.3
Sales, Etc ...................................................... 64
Section 8.4
Mergers, Acquisitions, Sales, Etc. .............................. 64
Section 8.5
Investments, Loans, Etc. ........................................ 64
Section 8.6
Sale and Leaseback Transactions ................................. 65
Section 8.7
Transactions with Affiliates .................................... 65
Section 8.8
Optional Prepayments ............................................ 65
Section 8.9
Changes in Business ............................................. 65
Section 8.10
ERISA ........................................................... 65
Section 8.11
Additional Negative Pledges ..................................... 66
Section 8.12
Limitation on Payment Restrictions Affecting Consolidated
Companies ..................................................... 66
Section 8.13
Actions Under Certain Documents ............................... 66
Section 8.15
Use of Proceeds ................................................. 66
Section 8.16
Guaranties ...................................................... 66
Section 8.17
No Payments on the Subordinated Obligations ..................... 67
Section 8.18
Changes in Management ........................................... 67
Section 8.18
Investments in Able International ............................... 67
ARTICLE 9
EVENTS OF DEFAULT .................................................... 67
Section 9.1
Payments ........................................................ 67
Section 9.2
Covenants Without Notice ........................................ 67
<PAGE>
Section 9.3
Other Covenants ................................................. 67
Section 9.4
Representations ................................................. 68
Section 9.5
Non-Payments of Other Indebtedness .............................. 68
Section 9.6
Defaults Under Other Agreements ................................. 68
Section 9.7
Bankruptcy ...................................................... 68
Section 9.8
ERISA ........................................................... 69
Section 9.9
Money Judgment .................................................. 69
Section 9.10
Ownership of Credit Parties ..................................... 70
Section 9.11
Change in Control of Borrower ................................... 70
Section 9.12
Default Under Other Credit Documents ............................ 70
Section 9.13
Attachments ..................................................... 70
Section 9.14
Material Adverse Effect ......................................... 70
ARTICLE 10
THE AGENT ............................................................ 71
Section 1O.1
Appointment of Agents ........................................... 71
Section 10.2
Nature of Duties of Agents ...................................... 71
Section 10.3
Lack of Reliance on the Agents .................................. 72
Section 10.4
Certain Rights of the Agents .................................... 72
Section 10.5
Reliance by Agents .............................................. 73
Section 10.6
Indemnification of Agents ....................................... 73
Section 10.7
The Agents in their Individual Capacity ......................... 73
Section 10.8
Holders of Notes ................................................ 74
Section 10.9
Successor Agents ................................................ 74
Section 10.10
Agents in Individual Capacity ................................... 75
<PAGE>
Section 10.11
Administrative Agent's Perfection of Security Interest .......... 75
ARTICLE 11
MISCELLANEOUS ........................................................ 75
Section 11.1
Notices ......................................................... 75
Section 11.2
Amendments Etc. ................................................. 75
Section 11.3
No Waiver Remedies .............................................. 75
Section 11.4
Payment of Expenses, Etc. ....................................... 76
Section 11.5
Right of Setoff ................................................. 78
Section 11.6
Benefit of Agreement ............................................ 78
Section 11.7
Governing Law, Submission to Jurisdiction ....................... 81
Section 11. 8
Independent Nature of Lenders' Rights ........................... 82
Section 11.9
Collateral to Benefit All Lenders ............................... 82
Section 11.10
Counterparts .................................................... 82
Section 11.11
Effectiveness; Survival ......................................... 82
Section 11.12
Severability .................................................... 83
Section 11.13
Independence of Covenants ....................................... 83
Section 11.14
Change in Accounting Principles, Fiscal Year or Tax Laws ........ 83
Section 11.15
Headings Descriptive; Entire Agreement .......................... 84
Section 11.16
Time is of the Essence .......................................... 84
Section 11.17
Usury ........................................................... 84
Section 11.18
Construction .................................................... 84
<PAGE>
SCHEDULES
Schedule 6.1 Organization and Ownership of Subsidiaries
Schedule 6.4 Tax Filings and Payments
Schedule 6.5 Pending and Threatened Litigation
Schedule 6.7 Capitalized Lease Obligations
Schedule 6.11 Employee Benefit Matters
Schedule 6.13 Outstanding Debt Defaults, Refinanced
Indebtedness
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.15(d) Equal Employment and Employee Safety
Schedule 6.17 Intellectual Property Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 6.23 Restrictions
Schedule 6.26 Places of Business
Schedule 6.30 Stock Redemption
Schedule 6.32 Investments
Schedule 6.33 Real Estate
Schedule 6.34 Leases
Schedule 8.1 (b) Permitted Debt
Schedule 8.2 Permitted Liens
Schedule 9.11 Inside Shareholders
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Subsidiary Guaranty Agreement
Exhibit C Form of Contribution Agreement
Exhibit D International Group
Exhibit E Form of Revolving Credit Note
Exhibit F Form of Security Agreement
Exhibit G Form of Supplement to Security Agreement
Exhibit H Form of Request for Extension of Termination Date
Exhibit I Form of Closing Certificate
Exhibit J Form of Opinion of Borrower's Counsel
Exhibit K Form of Joinder
Exhibit L Form of Supplement to Subsidiary Guaranty Agreement
Exhibit M Form of Supplement to Contribution Agreement
Exhibit N Form of Assignment of Leases
<PAGE>
SENIOR SECURED REVOLVING CREDIT AGREEMENT
THIS SENIOR SECURED REVOLVING CREDIT AGREEMENT, dated as of April 6, 1998
(the "Agreement"). by and among ABLE TELCOM HOLDING CORP., a Florida
corporation, ("Borrower"), SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION,
a national banking association ("STSF" or "Administrative Agent"), and BANK OF
AMERICA, FSB ("BAFSB" or "Syndication Agent") (STSF and BAFSB are sometimes
collectively referred to as the "Lenders" and, individually, a "Lender"; the
Syndication Agent and the Administrative Agent are sometimes collectively
referred to as the "Agents").
W I T N E S S E T H:
THAT for and 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 thereto, the following terms
shall have the following meanings (to be equally applicable to both the
singular and plural forms of the term defined):
"ACCOUNT" shall mean any right of any Obligor, whether or not earned
by performance, to payment for goods or other property sold or leased or for
services rendered that is not evidenced by an Instrument or Chattel Paper,
including, without limitation:
(a) all presently owned and hereafter acquired receivables, including
all open accounts, contract rights, notes, drafts, acceptances, rental
receivables, installment payment obligations and other obligations for or rights
to the payment of money created by any Obligor or acquired by any Obligor from
others;
(b) all cash and non-cash proceeds thereof, and all contracts,
documents, invoices and other instruments evidencing the same; and
(c) all collateral security therefor (including guaranties, mortgages,
or security interests) and all of the Obligors' rights and remedies in
connection with the Accounts or in connection with any property sold or leased
which is represented thereby.
<PAGE>
"ADMINISTRATIVE AGENT" shall mean SunTrust Bank, South Florida,
National Association, as agent for the Lenders hereunder and under the other
Credit Documents, and each successor Administrative Agent.
"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 or LIBOR Advance.
"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.
"AGREEMENT" shall mean this Senior Secured 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.
"AGREEMENT NOT TO ENCUMBER" shall mean an agreement from an Obligor to
the Administrative Agent, in form and substance acceptable to the Administrative
Agent, pursuant to which the Obligor which is the owner of a parcel of Real
Estate agrees not to place or allow Liens on that Real Estate other than
Permitted Liens.
"APPLICABLE MARGIN" shall mean:
<TABLE>
<CAPTION>
The percentage designated below based on the Borrower's Total Debt to
EBITDA Ratio:
Total Debt/EBITDA Applicable Margin
- ----------------- -----------------
LIBOR Advances Base Rate Advances Commitment Fee
-------------- ------------------ --------------
<S> <C> <C> <C>
/greater than or equal to/3.00 2.50% 0.25% 0.375%
------------------------------ ----- ----- ------
/greater than/2.50 and /less than/3.00 2.25% 0.00% 0.375%
- -------------------------------------- ----- ----- ------
/greater than/1.50 and /less than or equal to/2.50 2.00% 0.00% 0.25%
- -------------------------------------- ----- ----- ------
/less than or equal to/1.50 1.75% 0.00% 0.25%
--------------------------- ----- ----- ------
</TABLE>
PROVIDED, HOWEVER, that adjustments to the Applicable Margin based on
changes in the Total Debt TO EBITDA Ratio as set forth above shall be
calculated by the Administrative Agent quarterly, based upon the
Borrower's financial statements for the period comprised of four (4)
fiscal quarters of Borrower most recently ended, and shall become
effective on the Business Day on which the financial
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<PAGE>
statements reflecting such change in the Total Debt to EBITDA Ratio are
delivered to the Administrative Agent.
"ASSIGNMENTS" shall mean the assignments of the Leases in the form of
the Assignments of Leases attached hereto as EXHIBIT N.
"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 A.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as amended
and in effect from time to time (11 U.S.C. ss.5101 ET SEQ.).
"BASE RATE" shall mean (with any change in the Base Rate to be
effective as of the date of change of the following rates) the greater of the
rate which Administrative Agent announces from time to time as its prime lending
rate, as in effect from time to time (the "Prime Rate") or (b) the Federal Funds
Rate, as in effect from time to time, PLUS one-half of one percent (0.50%) per
annum. The Administrative Agents Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate charged borrowing customers of the
Administrative Agent. The Administrative Agent may make commercial loans or
other loans at rates of interest at, above or below the Administrative Agent's
Prime Rate.
"BASE RATE ADVANCE" shall mean an Advance made or outstanding and
bearing interest based on the Base Rate.
"BORROWING" shall mean the incurrence by Borrower under the Facility
of Advances of one Type concurrently (and, for LIBOR Advances, 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 any day other than Saturday, Sunday or a
day on which Administrative Agent is or is authorized to be closed pursuant to
authorization or requirement of law.
"CAPITAL STOCK" of any Person shall mean any shares, equity or profits
interests, participations or other equivalents (however designated) of capital
stock and any rights, warrants or options, or other securities convertible into
or exercisable or exchangeable for any such shares, equity or profits interest,
participations or other equivalents, directly or indirectly (or any equivalent
ownership interest, in the case of a Person which is not a corporation).
"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 6.15 of this Agreement.
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<PAGE>
"CHATTEL PAPER" shall mean a writing or writings that evidence both a
monetary obligation and a security interest in or a lease of specified goods.
"CLOSING DATE" shall mean the date on or before April 30, 1998, on
which the initial Loans are made and the conditions set forth in Article 5 are
satisfied or waived in accordance with Section 5.1.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" shall mean (a) a first, perfected security interest
(subject to the Permitted Liens) in (i) all the intangible and tangible personal
property assets of the Obligors, including Accounts, Chattel Paper, Documents,
Equipment, Instruments, Intangible Assets and Inventory, whether now owned or
hereafter existing or acquired, wherever located, (ii) all Leases, and (iii) all
property of the Obligors now or at any time hereafter in the possession of the
Administrative Agent or the Syndication Agent or any of their Affiliates in any
capacity whatsoever, including but not limited to, deposit balances, accounts,
items, certificates of deposit or monies, and (b) proceeds of the foregoing, all
as more particularly described in the Security Documents, together with all
other property of any type at any time pledged or assigned to the Administrative
Agent and/or the Lenders as collateral for the Obligations.
"COLLATERAL ASSIGMENTS" shall mean the Collateral Assigments of
Lease executed by an Obligor in favor of the Administrative Agent and the
Lenders assigning the Obligor's leasehold interest in the Leases as collateral
for the Loans.
"COMMITMENT" shall mean, for any Lender at any time, its Revolving
Loan Commitment.
"CONSENT OF LESSOR" shall mean the written agreement to the
Administrative Agent by a landlord under any Lease to which any Obligor is a
party by which said landlord agrees that any landlord's lien, security interest,
or any other encumbrance which the landlord may at any time have in or to any
property of the Obligor as a tenant under such Lease is subordinate in all
respects to the lien granted the Administrative Agent, on behalf of the Lenders,
in any personal property of said Obligor, which consent or waiver shall be in
form acceptable to the Administrative Agent
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower and all
of its Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal period of
Borrower, total interest expense (including without limitation, interest
expense attributable to capitalized leases) of the Consolidated Companies on a
consolidated basis.
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<PAGE>
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal period of
Borrower, the net income (or loss) of the Consolidated Companies on a
consolidated basis for such period (taken as a single accounting period);
PROVIDED THAT there shall be excluded therefrom (i) any items of gain or loss
resulting from the 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 party
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 the Borrower
or any of its Subsidiaries.
"CONSOLIDATED NET WORTH" shall mean, for any period of determination,
the net worth of the Consolidated Companies on a consolidated basis, determined
in accordance with GAAP plus the Series A Convertible Preferred Stock of
Borrower.
"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.
"COVENANT COMPLIANCE CERTIFICATE" shall mean a certificate, in form
and content satisfactory to the Administrative Agent, which shall (a) set forth
the various financial covenants and ratios which the borrower is required to
comply with during the term of this Agreement, (b) contain calculations
reflecting whether or not the Borrower is in compliance with each such financial
covenant or ratio requirement, (c) contain a statement as to whether or not the
Borrower is in default under this Agreement or any of the other Credit Documents
and, if the Borrower is in default, such statement shall indicate the nature
thereof as well as the steps which Borrower proposes to take in order to cure
said default, and (d) be certified to be true and correct by an Executive
Officer of the Borrower acceptable to the Administrative Agent.
"CREDIT DOCUMENTS" shall mean, collectively, the Agreement, as
amended from time to time, the Notes, the Guaranty Agreements, all other
Guaranty Documents, the Hedging Agreements, and the Security Documents, together
with all other documents, agreements, certificates, schedules, notes, statements
and opinions, however described, referenced herein or delivered pursuant hereto
or in connection with or arising out of the Loans or the transactions
contemplated by this Agreement.
"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.
"DEFAULT RATE" shall mean the interest rate otherwise applicable to
each Advance plus two percent (2%), provided that, for each LIBOR Advance, at
the end of the Interest Period applicable to such Advance, the interest rate
shall be the Base Rate plus the Applicable Margin plus two percent (2%), but in
no event shall such interest rate exceed the highest lawful rate.
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<PAGE>
"DOCUMENT" shall mean any now owned or hereafter acquired bill of
lading, dock warrant, dock receipt, warehouse receipt or order for the delivery
of goods, and also any other document, whether negotiable or non-negotiable,
that in the regular course of business of financing is treated as
adequately evidencing that the Person in possession of it is entitled to
receive, hold and dispose of the document and the goods it covers.
"DOLLAR" and the sign "$" shall mean lawful money of the United
States of America.
"EBITDA" shall mean, with respect to the Consolidated Companies on a
consolidated basis, for any period, the net income for such period, plus,
without duplication and to the extent reflected as charges in the statement of
net income for such period, the sum of (1) income taxes, (b) Consolidated
Interest Expense and (c) depreciation and amortization expense; provided,
however, with respect to any Person that becomes a Subsidiary of, or was merged
or consolidated into, the Borrower during such period, "EBITDA" shall also
include the EBITDA of such Person during such period and prior to the date of
such acquisition, merger or consolidation.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized under
the laws of the United States, or any state thereof, 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, and having the force of laws, now or hereafter in effect
(including, without limitation, those with respect to asbestos or asbestos
containing material or exposure to asbestos or asbestos containing material),
relating to pollution or protection of the environment and relating to public
health and safety, including, without limitation, those imposing liability or
standards of conduct concerning (i) emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or industrial toxic
or hazardous materials, 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
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<PAGE>
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 Code.
"EVENT OF DEFAULT" shall have the meaning set forth in Article 9.
"EQUIPMENT" shall mean all now existing and hereafter acquired goods
(other than Inventory) owned by an Obligor or used primarily in the business of
any Obligor, wherever located, including, but not limited to, machinery, motor
vehicles, rolling stock, furniture, furnishings, fixtures, leasehold
improvements, parts (including spare parts and repair parts) and tools, together
with all fittings, accessories, accessions, additions, modifications,
improvements, equipment and special tools now or hereafter affixed to any or any
part of the foregoing or used in connection with any part of the foregoing and
all replacements of any part thereof and all products and proceeds of any of the
foregoing.
"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, Chief Financial Officer or Treasurer
and any Person holding comparable offices or duties.
"EXTENSION OF CREDIT" shall mean the making of a Loan or the
conversion of a Loan of one Type into a Loan of another Type.
"FACILITY" or "FACILITIES" shall mean the Revolving Loan Commitments
and Loans.
"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.
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<PAGE>
"FEE LETTER" shall mean that certain engagement letter, dated February
4, 1998, entered into by and among the Administrative Agent, the Syndication
Agent, and the Borrower.
"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 9.
"FINANCING STATEMENTS" shall mean the financing statements permitted
under the UCC or any other state law for the purpose of perfecting or continuing
the Security Interest.
"FIXED CHARGES" shall mean, with respect to the Consolidated Companies
on a consolidated basis for any period, the sum of Consolidated Interest
Expense, payments of Capital Lease Obligations, cash dividends and current
maturities of Funded Debt due in such period.
"FUNDED DEBT" shall mean, without duplication, all indebtedness for
money borrowed, purchase money mortgages, capitalized leases, conditional sales
contracts and similar title retention debt instruments under which a
Consolidated Company is an obligor, including any current maturities of such
indebtedness, which by its terms matures more than one year from the date of any
calculation thereof and/or which is renewable or extendible the option of the
obligor to a date beyond one year from such date plus all debt of other entities
or Persons, other than Subsidiaries, which has been guaranteed by the Borrower
or any Subsidiary or which is supported by a letter of credit issued for the
account of the Borrower or any Subsidiary. Funded Debt shall also include the
redemption amount with respect to any stock of the Borrower or its Subsidiaries
required to be redeemed within the next twelve months.
"GAPP" 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.
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<PAGE>
"GUARANTORS" shall mean each and all of the Borrower's Subsidiaries
other than the members of the International Group.
"GUARANTY AGREEMENTS" shall mean, collectively, the Subsidiary
Guaranty Agreement executed by each of the Guarantors in favor of the Lenders
and the Agents, substantially in the form of EXHIBIT B attached hereto as the
same may be amended, restated or supplemented from time to time, and the
Contribution Agreement executed by each of the Guarantors, substantially in the
form of EXHIBIT C, as the same may be amended, restated or supplemented from
time to time.
"GUARANTY DOCUMENTS" shall mean, collectively, the Guaranty
Agreements, 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 SUBSTANCES" has the meaning assigned to that term in
CERCLA.
"HEDGING AGREEMENTS". shall mean the agreements required under Section
7.17.
"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 rental obligations under Capitalized Lease
Obligations; (iii) all Guaranteed Indebtedness of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) obligations or other liabilities under currency
contracts, interest rate hedging contracts, or similar agreements or
combinations thereof.
"INSTRUMENT" shall mean a negotiable instrument or any other writing
that evidences a right to payment of money and is not itself a security
agreement or lease and is of a type that is in the ordinary course of business
transferred by delivery with any necessary endorsement or assignment.
"INTANGIBLE ASSETS" shall mean any of a Person's personal property
(including choses in action) other than goods, Accounts, Chattel Paper,
Documents, Instruments and money and including, but not limited to all now owned
or hereafter acquired (i) deferred assets, other than prepaid insurance and
prepaid taxes, (ii) goodwill, manufacturing and processing rights, patents,
patent right licenses, franchises, permits, copyrights, trademarks, service
marks, trade names, trademark and trade name registrations and applications,
trade secrets, customer lists, tax refund claims, incentive payments, insurance
proceeds, experimental expenses and other similar assets which would be
classified as "intangible assets" under GAAP, (iii) treasury stock and any
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<PAGE>
write-up of the value of any assets after the date hereof unless in accordance
with GAAP, and (iv) all proceeds of any and all of the foregoing.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans more
particularly described on SCHEDULE 6.22 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 8.5 or as may otherwise
be approved in writing by the Administrative Agent and the Required Lenders.
"INTERNATIONAL GROUP" shall mean the Subsidiaries of Borrower listed
on Exhibit D and any Subsidiaries of those Subsidiaries.
"INTEREST PERIOD" shall mean 1, 2, 3 or 6 months as selected by the
Borrower with respect to LIBOR Advances; 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 shall be extended to the next
succeeding Business Day, unless such Business Day falls in the next calendar
month, in which case the Interest Period shall end on the next preceding
Business Day, and (c) Borrower may not elect an Interest Period which would
extend beyond the Termination Date.
"INVENTORY" shall mean all of a Person's now owned and hereafter
acquired (a) goods, merchandise or personal property, wherever located, held for
sale or lease in the ordinary course of business or to be furnished under
contracts of service, (b) raw materials, (c) work in process, (d) materials used
or consumed in a Person's business, (e) materials or supplies used or usable in
manufacturing or processing, (f) packaging and shipping materials, (g)
inventory covered by a warehouse receipt, bill of lading or other negotiable or
non-negotiable Document and (h) returned or repossessed merchandise.
"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.
"LEASES" shall mean all leases of real property under which an Obligor
is the lessee.
"LENDER" or "LENDERS" shall mean BAFSB, STSF, the other banks and
lending institutions listed on the signature pages hereof, and each assignee
thereof, if any, pursuant to Section 11.6.
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"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 Loan.
"LETTER OF CREDIT" OR "LETTERS OF CREDIT" shall mean any one or more
of the standby letters of credit issued at the request of and for the account of
the Borrower pursuant to Section 3.1 hereof, whether issued by or through the
actions of the Administrative Agent, as the same may be transferred, renewed,
modified, amended or restated from time to time in the manner provided therein.
"LETTER OF CREDIT APPLICATION shall mean an application to the
Administrative Agent for the issuance of a Letter of Credit, in form and
substance satisfactory to the Administrative Agent.
"LETTER OF CREDIT FEES" shall mean the fees to be paid to the
Administrative Agent for the issuance of Letters of Credit hereunder pursuant to
Section 4.5 hereof.
"LETTER OF CREDIT OBLIGATIONS" shall mean, in respect of Letters of
Credit issued hereunder, the aggregate undrawn face amount of all such Letters
of Credit, plus the aggregate amount of all unreimbursed draws in respect of
such Letters of Credit.
"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 London banking days prior to the first day of 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%; and in either case as such rates may
be adjusted for any applicable reserve requirements. 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.
"LIBOR ADVANCE" shall mean an Advance made or outstanding and bearing
interest based on LIBOR.
"LIBOR LOAN" shall mean any Loan hereunder which bears interest at a
rate based on LIBOR.
"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 capitalized lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in
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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.
"LOAN" or "LOANS" shall mean, collectively, the Revolving Loans.
"MARGIN REGULATIONS" shall mean Regulation G, Regulation T, Regulation
U and Regulation X of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time.
"MARGIN STOCK" shall mean any "margin stock" within the meaning of
Regulation G of the Board of Governors of the Federal Reserve System (12 CFR
Part 207).
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect upon,
or a material adverse change in, any of the (i) business, results of operations,
properties, or financial condition of the Consolidated Companies taken as a
whole, (ii) legality, validity, binding effect or enforceability of any Credit
Document, or (iii) ability of the Credit Parties to perform their obligations
under the Credit Documents.
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
successors, and assigns.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" shall mean, with respect to any asset sale, all cash
received in connection with the sale, including (i) cash proceeds collected
pursuant to a promissory note, a receivable or otherwise (other than interest
payable thereon), and (ii) with respect to asset sales resulting from the loss,
damage, destruction or taking of property, the proceeds of insurance settlements
and condemnation awards (other than the portion of the proceeds of such
settlements and such awards that are used to repair, replace, improve or restore
the item of property in respect of which such settlement or award was paid
provided that the recipient of such proceeds enters into a binding contractual
obligation to effect such repair, replacement, improvement or restoration within
six months of such loss, damage or destruction and completes such repair,
replacement, improvement or restoration within twelve months of such loss,
damage, destruction or taking) as and when received in cash, in either case,
received by any Consolidated Company as a result of or in connection with such
transaction, net of reasonable sale expenses, fees commissions incurred, and
taxes paid or expected to be payable within the succeeding twelve month period
in connection therewith, and net of any payment required to be made with respect
to the outstanding principal amount of, premium or penalty, if any, and interest
on Indebtedness (other than the Loans) secured by a Lien (to the extent
permitted by Section 8.1) upon the asset sold in such asset sale.
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"NOTE OR "NOTES" shall mean, individually, or collectively, as the
context may require, any of the Revolving Credit Notes, either as originally
executed or as the same may be from time to time supplemented, modified,
amended, renewed, extended or replaced.
"NOTICE OF BORROWING" shall have the meaning provided in Section 4.1.
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning provided in
Section 4.1.
"OBLIGATI0NS" shall mean all amounts owing to the Agents or any Lender
pursuant to the terms of this Agreement or any other Credit Document, including
without limitation, all Loans (including all principal and interest payments due
thereunder), fees, expenses, indemnification and reimbursement 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.
"OBLIGOR" shall mean the Borrower or a Restricted Subsidiary.
"OBIIGORS" shall mean the Borrower and the Restricted Subsidiaries
collectively.
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at SunTrust Bank, South Florida, National Association, 501 East Las Olas
Boulevard, Ft. Lauderdale, Florida 33301, Attn: Corporate Banking Department 7th
Floor; or such other location as may be designated by the Administrative Agent
from time to time in writing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor thereto.
"PERMITTED ACQUISITION" shall mean the acquisition by the Borrower or
any existing or newly formed Subsidiary of the Borrower of the capital stock,
assets and properties and/or business of any unaffiliated Person, whether
through purchase of capital stock, assets, merger, consolidation or like
combination which is consummated with the written consent of the Required
Lenders, which consent may be withheld by the Required Lenders in their sole and
absolute discretion.
"PERMITTED DEBT" shall mean (a) the Obligations, (b) any other
Indebtedness listed on SCHEDULE 8.1(b) attached hereto, and (c) any other
Indebtedness to which the Administrative Agent and the Required Lenders have
given their prior written consent.
"PERMITTED LIENS" shall mean those Liens expressly permitted by
Section 8.2 hereof.
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"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.
"PLACES OF BUSINESS" shall mean those locations owned or leased by any
Obligor or at which any assets of any Obligor are located, as set forth in
SCHEDULE 6.26 hereto.
"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 the Commitnent of each
Lender, 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 Commitment, such
Loans or such payments, as applicable, set forth under the name of such Lender
on the respective signature page for such Lender, 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.
"REAL ESTATE" shall mean any parcel or parcels of real property owned
by an Obligor.
"REFINANCING INDEBTEDNESS" shall mean the outstanding balance under
the Term Loan, Revolving Credit and Security Agreement dated as of November 29,
1995 as modified by Modification of Term Loan, Revolving Credit and Security
Agreement dated as of May 30, 1996, Second Modification of Term Loan, Revolving
Credit and Security Agreement dated October,
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1996, Third Modification of Term Loan, Revolving Credit and Security Agreement
dated as of December 2, 1996, Fourth Modification of Term Loan, Revolving Credit
and Security Agreement dated February 28, 1997 and Fifth Modification of Term
Loan, Revolving Credit and Security Agreement dated June 1, 1997.
"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.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding at least
sixty percent (60%) of the then aggregate amount of the Revolving Loan
Commitments.
"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.
"RESTRICTED INVESTMENT" shall mean, at any time, all Investments
except the following:
(a) Property (including, without limitation, real property and
interests therein) to be used in the ordinary course of business and
current assets arising from the sale of goods and services in the ordinary
course of business of the Borrower and the Restricted Subsidiaries;
(b) Investments in one or more Restricted Subsidiaries or any
corporation (including, without limitation, any corporation acquired by the
Borrower or any Restricted Subsidiary) that concurrently with such
Investment becomes a Restricted Subsidiary and a Guarantor;
(c) Investments in direct obligations of the United States of America,
any agency thereof or obligations guaranteed by the United States of
America, so long as such obligations are backed by the full faith and
credit of the United States of America; PROVIDED that such obligations
mature within three (3) years from the date of acquisition thereof;
(d) Investments in any obligation of any state or municipality thereof
given either of the two (2) highest ratings by at least one credit rating
agency of recognized national standing and maturing within three (3) years
from the date of acquisition;
(e) Investments in certificates of deposit or banker's acceptances
given one (1) of the two (2) highest ratings by at least one credit rating
agency of recognized national standing, issued by a bank or trust company
organized under the laws of the United States of America or any state
thereof having capital, surplus and undivided profits aggregating
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at least Two Hundred Fifty Million Dollars ($250,000,000) and maturing
within one (1) year from the date of acquisition;
(f) Investments in money market mutual funds that invest solely in
so-called "money market" instruments maturing not more than one year after
the acquisition thereof and given one of the two (2) the highest ratings by
at least one credit rating agency of recognized national standing;
(g) Investments in commercial paper given one of the two (2) highest
ratings by at least one credit rating agency of recognized national
standing and maturing not more than two hundred seventy (270) days from the
date of creation thereof;
(h) investments in any Person to which Capital Stock or substantially
all of assets of a member of the International Group is transferred or
contributed, but solely to the extent made by contribution of, or in
consideration of, such Capital Stock or assets, and no other property of
the Borrower or any Restricted Subsidiary; and
(i) equity Investments in members of the International Group, to the
extent of the interest of the Borrower and the Restricted Subsidiaries on
the date hereof. Investments shall be valued at cost less any net return of
capital through the sale or liquidation thereof or other return of capital
stock.
"RESTRICTED PAYMENT" shall mean and includes:
(a) any dividend or other distribution, direct or indirect, on account
of any shares of Capital Stock of the Borrower now or hereafter
outstanding, except a dividend payable solely in shares of common stock of
the Borrower or dividends on Borrower's convertible preferred stock
outstanding on the Closing Date pursuant to terms in effect on the Closing
Date or (subject to compliance with Section 8.1(e)) in Capital Stock of a
member of the International Group;
(b) dividend or other distribution, direct or indirect, on account of
any shares of Capital Stock of any Restricted Subsidiary, now or hereafter
outstanding, except:
(i) a dividend payable solely in shares of common stock of such
Restricted Subsidiary; or
(ii) to the extent that such dividend or distribution is,
directly or indirectly payable to the Borrower;
(c) any redemption, retirement, purchase or other acquisition, direct
or indirect, of any shares of Capital Stock or option or warrant for
Capital Stock of the
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Borrower now or hereafter outstanding (other than the retirement of options
or warrants by virtue of the exercise or conversion thereof into common
stock of Borrower);
(d) any redemption, retirement, purchase or other acquisition, direct
or indirect, of any shares of Capital Stock of any Restricted Subsidiary
now or hereafter outstanding, except to the extent that such redemption,
retirement, purchase or other acquisition is made from, and the payment in
respect of such redemption, retirement, purchase or other acquisition is
paid, directly or indirectly, to the Borrower;
(e) any payment, whether in respect of principal, premium, interest,
fees, expenses or otherwise, in respect of, or any redemption, retirement,
purchase or other acquisition, direct or indirect, of, any Indebtedness
owed by the Borrower or any Restricted Subsidiary to any Affiliate; and
(f) any Restricted Investment.
"RESTRICTED SUBSIDIARY" shall mean any present or future Subsidiary of
Borrower other than those in the International Group.
"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 NOTES" shall mean, collectively, the promissory notes
evidencing the Revolving Loans in the form attached hereto as EXHIBIT E, either
as originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or replaced.
"REVOLVING LOANS" shall mean, collectively, the revolving credit loans
made to Borrower by the Lenders pursuant to Section 2.1.
"REVOLVING LOAN 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, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section 2.3, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2, which amount shall include such Lender's Revolving Loans.
"REVOLVING PERIOD" shall mean the period during the term of the
Revolving Loans, commencing on the date hereof and ending on the occurrence of
(i) an Event of Default (unless waived or cured) or (ii) the Termination Date,
whichever first occurs.
"S & P" shall mean the Standard & Poor's Corporation and its
successors and assigns.
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"SECURITY AGREEMENT" shall mean, collectively, that certain Security
Agreement executed by the Obligors in favor of the Administrative Agent,
substantially in the form of EXHIBIT F attached hereto granting a Security
Interest to the Administrative Agent for the benefit of the Lenders in the
Collateral, as the same may be supplemented from time to time in substantially
the form of EXHIBIT G attached hereto, executed by all new Subsidiaries of the
Borrower, or as otherwise amended, modified, supplemented, restated or replaced
from time to time.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the Financing
Statements, the Assignments, the Collateral Assignments, the Consents of
Lessor, the Agreements Not to Encumber, and all other documents, agreements,
instruments, assignments, financing statements, certificates of title, notices,
returns and other security instruments and records, however described or
denominated, now or hereafter created or existing, pledging or evidencing any
pledge of any property or assets, however described, to secure any or all of the
Obligations.
"SECURITY INTEREST" shall mean the security interest granted to the
Administrative Agent, on behalf of the Lenders, in the Collateral pursuant to
the Security Documents.
"SUBORDINATED DEBT" shall mean 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 Notes, the Security
Documents and the Guaranty Agreements 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:
(a) organized under the laws of the United States of America or any
jurisdiction thereof, Canada, any nation which is a member of the
European Economic Community or any nation in Latin America;
(b) that conducts substantially all of its business and has
substantially all of its tangible assets within the United States
of America or any jurisdiction thereof, Canada, any nation which
is a member of the European Economic Community or any nation in
Latin America; and
(c) at least fifty percent (50%) of each class of the voting stock
of which, and (other than in the case of a member of the
International
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Group) one hundred percent (100%) of all of the stock and equity
securities (except for voting stock that is not in any manner
preferred in payments of dividends or liquidation) of which, is
legally and beneficially owned by any one or more of Borrower and
its Wholly-Owned Subsidiaries.
"SYNDICATION AGENT" shall mean Bank of America, FSB, as syndication
agent and each successor syndication agent.
"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, 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").
"TERMINATION DATE" shall mean April 6, 2001 or such later date as may
be approved pursuant to Section 2.4.
"TOTAL COMMITMENT" shall mean the sum of the Lenders' Commitments as
such Total Commitment may be reduced by voluntary reduction, prepayment or
nonrenewal of a Lender's Commitment as provided herein.
"TOTAL DEBT" shall mean, with respect to the Consolidated Companies on
a consolidated basis, (a) any obligation for borrowed money; (b) any obligation
evidenced by bonds, debentures, notes or other similar instruments; (c) any
obligation to pay the deferred purchase price of property or for services (other
than in the ordinary course of business); (d) any Capitalized Lease Obligation;
(e) any obligation or liability of others secured by a Lien on property owned by
the Borrower or such Subsidiary, whether or not such obligation or liability is
assumed; (f) any obligation under any interest hedge agreement or foreign
exchange agreement; and (g) any letter of credit issued for the account of the
Borrower or such Subsidiary.
"TOTAL DEBT TO EBITDA RATIO" shall mean the ratio of Total Debt to
EBITDA.
"TOTAL SENIOR DEBT" shall mean the outstanding principal balance of
the Loans plus any Debt which is not Subordinated Debt.
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"TOTAL SENIOR DEBUT TO EBITDA RATIO" shall mean the ratio of Total
Senior Debt to EBITDA.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances or LIBOR Advances.
"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 a
Person either directly or indirectly.
SECTION 1.3. 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 1.4. OTHER DEFINITIONAL PROVISIONS.
(a) Except as otherwise specified herein, references herein to any
agreement or contract defined or referred to herein shall be deemed a
reference to any such agreement or contract (and in the case of any
instrument, any other instrument issued in substitution therefor) as the
terms thereof may have been or may be amended, supplemented, waived or
otherwise modified from time to time.
(b) 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.
(c) The singular pronoun, when used in this Agreement, shall include
the plural and neuter shall include the masculine and the feminine.
(d) All terms defined in this Agreement shall have the defined
meanings when used in any Note or, except as otherwise expressly stated
herein, any certificate, opinion, or other document delivered pursuant
hereto.
SECTION 1.5. EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
hereto are by reference made a part hereof.
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ARTICLE 2.
REVOLVING LOANS
SECTION 2.1. COMMITMENT; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set forth,
each Lender severally agrees from time to time on and after the Closing
Date, but during the Revolving Period, to make the Revolving Loans as
provided in this Section. Borrower shall be entitled to repay and reborrow
Revolving Loans in accordance with the provisions hereof.
(b) The sum of the aggregate unpaid principal amount of any Lender's
Revolving Loans outstanding shall not exceed at any time such Lender's
Revolving Loan Commitment.
(c) The sum of the aggregate unpaid principal amount of all Revolving
Loans shall not exceed at any time the total Revolving Loan Commitment for
all Lenders.
(d) 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 Base Rate Advances or LIBOR Advances. The aggregate
principal amount of each Borrowing of Revolving Loans comprised of LIBOR
Advances shall be not less than $500,000 or a greater integral multiple of
$100,000. The aggregate principal amount of each Borrowing of Revolving
Loans comprised of Base Rate Advances shall be not less than $1,000,000 or
greater integral multiples of $100,000. At no time shall the number of
Borrowings of Revolving Loans comprised of LIBOR Advances outstanding under
this Article exceed six (6); provided that, for the purpose of determining
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 of the Lenders as a
group shall not exceed the sum of the Revolving Loan Commitments for each
Lender, (ii) no Lender shall be obligated to make Revolving Loans in excess
of the Revolving Loan Commitment of such Lender, (iii) at no time will the
principal amount outstanding and/or requested for the acquisition of
Equipment by the Obligors exceed Fifteen Million and no/100s Dollars
($15,000,000.00), and (iv) at no time shall the Letter of Credit
Obligations exceed Two Million and no/100s Dollars ($2,000,000.00).
(e) The proceeds of Revolving Loans shall be used solely to repay the
Refinanced Indebtedness on the Closing Date, for working capital and for
other general corporate purposes, including acquisitions, capital
expenditures and equipment purchases of the Borrower and the Restricted
Subsidiaries and advances to members of the International Group which shall
comprise Restricted Payments. On the Closing Date
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proceeds of the Revolving Loans will be advanced to repay the Refinanced
Indebtedness in full.
SECTION 2.2. NOTES: REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and interest on,
the Revolving Loans to each Lender shall be evidenced by the records of the
Administrative Agent and such Lender and by the Revolving Credit Note
payable to such Lender (or the assignor of such Lender) completed in
conformity with this Agreement.
(b) All outstanding principal amounts under the Revolving Loans shall
be due and payable in full on the earlier of the Final Maturity Date or the
Termination Date.
SECTION 2.3. VOLUNTARY REDUCTION OF REVOLVING LOAN COMMITMENTS. Upon at
least five (5) 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 shall be in an amount of at
least $1,000,000 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 for the ratable account of the Lenders by an amount equal to such excess,
together with all accrued but unpaid interest on such excess amount and any
amounts due under Section 4.12 hereof
SECTION 2.4. EXTENSION OF COMMITMENT. During the last forty-five (45)
calendar days prior to the Termination Date then in effect, the Borrower may
deliver to the Administrative Agent the Borrower's written request for a ninety
(90) day extension of such Termination Date substantially in the form of EXHIBIT
H hereto. The Administrative Agent, upon the consent of all the Lenders, shall
use its best efforts to respond in writing to the Borrower's request (whether
affirmatively by countersigning and returning such request to the Borrower, or
negatively by advising the Borrower that such extension will not be granted)
within thirty (30) days after the Administrative Agents receipt of such request;
PROVIDED, HOWEVER, the Administrative Agent shall have no obligation to grant
such extension and may decline to do so in its sole discretion, and FURTHER
PROVIDED, that the failure of the Administrative Agent to respond to the
Borrower's request shall be deemed to be a negative reply to the request for an
extension.
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ARTICLE 3.
LETTERS OF CREDIT
SECTION 3.1. LETTERS OF CREDIT.
(a) Subject to and upon the terms and conditions herein set forth, the
Administrative Agent agrees from the Closing Date to the date which is
thirty (30) days prior to the Termination Date, to issue for the account of
the Borrower or the joint account of the Borrower and any Guarantor,
Letters of Credit, and each Lender shall thereupon be deemed to have
purchased a participation in each such Letter of Credit as provided in
Section 3.4. Each Letter of Credit shall, except as otherwise expressly set
forth in this Agreement, be a part of the Revolving Loan Commitments of
each Lender according to its Pro Rata Share.
(b) STANDBY LETTERS OF CREDIT. Each standby Letter of Credit shall (i)
have an expiration date not later than the earlier of (A) one (1) year
after the date of issuance of such Letter of Credit (which may include any
provision providing for automatic extension of the term of such Letter of
Credit for an additional period of time beyond one (1) year after the date
of issuance) or (B) 30 days prior to the Termination Date, and (ii) be used
for any corporate purpose allowed under this Agreement, including, without
limitation, to secure any surety bond or any self-insurance program of the
Borrower. Letters of Credit shall not be deemed to be outstanding Revolving
Loans unless drawn upon but shall be deemed to be outstanding Indebtedness
for purposes of any financial covenants in Section 7.8. At no time, without
the prior written consent of the Administrative Agent and the Required
Lenders, shall the aggregate amount of all standby Letter of Credit
Obligations issued hereunder exceed $2,000,000.00. The amount of Letters of
Credit issued shall reduce the available Revolving Loan Commitments of each
Lender by a portion of the aggregate face amount of the Letters of Credit
equal to that Lender's Pro Rata Share.
(c) MANNER OF ISSUANCE. The Borrower shall submit to the
Administrative Agent for each Letter of Credit a Letter of Credit
Application in the Administrative Agent's standard form prior to noon (Ft.
Lauderdale, Florida time) at least two Business Days before the requested
date of issuance of a Letter of Credit. Said Letter of Credit Application
shall be deemed to be a Notice of Borrowing by the Borrower. The right of
the Borrower to obtain any Letters of Credit shall be subject to the same
terms and conditions as the right of the Borrower to obtain any other
Advance under this Agreement. The Administrative Agent shall give each
Lender a written (which may be by telecopier) report of all Letters of
Credit outstanding hereunder on a monthly basis. In the event there is a
conflict between any provision in the Letter of Credit Application and this
Agreement, the terms and provisions of this Agreement will prevail.
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SECTION 3.2. DRAWINGS UNDER LETTERS OF CREDIT.
(a) Upon receipt by the Administrative Agent of any draft upon, or
other notice of drawing under, a Letter of Credit, the Administrative Agent
shall promptly give the Borrower written or telephone notice of the amount
of such draft, of the Letter of Credit against which it is drawn and of the
date upon which the Administrative Agent proposes to honor such draft.
(b) Subject to the following sentence, the Borrower shall pay to the
Administrative Agent, as a reimbursement obligation under the Letter of
Credit Application, for the ratable account of the Lenders the amount of
each drawing under a Letter of Credit on the date of such drawing. Subject
to the requirement contained in Section 2.1, the Borrower may elect to
repay the amount of such drawing with the proceeds of a Revolving Loan by
delivering a Notice of Borrowing complying with Section 4.1 hereof. At the
time any Letter of Credit is drawn upon the Lenders shall be deemed to have
purchased from the Administrative Agent a participation in the
reimbursement obligation of the Borrower, according to each Lender's Pro
Rata Share.
(c) The amount of any drawing under a Letter of Credit that is not
paid on the date of drawing pursuant to paragraph (b) of this Section shall
bear interest, payable on demand, from the date of such drawing until paid,
at a rate per annum equal to the Default Rate for a Base Rate Advance on
the date of such drawing.
(d) The Borrower agrees that it shall be indebted to each Lender in an
amount equal to the amount of each drawing paid by the Administrative Agent
for the account of such Lender in accordance with the provisions of this
Section.
SECTION 3.3. GENERAL PROVISIONS AS TO LETTERS OF CREDIT.
(a) LIMITATION ON ADMINISTRATIVE AGENT'S DUTY TO ISSUE LETTERS OF
CREDIT. The Administrative Agent shall have no obligation to issue any
Letter of Credit if (i) the aggregate undrawn face amount of Letters of
Credit outstanding, after giving effect to the issuance of such Letter of
Credit, would exceed any limit imposed on the Administrative Agent or any
Lender by, or if the issuance of such Letter of Credit would otherwise
cause a violation of, applicable law or any regulatory directive,
interpretation or request, to which the Administrative Agent or such Lender
is subject or such issuance thereof would exceed the limits provided in
Section 2.1, or 3.1(b) above.
(b) BORROWER'S OBLIGATION ABSOLUTE. The obligation of the Borrower to
reimburse the Administrative Agent for the account of the Lenders, for each
drawing under a Letter of Credit shall be irrevocable, shall not be subject
to any qualification or exception whatsoever and shall be binding in
accordance with the terms and conditions of
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this Agreement under all circumstances, including, without limitation the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or right which
the Borrower may have at any time against a beneficiary of any Letter
of Credit or any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative Agent, the
Lenders or any other Person, whether in connection with this
Agreement, or any Letter of Credit, the transactions contemplated
herein or any unrelated transactions;
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient (unless, in each case, manifestly so) in any respect
or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement or the
other Credit Documents;
(v) any failure of the Administrative Agent to provide notice to
the Borrower of any drawing under any Letter of Credit; or
(vi) the occurrence or continuance of any Default.
(c) LIMITATION OF LIABILITY WITH RESPECT TO LETTERS OF CREDIT. As
among the Borrower, any Guarantors, the Lenders, and the Administrative
Agent, the Borrower and the Guarantors assume all risks of the acts and
omissions of, or misuse of any Letter of Credit by, the beneficiaries of
such Letter of Credit. Without limiting the foregoing, neither the
Administrative Agent nor the Lenders shall be responsible for:
(i) subject to subparagraph (iii) of this paragraph (c), the
form, validity, sufficiency, accuracy, genuineness or legal effect of
any draft, demand, application or other documents submitted by any
party in connection with any Letter of Credit (but not including the
Letter of Credit itself), even if such document should in fact prove
to be in any and all respects invalid, insufficient, inaccurate,
fraudulent or forged;
(ii) the validity, genuineness or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter
of
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Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason;
(iii) failure of the beneficiary of a Letter of Credit to comply
fully with the conditions required in order to draw upon such Letter
of Credit to the extent that the documents presented in connection
with a drawing manifestly comply with the terms of the Letter of
Credit;
(iv) errors, omissions, interruptions or delays in transmission
or delivery of any messages by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher;
(v) errors in interpretations of technical terms;
(vi) any loss or delay in the transmission or otherwise of any
document required to make a drawing under any Letter of Credit or with
respect to the proceeds thereof;
(vii) the misapplication by the beneficiary of a Letter of Credit
of the proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control of
the Administrative Agent or the Lenders, including, without
limitation, any act or omission, rightfully or wrongfully of, any
present or future governmental authority.
None of the above circumstances shall affect, impair or prevent the vesting
of any of the Administrative Agent's and the Lenders' rights or powers
under this Section.
SECTION 3.4. PARTICIPATION IN LETTERS OF CREDIT.
(a) Simultaneously with the issuance by the Administrative Agent of
any Letter of Credit, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Administrative Agent
without recourse or warranty, an undivided interest and participation in
such Letter of Credit (including, without limitation, all obligations of
the Borrower with respect thereto) and any security therefor or Guaranty
thereto, equal to such Lender's Pro Rata Share of such Letter of Credit.
(b) Each Lender hereby agrees that it shall pay to the Administrative
Agent, prior to 1:00 P.M. (Eastern Time) on the date of each Letter of
Credit drawing such Lender's Pro Rata Share of such Letter of Credit
drawing; PROVIDED, that if the Borrower should pay in full or in part any
Letter of Credit drawing on the date thereof with the proceeds of a
Revolving Loan, the obligation of each Lender to pay to the Administrative
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Agent pursuant to this Section with respect to such drawing shall be
reduced by an amount equal to such Lender's Pro Rata Share of such payment
by the Borrower that is received by the Administrative Agent. Amounts paid
in excess of the net amount so owed shall promptly be refunded by the
Administrative Agent to such Lender.
(c) The obligation of each Lender to pay to the Administrative Agent
its Pro Rata Share of each Letter of Credit drawing, or of the amount
thereof not repaid by the Borrower as described above, shall be
irrevocable, unconditional, shall not be subject to any qualification or
exception whatsoever and shall be binding in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower or any Lender may have at any time against the
other, the Administrative Agent, any Lender or any other Person,
whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transactions;
(iii) any draft or any other document presented under this
Agreement proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect, provided the documents presented in connection with a drawing
manifestly comply with the terms of the Letter of Credit;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement; or
(v) the occurrence or continuance of any Default
(d) If any Lender shall fail to pay the amount of its participation in
a Letter of Credit drawing on the date such amount is due in accordance
with subparagraph (b) above, the Administrative Agent shall be deemed to
have advanced finds on behalf of such Lender. Each such advance shall be
secured by such Lender's participation interest, and the Administrative
Agent shall be subrogated to such Lender's rights hereunder in respect
thereof. Such advance may be repaid by application by the Administrative
Agent of any payment which such Lender is otherwise entitled to receive
under this Agreement. Any amount not paid by such Lender to the
Administrative Agent hereunder shall bear interest for each day from the
day such payment was due until such payment shall be paid in full at a rate
per annum equal to the highest rate then payable by the Borrower under this
Agreement.
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ARTICLE 4.
GENERAL LOAN TERMS
section 4.1. FUNDING NOTICES.
(a) Whenever Borrower desires to make a Borrowing with respect to the
Revolving Loan Commitments (other than one resulting from a conversion or
continuation pursuant to Section 4.1(b)), it shall give the Administrative
Agent prior written notice (or telephonic notice promptly confirmed in
writing) of such Borrowing (a "Notice of Borrowing"), such Notice of
Borrowing to be given prior to 11:00 A.M. (local time for the
Administrative Agent) at its Payment Office (i) on the requested date of
such Borrowing in the case of Revolving Loans comprised of Base Rate
Advances, and (ii) three Business Days prior to the requested date of
such Borrowing in the case of LIBOR Advances. Notices received after 11:00
A.M. 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), whether the Borrowing is to consist of Base Rate Advances or LIBOR
Advances and, in the case of LIBOR Advances, the Interest Period to be
applicable thereto.
(b) Whenever Borrower desires to convert all or a portion of an
outstanding Borrowing under the Revolving Loans, which Borrowing consists
of Base Rate Advances or LIBOR Advances, into one or more Borrowings
consisting of Advances of another Type, or to continue outstanding a
Borrowing consisting of LIBOR 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 LIBOR Advances. Such notice
(a "Notice of Conversion/Continuation") 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
Conversion/Continuation 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, whether the Advances are being
converted into or continued as LIBOR Advances and, in the case of LIBOR
Advances, 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 Conversion/Continuation, 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 Default or Event
of Default shall have occurred and be continuing, no Borrowing may be
converted into or continued (upon expiration of the current Interest
Period) as LIBOR Advances. No conversion of any Borrowing of LIBOR Advances
shall be permitted except on the last day of the Interest Period in
respect thereof.
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(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 reasonably
believed by the Administrative Agent or the Lender in good faith to be from
Borrower prior to receipt of written confirmation.
(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 with respect to the Revolving
Loan Commitments.
SECTION 4.2. DISBURSEMENT OF FUNDS.
(a) No later than 1:00 P.M. (local time for the Administrative Agent)
on the date of each Borrowing pursuant to the Revolving Loan Commitments
(other than one resulting from a conversion or continuation pursuant to
Section 4.1(b)), 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 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) Unless the Administrative Agent shall have been notified by any
Lender prior to the date of a Borrowing that such Lender does not intend to
make available to the Administrative Agent such Leader'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 such
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 Agents 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 Commitments hereunder or to prejudice any rights which
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
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(c) All Borrowings under the Revolving Loan shall be loaned by the
Lenders on the basis of their Pro Rata Share of the Revolving Loan
Commitments. 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 Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to fund its Commitments hereunder.
SECTION 4.3. INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Revolving 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
for; actual days elapsed for LIBOR Advances and on the basis of a 365 day
year for actual days elapsed for Base Rate Advances) equal to the
applicable rates indicated below:
(i) For Revolving Loan. Base Rate Advances--The Base Rate in
effect from time to time plus the Applicable Margin; and
(ii) For Revolving Loan LIBOR Advances--The applicable LIBOR
plus the Applicable Margin.
(b) Overdue principal (whether by non-payment at scheduled due date,
acceleration, notice of prepayment or otherwise) and, to the extent not
prohibited by applicable law, overdue interest, in respect of the Revolving
Loans and all other overdue amounts owing hereunder, shall bear interest
from each date that such amounts are overdue at the Default Rate.
(c) Interest on each Loan shall accrue from and including the date of
such Loan to but excluding the date of any repayment thereof, that, if a
Loan is repaid on the same day made, one day's interest shall be paid on
such Loan. Interest on all outstanding Base Rate Advances shall be payable
monthly in arrears on the last calendar day of each calendar month.
Interest on all outstanding LIBOR Advances shall be payable on the last day
of each Interest Period applicable thereto, and, in the case of LIBOR
Advances having an Interest Period in excess of three months, on each day
which occurs every 3 months after the initial date of such Interest Period.
Interest on all Loans shall be payable on any conversion of any Advances
comprising such 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.
SECTION 4.4. INTEREST PERIODS. In connection with the making or
continuation of, or conversion into, each Revolving Loan comprised of LIBOR
Advances, Borrower shall select an Interest Period to be applicable to such
LIBOR Advances; provided that:
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(a) The initial Interest Period 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;
(b) 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 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;
(c) Any Interest Period 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 (d) below, expire on the last
Business Day of such calendar month;
(d) No Interest Period shall extend beyond the Termination Date.
SECTION 4.5. FEES.
(a) Borrower shall pay to the Administrative Agent on the Closing Date
in accordance with the Fee Letter, for the account of and distribution to
each Lender, a commitment fee equal to one quarter of one percent (.25%)
of the aggregate amount of the Revolving Loan Commitments.
(b) Borrower shall pay to the Administrative Agent in accordance with
the Fee Letter, for the account of and distribution to the Lenders, a
commitment fee, computed at an annual rate equal to that shown as the
Commitment Fee on the grid incorporated into the definition of Applicable
Margin, on the average daily unused portions of the Revolving Loan
Commitment of each Lender, such fee being payable quarterly in on the last
calendar day of each fiscal quarter of Borrower and on the Termination
Date.
(c) At the beginning of each fiscal quarter of Borrower, Borrower
shall pay to the Administrative Agent, for the account of and distribution
to each Lender, Lender's Pro Rata Share of a letter of credit fee equal to
the aggregate face amount of the Letters of Credit then outstanding and
undrawn times an annual rate equal to the Applicable Margin for LIBOR Loans
on that date.
(d) In addition to the foregoing fees, the Borrower shall pay to the
Administrative Agent, for the Administrative Agent's account, such other
administrative fees as may be customary in respect of Letter of Credit
transactions together with all telecommunication fees and other expenses
incurred by the Administrative Agent in connection with the issuance or
honoring of any Letter of Credit issued for the Borrower's or Borrower's
and any Guarantor's joint account.
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SECTION 4.6. 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 $100,000 or any greater integral multiple of $100,000,
by paying the principal amount to be prepaid together with interest accrued
and unpaid thereon to the date of prepayment. Those Borrowings consisting
of LIBOR Advances may be prepaid, at Borrower's option, in whole, or from
time to time in part, in the respective minimum amounts set forth in this
Section 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 4.12 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
4.6(c) below.
(b) Borrower shall give written notice (or telephonic notice confirmed
in writing) to the Administrative Agent of any intended prepayment of the
Revolving Loans (i) not less than one Business Day prior to any prepayment
of Base Rate Advances, and (ii) not less than three Business Days prior to
any prepayment of LIBOR Advances. 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
4.6(a) may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid, provided that (i) if any prepayment of
LIBOR 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 $500,000, 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 Loans comprising such
Borrowing. All voluntary prepayments shall be applied to the payment of any
unpaid interest before application to principal.
SECTION 4.7. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all payments
under this Agreement and the other Credit Documents shall be made without
defense, set-off or counterclaim to the Administrative Agent, not later
than 1:00 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.
(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
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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 Notes and other Credit Documents, after
withholding or deduction for or on account of any such Taxes (including
additional sums payable under this Section), 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 or any State thereof
(including the District of Columbia) 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.
(c) Except as otherwise provided in Section 4.4, whenever any payment
to be made hereunder or under any 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
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and, with respect to payments of principal, interest thereon shall be
payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis
of a year of 360 days for the actual number of days elapsed for LIBOR
Advances and 365 days for Base Rate Advances (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).
Interest on Base Rate Advances shall be calculated based on the Base Rate
from and including the date of such Loan to but excluding the date of the
repayment or conversion thereof. Interest on LIBOR 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 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 4.8. INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that
the Administrative Agent 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 LIBOR for any
Interest Period, by reason of any changes arising after the date of this
Agreement adequate and fair means do not exist for ascertaining LIBOR 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 Revolving Loans to remain outstanding past the
last day of the then current Interest Periods as LIBOR Advances shall be
suspended, and such affected Advances shall bear the same interest as Base Rate
Advances.
SECTION 4.9. ILLEGALITY.
(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 all parties) at any time that
the making or continuance of any LIBOR Advance has become unlawful or
impractical 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).
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(b) 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 LIBOR Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of LIBOR
Advances as a Base Rate Advance, which Base Rate Advance shall, for all
other purposes, be considered part of such Borrowing, and (ii) if the
affected LIBOR 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 a Base Rate Advance or Base Rate Advances, 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.
SECTION 4.10. INCREASED COSTS.
(a) If, by reason of (i) 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 (ii) 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):
(1) any Lender (or its applicable Lending Office) shall be
subject to any tax, duty or other charge with respect to its LIBOR
Advances or its obligation to make LIBOR Advances, or the basis of
taxation of payments to any Lender of the principal of or interest on
its LIBOR Advances or its obligation to make LIBOR 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
(2) 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 LIBOR Advances or its obligation to make LIBOR Advances
shall be imposed on any Lender or its applicable Lending Office or the
London interbank market or the United States secondary certificate of
deposit 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 LIBOR
Advances, or there shall be a reduction in the amount received or
receivable by such Lender or its applicable Lending Office with
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respect to LIBOR Advances, then Borrower shall from time to time (subject,
in the case of certain Taxes, to the applicable provisions of Section
4.7(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 Leader shall advise the Administrative Agent that at any
time, because of the circumstances described in clauses (i) or (ii) in
paragraph (a) above or any other circumstances beyond such Lender's control
arising after the date of this Agreement affecting such Lender or the
London interbank market or such Lender's position in such market, LIBOR as
determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Lender of funding its LIBOR 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 Loans to remain outstanding past the
last day of the then current Interest Periods as LIBOR Advances shall
be immediately suspended; and
(iii) such Lender shall make a Loan as part of the requested
Borrowing of LIBOR Advances as a Base Rate Advance, which such Base
Rate Advance shall, for all other purposes, be considered part of such
Borrowing.
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SECTION 4.11. 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
LIBOR Advances affected by the matters or circumstances described in
Sections 4.7(b), 4.8, 4.9 or 4.10 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 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 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 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
4.7(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 4.7(b) or
otherwise result in any liability of such Lender.
SECTION 4.12. 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 LIBOR Advances, in either case to the
extent not recovered by such Lender in connection with the reemployment 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, LIBOR Advances to Borrower does not occur on
the date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section 4.9(b))
of any LIBOR 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 LIBOR Advances when required by the
terms of this Agreement.
SECTION 4.13.. ASSUMPTIONS CONCERNING FUNDING OF LIBOR ADVANCES.
Calculation of all amounts payable to a Lender under this Article 4 shall be
made as though that Lender had actually funded its relevant LIBOR Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Advances in an amount equal to the
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amount of the LIBOR Advances and having a maturity comparable to the relevant
Interest Period and through the transfer of such LIBOR 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 LIBOR
Advances in any manner it sees fit and the foregoing assumption shall be used
only for calculation of amounts payable under this Article 4.
SECTION 4.14. APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
payments in respect of Loans and payments in respect of commitment fees shall be
apportioned among all outstanding Commitments and Loans to which such payments
relate, proportionately to the Lenders' respective Pro Rata Share of such
Commitments and outstanding 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 4.15. 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 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 4.16. 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 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 (taking into consideration such Lender's
policies with respect to capital adequacy) by
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an amount 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 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 (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 4.17. BENEFITS TO GUARANTORS. In consideration for the execution
and delivery by the Guarantors of their Guaranty Agreements, Borrower agrees to
make the benefit of extensions of credit hereunder available to the Guarantors.
SECTION 4.18. RETURN OF PAYMENTS. If the Administrative Agent shall be
required by any court, trustee or debtor-in-possession or other person to return
any amount previously received by it in respect of the obligations under this
Agreement, upon receipt of notice from it, each Lender shall immediately pay
over to it, such Lender's Pro Rata Share of the amount to be returned.
ARTICLE 5.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower hereunder is
subject to the satisfaction of the following conditions:
SECTION 5.1. CONDITIONS PRECEDENT TO INITIAL LOANS. At the time of the
making of the initial Loans hereunder on the Closing Date, all obligations of
Borrower hereunder incurred prior to the initial Loans (including, without
limitation, Borrower's obligations to reimburse the reasonable fees and expenses
of counsel to the Administrative Agent and the Syndication 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 Guaranty Agreements;
(d) the duly executed Security Documents;
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(e) certificate of Borrower in substantially the form of attached
hereto and appropriately completed;
(f) 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;
(g) 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, and (ii) the
articles of incorporation and the bylaws or comparable governing documents
of such entities;
(h) certified copies of the certificate or articles of incorporation
of each Credit Party certified by the Secretary of State of the
jurisdiction of incorporation or organization of such Credit Party,
together with 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;
(i) 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;
(j) agreement by the lender of the Refinanced Indebtedness to accept
payment in full of all obligations outstanding under the Refinanced
Indebtedness and termination of all credit facilities relating thereto and
to release all Liens securing such obligations;
(k) certified copies of the documents evidencing and/or securing the
intercompany Loans, to the extent that they exist;
(1) the duly executed copy of the Contribution Agreement by the
Borrower and the Guarantors, in the form attached hereto as Exhibit C.
(m) certified copies of uniform commercial code searches, tax lien
searches, judgment lien searches, and other searches as the Administrative
Agent may require, on the Obligors, reflecting no Liens against the
Obligors or any of the Collateral, other than those to be paid in fall as a
result of the closing of the Loans and Permitted Liens;
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(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 8.1(b);
(o) 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;
(p) duly executed Consents of Lessor of each existing landlord of any
Obligor;
(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 matters relating to employees of the Consolidated
Companies, including employee relations, collective bargaining agreements,
Plans, and other compensation and employee benefit plans;
(r) 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 under Environmental Laws
which could reasonably be expected to have a Material Adverse Effect;
(s) 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, patent infringement and other claims) pending or threatened
against the Consolidated Companies;
(t) a summary, set forth in format and detail reasonably acceptable to
the Administrative Agent, of the types and amounts of insurance (property
and liability) maintained by the Consolidated Companies;
(u) the opinion of Holland & Knight, LLP, counsel to the Credit
Parties, substantially in the form of Exhibit J addressed to the
Administrative Agent and each of the Lenders and otherwise acceptable to
Administrative Agent and each of the Lenders;
(v) certification that there has been no material adverse change in
the financial condition or operations of the Consolidated Companies since
the most recent financial statements delivered to the Lenders prior to the
Closing Date;
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(w) financial statements of Borrower and its Subsidiaries, on a
consolidated basis, for the most recently completed fiscal year; and
(x) payment of fees and costs due on the Closing Date.
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 Loans are made hereunder:
(y) payment in full and termination of the Refinanced Indebtedness and
the release of any Liens securing the same; provided, however, the
following indebtedness may remain outstanding: (i) all Capitalized Lease
Obligations described on Schedule 6.7; and (ii) Permitted Debt described on
Schedule 8.1(b);
(z) the 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;
(aa) 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
(bb) the status of all pending and threatened litigation (including
products liability and patent claims) described on Schedule 6.5, 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 5.2. CONDITIONS TO ALL LOANS. At the time of the making of all
Loans (before as well as after giving effect to such Loans and to the proposed
use of the proceeds thereof), the following conditions shall have been satisfied
or shall exist:
(a) the outstanding balance of the Loans and Letters of Credit does
not exceed the aggregate Commitments of the Lenders;
(b) there shall exist no Default or Event of Default;
(c) 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 Loans;
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(d) since the date of the most recent financial statements of the
Consolidated Companies described in Section 6.3, there shall have been no
change which has had or could reasonably be expected to have a Material
Adverse Effect;
(e) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
Borrower, threatened (1) which reasonably could be expected to have a
Material Adverse Effect, or (ii) seeking to prohibit or restrict one or
more Credit Parties ownership or operation of any portion of its business
or assets, or to compel one or more Credit Parties to dispose of or hold
separate all or any portion of its businesses or assets, where such portion
or portions of such businesses or assets, as the case may be, constitute
a material portion of the total businesses or assets of the Consolidated
Companies;
(f) the 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
(g) the Administrative Agent shall have received such other
documents, including, but not limited to a properly completed Notice of
Borrowing, 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 Loans comprising such Borrowing, that the applicable conditions
specified in Sections 5.1 and 5.2 have been satisfied.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
SECTION 6.1. 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 Material 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,
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for each Subsidiary as of the date of this Agreement is accurately described on
Schedule 6.1. Schedule 6.1 also designates all Subsidiaries of the Borrower as
of the Closing Date.
SECTION 6.2. 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 6.3. FINANCIAL STATEMENTS. Borrower has furnished Lenders with the
following financial statements, certified by the Chief Financial Officer of
Borrower: audited consolidated balance sheet of the Borrower and its
Subsidiaries as at October 31, 1997, and audited consolidated statement of
income and consolidated statement of stockholders' equity of Borrower and its
Subsidiaries for the fiscal year ended on such date certified by Ernst & Young
LLP, Certified Public Accountants. Such financial statements (including any
related schedules and notes) are true and correct in all material respects, 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 October 31, 1997.
SECTION 6.4. TAX RETURNS. Except as set forth on Schedule 6.4, each of
Borrower and its Subsidiaries has filed all federal, state and other tax returns
and reports 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 all other taxes, assessments, fees and other
governmental charges upon Borrower or any of its Subsidiaries or upon any of the
properties, assets, incomes or franchises of Borrower or any of its
Subsidiaries, to the extent that such taxes, assessments, fees and other
governmental charges 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. The Borrower and its Subsidiaries have and
will establish all necessary reserves and make all payments required of them to
be set aside or made in regard to all F.I.C.A., withholding, sales or excise and
all other similar federal, state and local taxes.
SECTION 6.5. ACTIONS PENDING. Except as disclosed on Schedule 6.5 hereto,
there is no action, suit, investigation or proceeding pending or, to the
knowledge of Borrower, threatened
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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 could reasonably be expected to result in any Material
Adverse Effect.
SECTION 6.6. 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 are true and correct in all material
respects 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 6.7. TITLE TO PROPERTIES; CAPITALIZED LEASES. Each of Borrower and
its Subsidiaries has (i) good and marketable fee simple title to its respective
Real Estate (other than real property which it leases from others), including
such Real Estate reflected in the consolidated balance sheet of Borrower and its
Subsidiaries described in Section 6.3 above (other than Real Estate disposed of
in the ordinary course of business), subject to no Lien of any kind except
Permitted Liens 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 described in Section 6.3 above (other
than properties and assets disposed of in the ordinary course of business),
subject to no Lien of any kind except Permitted Liens. 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, including, without limitation, the Leases, 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. There are no Capitalized Lease
Obligations except as disclosed on Schedule 6.7 hereto.
SECTION 6.8. ENFORCEABILITY OF AGREEMENT. This is the legal, valid and
binding agreement of Borrower enforceable against Borrower in accordance with
its terms, and the Notes, and all other Credit Documents, when executed and
delivered, will be similarly legal, valid, binding and enforceable, except as
the enforceability of the 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 6.9. CONSENT. No consent, permission, authorization, order or
license of or filing with any governmental authority or Person which has not
been obtained or made is necessary in connection with the execution, delivery,
performance or enforcement of the Credit Documents by the Credit Parties, or in
order to constitute the indebtedness to be incurred hereunder and under the
Notes and the other Credit Documents as "Senior Debt" or any similar term
defined within each document evidencing Subordinated Debt.
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SECTION 6.10. USE of PROCEEDS; FEDERAL RESERVE REGULATIONS. The proceeds of
the Notes will be used solely for the purposes specified in Section 2.1 (e) 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 6.11. ERISA.
(a), IDENTIFICATION OF CERTAIN PLANS. SCHEDULE 6.11 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 (when taken as a whole) that will not have a materially
adverse effect on the Borrower and its Subsidiaries taken as a whole, or
upon their financial condition, assets, business, operations, liabilities
or prospects;
(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 Code, except such
liabilities (when taken as a whole) as will not have a materially adverse
effect on the Borrower and its Subsidiaries taken as a whole, or upon their
financial condition, assets, business, operations, liabilities or
prospects; and
(d) FUNDING. The Borrower and each ERISA Affiliate have made fall 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
Material 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 6.11. No Plan is subject to a waiver or extension of
the minimum funding requirements under ERISA or the Code, and no request
for such waiver OR extension is pending.
SECTION 6.12. SUBSIDIARIES.. As of the Closing Date, the only Subsidiaries
of the Borrower are those listed on SCHEDULE 6.1. All the outstanding shares
of stock of each Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such SCHEDULE
6.1, are owned by Borrower or a Wholly Owned Subsidiary of Borrower free of
any Lien or claim.
SECTION 6.13. OUTSTANDING INDEBTEDNESS. Except for the Refinanced
Indebtedness to be repaid and terminated on the Closing Date, and except as set
forth on SCHEDULE 6.13 as of the
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Closing Date and after giving effect to the transactions contemplated by this
Agreement, neither Borrower nor any of its Subsidiaries has outstanding any
Indebtedness except Permitted Debt and there exists no default, and, after
giving effect to the transactions contemplated in this Agreement, there will
exist no default under the provisions of any instrument evidencing such
Indebtedness or of any agreement relating thereto except as noted on SCHEDULE
6.13.
SECTION 6.14. CONFLICTING AGREEMENTS. Neither Borrower nor any of its
Subsidiaries is a party to any contract or agreement or subject to any charter,
bylaw 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 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 Notes, except for this Agreement, and those matters listed on
SCHEDULE 6.14 attached hereto.
SECTION 6.15. ENVIRONMENTAL MATTERS.
(a) Except as set forth on SCHEDULE 615(a), each of the Borrower and
its Subsidiaries has complied in all material respects (except for
instances of noncompliance that have been resolved prior to the Closing
Date) with all applicable Environmental Laws, including without
limitation, compliance With permits, licenses, standards, schedules and
timetables issued pursuant to Environmental Laws, 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 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 Material Adverse Effect.
(b) Except as set forth on SCHEDULE 6.15(b) neither the Borrower nor
any of its Subsidiaries has received a written request for information
under CERCLA or any
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analogous state law, or written notice that any such entity has been
identified as a potential responsible party under CERCLA, or any analogous
state 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 Environmental Law.
(c) Except as set forth on SCHEDULE 6.15(c), each of the Borrower and
its Subsidiaries has obtained all permits, licenses or other authorizations
which are material for the conduct of their respective operations under all
applicable Environmental Laws and each such authorization is in full force
and effect.
(d) Except as set forth in SCHEDULE 6.15(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.
SECTION 6.16. 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 6.17. PATENTS, TRADEMARKS, ETC.. Except as set forth on SCHEDULE
6.17 each of Borrower and its Subsidiaries owns or has the right to use all
patents, trademarks, service marks, trade names, copyrights, licenses,
franchises and other rights, which are necessary for the operation of its
business as presently conducted or proposed to be conducted without any known
conflict with the rights of others, and, in each case, subject to no mortgage,
pledge, lien, lease, encumbrance, charge, security interest, title retention
agreement or option. Each such asset or agreement is in full force and effect,
and the holder thereof has fulfilled and performed all of its obligations with
respect thereto. No event has occurred or exists which permits, or after notice
or lapse of time or both would permit, revocation or termination of any thereof,
or which materially, adversely affects or in the future may (to the knowledge of
any Executive Officer) materially adversely affect, the rights of such holder
thereof with respect thereto. No Executive Officer of any Obligor knows of any
license or franchise necessary to the operations of the business of the Borrower
and its Subsidiaries as now conducted or proposed to be conducted except those
which Borrower or one of its Subsidiaries owns or has the legal right to use. To
the knowledge of any Executive Officer (i) no product, process, method,
substance, part, piece of equipment 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 no
pending or threatened claim or litigation against or affecting Borrower or any
of its Subsidiaries contesting its right to
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sell or use any such product, process, method, substance, part, piece of
equipment or other material and (iii) there is no, or there is no pending or
proposed, 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 Borrower or
any of its Subsidiaries.
SECTION 6.18. 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 6.19. 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, assets, or financial condition of Borrower which has not been set
forth in this Agreement or in the Credit Documents, or in 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 6.20. INSURANCE COVERAGE. Each property of Borrower or any of its
Subsidiaries is insured 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. The form of policy, terms and insuring companies of all such
insurance shall at all times be acceptable to the Administrative Agent and the
Required Lenders.
SECTION 6.21. LABOR MATTERS. Except as set forth on SCHEDULE 6.21, 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 Material Adverse Effect, and, to
the best knowledge of Borrower's Executive Officers, there arc no such strikes,
disputes, slow downs or work stoppages threatened against Borrower or any of
Borrower's Subsidiaries. The hours worked and payments 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
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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 Material Adverse
Effect.
SECTION 6.22. INTERCOMPANY LOANS; DIVIDENDS. There are no Intercompany
Loans as of the Closing Date except those set forth on SCHEDULE 6.22. The
Intercompany Loans and the documents evidencing and securing the Intercompany
Loans, 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, except as
provided in Section 8.14, to pay dividends on capital stock.
SECTION 6.23. BURDENSOME RESTRICTIONS. Except as set forth on SCHEDULE
6,23, 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 Material Adverse Effect.
SECTION 6.24. SOLVENCY.. Each of the Consolidated Companies is solvent and
able to pay its debts as and when they accrue and are due.
SECTION 6.25. FIRST, PERFECTED SECURITY Interest IN COLLATERAL. The
Administrative Agent, for and in behalf of the Lenders, and the Lenders have a
first, perfected security interest in the Collateral to secure the Loans subject
to no other Liens except Permitted Liens.
SECTION 6.26. PLACES OF BUSINESS. The Places of Business identified in
SCHEDULE 6.26 hereof constitute all of the Places of Business for the Obligors.
SECTION 6.27. SECURITIES ACT. Neither Borrower nor any of its Subsidiaries
nor any agent acting on their behalf has, directly or indirectly, taken or will
take any action which would subject the issuance of the Notes to the
registration requirement of Section 5 of the Securities Act of 1933, as amended,
or to the registration, qualification or other similar provisions of any
securities or blue sky law of any applicable jurisdiction.
SECTION 6.28. COMPANY ACT; HOLDING COMPANY. Neither Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940 or
is a "holding company," or a subsidiary or affiliate of a "holding company," or
a "public utility," within the meaning of the Public Utility Holding Company Act
of 1935, as amended or a "public utility" within the meaning of the Federal
Power Act, as amended.
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SECTION 6.29. REGULATION G, ETC. Neither Borrower nor any of its
Subsidiaries nor any agent acting on their behalf has taken or will take any
action which might cause this Agreement or the Notes to violate Regulation G, T,
U, or X or any other regulation of the Board of Govenors of the Federal
Reserve System or to violate the Securities Exchange Act of 1934, in each case
as in effect now or as the same may hereafter be in effect.
SECTION 6.30. STOCK REDEMPTION Except as set forth in SCHEDULE 6.30, none
of the Borrower or any Subsidiary of the Borrower is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any of
its capital stock or any warrants, options or other securities or rights
directly or indirectly convertible into or exercisable or exchangeable for its
capital stock.
SECTION 6.31. CHANGES IN FINANCIAL CONDITION: ADVERSE DEVELOPMENTS. From
the date of the year end financial statements described in Section 6.3
hereinabove to the date of this Agreement, there has been, and to the date of
each Advance there will be, no change in the properties, assets, liabilities,
financial condition, business operations, affairs or properties of the Borrower
and its Subsidiaries on a consolidated basis from that set forth or reflected in
the year-end financial statements described in Section 6.3, other than changes
in the ordinary course of business, including acquisitions, none of which either
in any case or in the aggregate will have a Material Adverse Effect.
SECTION 6.32. INVESTMENTS. Except as set forth on SCHEDULE 6,32, none of
the Consolidated Companies has an Investment in any Person other than Borrower's
Subsidiaries.
SECTION 6.33. REAL ESTATE. Except as set forth on SCHEDULE 6.33, no Obligor
owns any real property.
SECTION 6.34. LEASES. Schedule 6.34 sets forth all Leases to which any
Obligor is a party.
SECTION 6.35. YEAR 2000 COMPLIANCE. The Borrower has conducted a
comprehensive review and assessment of the Borrower's computer applications and
made inquiry of the Borrower's key suppliers, vendors and customers with respect
to the "year 2000 problem" (that is, the risk that computer applications may not
be able to properly perform date-sensitive functions after December 31, 1999)
and based on that review and inquiry, the Borrower does not believe the year
2000 problem will result in a material adverse change in the Borrower's business
condition (financial or otherwise), operations, properties or prospects, or
ability to repay the Obligations.
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ARTICLE 7.
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 Notes it
will:
SECTION 7.1. CORPORATE EXISTENCE, ETC. Preserve and maintain, and cause
each of its 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
Material Adverse Effect.
SECTION 7.2. COMPLIANCE WITH Laws, ETC. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law including, without
limitation, the Environmental Laws, and Contractual Obligations applicable to or
binding on any of them where the failure to comply could reasonably be expected
to have a Material Adverse Effect.
SECTION 7.3. 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 7.4. 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 7.5. VISITATION, INSPECTION. Etc. Permit, and cause each of its
Subsidiaries to permit, any representative of the Administrative Agent or any
Leader 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 and further, provided,
that in the event any documents and records are subject to any contractual
confidentiality requirements with any Person, the right to make copies or
extracts therefrom shall be subject to the prior written consent of the
Borrower, which consent will not be unreasonably withheld.
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SECTION 7.6. 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 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. All liability policies shall name Administrative Agent
as an additional named insured, as its interests may appear. The hazard
insurance covering Collateral shall be in amounts and shall contain
co-insurance and deductible provisions approved by the Administrative
Agent; and shall name and directly insure the Administrative Agent, its
successors and assigns as secured party and loss payee under an endorsement
acceptable to Administrative Agent. Each policy must contain a provision
that Administrative Agent will receive 30 days' prior written notice of
expiration, cancellation, termination or modification of such policy.
(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.
SECTION 7.7. REPORTING COVENANTS. Furnish to each Lender:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within 90 days after the end of each fiscal year of Borrower, audited
financial statements, consisting of balance sheets of the Consolidated
Companies as at the end of such year, presented on a consolidated and
consolidating basis, and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal year,
presented on a consolidated and consolidating basis, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and
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accompanied by a report thereon of independent public accountants of
recognized national standing, which 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 and consolidating 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 and
consolidating financial statements has been made in accordance with GAAP;
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 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 and
consolidating 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 and consolidating 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
other authorized financial officer of Borrower acceptable to the
Administrative Agent and the Required Lenders 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 and consolidating 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) SEC AND OTHER REPORTS. As soon as available, and in any event
within fifteen (I 5) days thereafter:
(i) each financial statement, report notice or proxy statement
sent by Borrower to its shareholders generally;
(ii) each regular or periodic report (including, without
limitations each Form 10-K, Form 1O-Q and Form 8-K), any registration
statement which shall have become effective, and each final prospectus
and all amendments thereto filed by the Borrower or any Restricted
Subsidiary with the SEC;
(iii) all press releases and other statements made available by
the Borrower or any Restricted Subsidiary to the public concerning
material developments in the business of the Borrower or the
Restricted Subsidiaries; and
(iv) monthly reports for the Consolidated Companies on a
consolidated basis consisting of a consolidated and consolidating
balance sheet and income
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statement, accounts receivable aging report, work-in-process schedule
and accounts payable aging report, all in reasonable detail and
otherwise in form acceptable to the Administrative Agent and certified
by the Chief Financial Officer or other officer of Borrower acceptable
to the Administrative Agent.
(d) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the financial
statements required pursuant to subsections (a) and (b) above, a
certificate of the Treasurer, Chief Financial Officer or other authorized
financial officer of Borrower acceptable to the Administrative Agent and
the Required Lenders (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 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
the covenants contained in Section 7.8 and Sections 8.1, 8.2, 8.4 and 8.5;
(e) 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;
(f) 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 Material Adverse Effect, or (ii) actual
knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration, together with any information and
documentation relating thereto, as may be requested; notwithstanding
anything to the contrary contained in this subsection, the Borrower shall
promptly advise the Lenders, in writing, of the threatened or actual filing
of any litigation against Borrower or any of its Subsidiaries which
litigation may have a Material Adverse Effect or which may result in or
alleges damages of $1,000,000 or more;
(g) 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 violation, action, claim request, spill, leak, disposal, or
release could result in
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penalties, fines, claims or other liabilities which could reasonably be
expected to have a Material Adverse Effect on any Consolidated Company;
(h) 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 (1) 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 (2) 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 Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404 or 419 of
the Code, where any such taxes, penalties or liabilities exceed or
could exceed $250,000 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(a)(29) or 412 of the 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, or to impose any liability on such Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the 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
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statement of withdrawal liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof,
(i) 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 Permitted Liens;
(j) 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, if any, filed by it 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;
(k) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof, copies of all
financial statements 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;
(l) TRADEMARKS; LABOR DISPUTES, ETC. Promptly upon the existence or
occurrence thereof, notice of the existence or occurrence of (i) failure of
any Consolidated Company to hold in fall force and effect those material
trademarks, service marks, patents, trade names, copyrights, licenses,
franchises and similar rights necessary in the normal conduct of its
business, and (ii) any strike, labor dispute, slow down or work stoppage as
described in Section 6.2l;
(m) NEW SUBSIDIARIES. Within 30 days after the formation or
acquisition of any Subsidiary, or any other event resulting in the creation
of a new Subsidiary, notice of the formation or acquisition of such
Subsidiary or such occurrence, including a description of the assets of
such entity, the activities in which it will be engaged, and such other
information as the Administrative Agent may request, together with the
other documents required by Section 7.1 0;
(n) 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);
(o) CAPITALIZED LEASE OBLIGATIONS. Promptly upon the occurrence
thereof, notice and a complete description of any Capitalized Lease
Obligations entered into by any Consolidated Company; and
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(p) 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 7.8. FINANCIAL COVENANTS.
(a) FIXED CHARGE COVERAGE RATIO. Maintain as at the last day of each
fiscal quarter, a ratio of EBITDA to Fixed Charges of at least 1.50: 1.0,
computed on the basis of the four out of the immediately preceding five
fiscal quarters of Borrower selected by Borrower, based on information
contained in the Borrower's current financial statements and its financial
statements for the four quarters selected.
(b) TOTAL DEBT TO EBITDA RATIO. Maintain at all times, a maximum
ratio of Total Debt to EBITDA, of not more than 3.5:1.0 for the period of
four quarters most recently ended.
(c) TOTAL SENIOR DEBT TO EBITDA RATIO. Maintain as at the last day of
each fiscal quarter, a maximum ratio of Total Senior Debt to EBITDA of not
more than 3.0:1.0, computed on the basis of the four most recently
completed fiscal quarters of Borrower, based on information contained in
the Borrower's current financial statements and its financial statements
for the preceding four quarters.
(d) CONSOLIDATED NET WORTH. Maintain at all times, Consolidated Net
Worth of at least $20,000,000.00 plus (i) fifty percent (50%) of
Consolidated Net Income earned after October 31, 1997 (without deduction
for losses) determined at the end of each fiscal quarter of Borrower for
the quarter most recently ended, and (ii) one hundred percent (100%) of
the net proceeds of the sale of Capital Stock of any Consolidated Company.
(e) RESTRICTED PAYMENTS. On an annual basis no Obligor shall declare
or make any Restricted Payment unless the aggregate amount thereof for all
Obligors during the year does not exceed the sum of (a) the lesser of (i)
$1,000,000, or (ii) fifty percent (50%) of Consolidated Net Income for the
current fiscal year of Borrower to that date (reduced by Consolidated Net
Losses for the current fiscal year of Borrower to that date), plus (b) all
proceeds from the sale of Capital Stock of the Obligors in the then current
fiscal year of Borrower, and (c) all proceeds from the maturation, sale or
disposition of Restricted Investments in the then current fiscal year of
Borrower. No Restricted Payment shall be declared or made if a Default or
an Event of Default exists or would exist as a result of such Restricted
Payment. The total amount of Restricted Payments shall not exceed
$2,500,000 during the term of this Agreement. In the event payments in
redemption of Borrower's Series A Convertible Preferred Stock outstanding
on the Closing Date effected after the Closing Date cause the amount of
Restricted Payments to exceed the maximums provided above, Borrower shall
not be deemed to be in default under this Agreement.
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SECTION 7.9. 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 8.1 (or from any trustee, agent,
attorney, or other party acting on behalf of such holder(s)) in an amount which,
in the aggregate, exceeds $100,000, 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 documents
evidencing or securing such Indebtedness. 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 7.10. ADDITIONAL GUARANTORS. Within thirty (30) days after, and on
at least a quarterly basis, the Borrower shall give the Administrative Agent and
the Lenders prompt written notification of (i) the formation or acquisition
(provided that nothing in this Section shall be deemed to authorize or prohibit
the acquisition of any entity) of any Subsidiary not listed on SCHEDULE 6.1,
(ii) the transfer of assets by any Consolidated Company as a result of which
the recipient of such assets becomes a Subsidiary, and (iii) the occurrence of
any other event creating a new Subsidiary. Within thirty (30) days of the
acquisition or formation of any new Subsidiary, Borrower shall deliver to the
Administrative Agent copies of the Articles of Incorporation and bylaws of each
such Subsidiary and shall cause such Subsidiary to execute and deliver (i) a
joinder to this Agreement in the form of EXHIBIT K attached hereto; (ii) a
Supplement to Subsidiary Guaranty Agreement in the form of EXHIBIT L attached
hereto; (iii) an Agreement Not to Encumber; (iv) a Supplement to Contribution
Agreement in the form of EXHIBIT M attached hereto; and (v) a Supplement to
Security Agreement in the form of EXHIBIT G attached hereto, all in the
prescribed form or such other form and substance as may be satisfactory to the
Administrative Agent and the Required Lenders.
SECTION 7.11. FISCAL YEAR. Borrower shall not change its fiscal year now
employed for accounting and reporting purposes without the prior written consent
of the Administrative Agent and the Required Lenders, which consent shall not be
unreasonably withheld.
SECTION 7.12. OWNERSHIP OF GUARANTORS. Borrower shall maintain at least
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.
SECTION 7.13. LOCKBOX ACCOUNT: SPECIAL COLLECTION ACCOUNT.
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(a) The Borrower and its Subsidiaries shall maintain at the
Administrative Agent a lockbox account for the collection of all of their
receivables which shall be activated on demand of the Administrative Agent
after an Event of Default. Such account shall be subject to such terms,
conditions and documentation as may be reasonably required by the
Administrative Agent.
(b) Borrower and its Subsidiaries shall maintain a special collection
account (the "Special Collection Account") with Administrative Agent and
after demand by the Administrative Agent after an Event of Default all
funds received by Borrower and its Subsidiaries from sales of Inventory,
all refunds of taxes, all remittances by Account Debtors of the Borrower or
any Subsidiary, and all other proceeds of Collateral shall be deposited no
later than the next Business Day following receipt thereof. From and after
an Event of Default, Administrative Agent shall have the exclusive right to
withdraw or debit funds from the Special Collection Account which may be
accomplished by any directive signed by any two officers of Administrative
Agent. Administrative Agent will use its best efforts to daily withdraw the
collected balance in the Special Collection Account and apply it to the
Loans.
SECTION 7.14. CONSENTS OF LESSOR. Unless waived by the Administrative
Agent, in the event that a material amount (in the discretion of the
Administrative Agent) of the Collateral is ever located on any leased premises,
the Borrower shall furnish or cause to be furnished additional executed Consents
of Lessor for such leased premises.
SECTION 7.15. SUBORDINATION OF INTERCOMPANY Loans. All loans or fees owed
to any Guarantor or any other Consolidated Company, or any Affiliate of any
thereof, shall, at all times, be subordinate to the Loans and the Borrower shall
cause its Subsidiaries and/or Affiliates from time to time to execute and
deliver to the Administrative Agent and the Required Lenders subordination
agreements in form and content satisfactory to the Administrative Agent and
the Required Lenders.
SECTION 7.16. PROCEEDS OF ASSETS SALES/EQUIIY OFFERINGS. The Net Proceeds
of the sale of any asset of any Consolidated Company sold other than in the
ordinary course of business and the proceeds of any sale or placement of Capital
Stock or Subordinated Debt by any Consolidated Company, net of reasonable and
customary fees and expenses, shall be promptly paid over to the Administrative
Agent for distribution to the Lenders as a reduction in the Loans. Such
reduction shall not reduce any Lender's Commitment.
SECTION 7.17. HEDGING AGREEMENTS. Within thirty (30) days after the Closing
Date, Borrower shall enter into and maintain through the Termination Date
agreements in form, on terms, and with Persons acceptable to the Administrative
Agent and the Required Lenders which afford Borrower protection against interest
rate fluctuations on a minimum of fifty percent (50%) of the Indebtedness of the
Borrower outstanding as of the Closing Date.
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ARTICLE 8.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid, Borrower will not and will not permit any Subsidiary to:
SECTION 8.1. INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof and described on
SCHEDULE (excluding Refinanced Indebtedness), together with all extensions,
renewals and refinancings thereof, PROVIDED, HOWEVER, any such extensions,
renewals and refinancings shall not, without the written consent of the
Administrative Agent and Required Lenders, increase any such Indebtedness
or modify the terms of said Indebtedness on terms less favorable to the
maker or obligor;
(c) purchase money Indebtedness to the extent secured by a Lien
permitted by Section 8.2(b) provided such purchase money Indebtedness does
not exceed $1,000,000;
(d) 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 (determined in accordance with the payment terms
of such liabilities), or (ii) being disputed in good faith by appropriate
proceedings with reserves for such disputed liability maintained in
conformity with GAAP;
(e) the Intercompany Loans described on SCHEDULE 6.22 and any other
loans between Borrower and/or the Restricted Subsidiaries provided that the
Administrative Agent shall be advised of each loan in writing promptly
after the funding of each loan;
(f) Subordinated Debt in form and substance acceptable to the
Administrative Agent and the Required Lenders, and evidenced by their
written consent thereto;
(g) Indebtedness arising under interest rate contracts;
(h) Indebtedness owed to any Person that is not an Affiliate of a
Consolidated Company that is incurred in connection with a Permitted
Acquisition; and
(i) endorsements of instruments for deposit or collection in the
ordinary course of business.
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SECTION 8.2. 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:
(a) Liens existing on the date hereof disclosed on SCHEDULE 8.2 and,
provided no Event of Default has occurred and is then continuing, any
renewal, extension or refunding of such Lien in an amount not exceeding the
amount thereof remaining unpaid immediately prior to such renewal,
extension or refunding;
(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 $1,000,000;
(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, existing contractual Liens of
landlords, future contractual Liens of landlords not to exceed five percent
(5%) of the number of leases in existence from time to time 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;
(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);
(f) Liens resulting from zoning, easements, and restrictions on the
use of such real estate, or rights reserved or vested in governmental
authority, which do not materially impair the use of such real estate;
(g) Liens on any assets and properties of any Subsidiary hereafter
acquired or created in connection with a Permitted Acquisition; and
(h) Liens securing Permitted Debt which have been approved by the
Administrative Agent and the Required Lenders prior to the creation of such
Liens.
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SECTION 8.3. SALES, ETC. Sell, lease, assign, discount or otherwise dispose
of the Collateral or any other property or assets (including Capital Stock of
Subsidiaries) except in the ordinary course of business and except for sales,
the proceeds of which are used to acquire substitute property of equal value
which is Collateral.
SECTION 8.4. MERGERS, ACQUISITIONS, SALES, ETC. Without the prior written
consent of the Administrative Agent and the Required Lenders, 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, except for the purchase of
capital stock as an investment in a Subsidiary as permitted by subsection (a) in
Section 8.5 below, 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 having comparable values, (ii) a sale, lease or transfer of assets of the
Borrower or any Subsidiary to the Borrower or to any other Subsidiary, and (iii)
sales of inventory in the ordinary course of business; and, provided further,
that the foregoing restrictions on mergers shall not apply to mergers involving
Borrower or a Restricted Subsidiary and another entity, provided Borrower or a
Restricted Subsidiary 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 provisions of this Agreement; provided, however, that no transaction
pursuant to clauses (i), (ii), (iii) or the second proviso above shall be
permitted if any Default or Event of Default otherwise exists at the time of
such tranaction or would otherwise exist as a result of such transaction. The
foregoing restrictions shall not apply to the merger or consolidation of a
member or members of the International Group with or the sale of all or
substantially all of the assets of a member or members of the International
Group to any other Person which is not a Consolidated Company.
SECTION 8.5. INVESTMENTS, LOANS, ETC. Make or permit to remain outstanding
any Investments, other than:
(a) Investments which are not Restricted Investments;
(b) Investments made by Plans; and
(c) Permitted Acquisitions.
SECTION 8.6. 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.
SECTION 8.7. TRANSACTIONS WITH AFFILIATES.
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(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, not in the ordinary
course of business, with any Consolidated Company or an Affiliate of any
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.
(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 8.8. 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 Notes, and (ii) trade payables incurred in the ordinary course
of business.
SECTION 8.9. CHANGES IN BUSINESS. Enter into any business which is
substantially different from that presently conducted by the Consolidated
Companies taken as a whole.
SECTION 8.10. 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 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 Material Adverse Effect.
SECTION 8.11. 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
Obligor, other than pursuant to (i) the terms of any agreement, instrument or
other document pursuant to which any Permitted Indebtedness is incurred by any
Obligor, 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 8.12. 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.
SECTION 8.13. 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 the Intercompany Loans or any
agreements or documents evidencing or governing Subordinated Debt or Permitted
Debt (except that Permitted Debt between Obligors may be modified or amended so
long as it otherwise satisfies the requirements of Section 8.1) or make any
principal payments thereunder until the Obligations are repaid in full and the
Commitments terminated.
SECTION 8.14. USE OF PROCEEDS. Use of proceeds of the Loans for any purpose
except those set forth herein.
SECTION 8.15. GUARANTIES. Without the prior written consent of the
Administrative Agent, extend or permit any Subsidiaries to execute any guaranty
other than (i) endorsements of Instruments for deposit or collection in the
ordinary and normal course of business, and (ii) guaranties approved in writing
by the Administrative Agent and Required Lenders.
SECTION 8.16. NO PAYMENTS ON THE SUBORDINATED OBLIGATIONS. Without the
prior written consent of the Administrative Agent and Required Lenders:
(a) The Borrower shall not make or cause to be made any payment of
principal on the Subordinated Debt unless and until all Obligations due the
Lenders hereunder are paid in full; and
(b) Upon the occurrence of an Event of Default, Borrower shall not
thereafter make or cause any payment of interest to be made on the
Subordinated Debt; and
(c) Upon the occurrence and continuation of an Event of Default and,
as a result of which, the Administrative Agent has elected to exercise any
of the remedies under Article 9, the Borrower shall not thereafter make or
permit to be made any payments of any nature whatsoever on the Subordinated
Debt.
SECTION 8.17. CHANGES IN MANAGEMENT. Without the prior written consent of
the Administrative Agent, in its sole and absolute discretion, permit a change
in the senior management of the Borrower.
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SECTION 8.18. INVESTMENTS IN ABLE INTERNATIONAL. Without the prior written
consent of the Administrative Agent and the Required Lenders, make an Investment
in any member of the International Group or their assets or become in any way
liable for the Indebtedness of any member of the International Group.
ARTICLE 9.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.1. PAYMENTS. Borrower shall fail to pay within two (2) days
after the date when due (including, without limitation, by mandatory prepayment)
any principal payment with respect to the Loans, or any payment of interest, fee
or other amount payable hereunder;
SECTION 9.2. COVENANTS WITHOUT NOTICE. Borrower shall fail to observe or
perform any covenant or agreement contained in Sections 7.7, 7.8 or 8.1 through
8.8;
SECTION 9.3. OTHER COVENANTS. Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement, other than those referred to
in Sections 9.1 and 9.2, 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 Administrative Agent or any Lender;
SECTION 9.4. 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 9.5. 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) the principal balance of which individually or in the aggregate
with other defaulted Indebtedness exceeds One Hundred Thousand and no/100s
Dollars ($100,000) unless the failure to perform is being contested by the
Consolidated Company and adequate reserves in accordance with GAAP have been
created on the books of the Consolidated Company to provide for such payment or
performance;
SECTION 9.6. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
shall fail to observe or perform within any applicable grace period any
covenants or agreements (other than those referenced in Section 9.5) contained
in any agreements or instruments relating to any
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of its Indebtedness the principal balance of which individually or in the
aggregate with other defaulted Indebtedness exceeds One Hundred Thousand and
no/100s Dollars ($100,000) unless the failure to perform is being contested by
the Consolidated Company and adequate reserves in accordance with GAAP have been
created on the books of the Consolidated Company to provide for such payment or
performance 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 9.7. 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 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 9.8. ERISA. A Plan of a Consolidated Company or a Plan subject to
Title IV of ERISA of any of its ERISA Affiliates:
(a) 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 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, Section 412 of the Code or Section 303 of
ERISA; or
(b) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan; or
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(c) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of the Code or
Section 306 or 307 of ERISA; or
(d) 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 Material Adverse Effect;
SECTION 9.9. MONEY JUDGMENT. A judgment, tax lien or order for the payment
of money in excess of Two Hundred Fifty Thousand and no/100s Dollars ($250,000)
individually or in the aggregate or otherwise having a Material 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 60 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
SECTION 9.10. OWNERSHIP OF CREDIT PARTIES. 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 9.11. 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 Persons listed on SCHEDULE
9.11) shall become the "beneficial owner(s)" (as defined in Rule 13d-3
promulgated under the Exchange Act) of more than twenty percent (20%) 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 9.12. 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 t6 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 any Credit Party seeks to cancel or terminate any
Credit Documents or to limit its liability thereunder, or at any time it is or
becomes unlawful for Borrower or any other Credit Party to perform or comply
with its
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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 9.13. ATTACHMENTS. An attachment or similar action for an amount
in excess of $100,000 shall be made on or taken against any of the assets of any
Consolidated Company and is not removed, suspended or enjoined within 30 days of
the same being made or any suspension or injunction being lifted;
SECTION 9.14. MATERIAL ADVERSE EFFECT. An event having a Material Adverse
Effect shall have occurred and be unremedied;
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 Note to enforce its
claims against Borrower or any other Credit Party: (i) declare all Commitments
terminated, whereupon the pro rata Commitments of each Lender shall terminate
immediately and any commitment fee shall forthwith become due and payable
without any other notice of any kind; (ii) declare the principal of and any
accrued interest on the 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; (iii) exercise all of its rights and remedies as provided under this
Agreement, the Guaranty Documents or the Security Documents or as otherwise
allowed by law; and (iv) require activation of the Lockbox Account and Special
Collection Account referenced in Section 7.13; provided, that, if an Event of
Default specified in Section 9.7 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 10.
THE AGENT
SECTION 10.1. Each Lender hereby designates SunTrust Bank, South Florida,
National Association as Administrative Agent to perform administrative matters
concerning the Loans and to act as herein specified. Each Lender hereby
designates Bank of America, FSB as the Syndication Agent to act as and discharge
the usual and customary duties of a syndication agent in transactions similar to
those contemplated by this Agreement. Each Lender hereby irrevocably authorizes,
and each holder of any Note by the acceptance of a Note shall be deemed
irrevocably to authorize, each 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 and thereunder as are specifically delegated
to or required of the Agents by the terms
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hereof and thereof and such other powers as are reasonably incidental thereto.
The Agents may perform any of their duties hereunder by or through their agents
or employees. The provisions of this Article 10 are solely for the benefit of
the Agents. Borrower and the other Consolidated Companies shall not have any
rights as third party beneficiaries of any of the provisions hereof. In
performing their functions and duties under this Agreement, the Agents shall act
solely as agent of the Lenders and do 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 10.2. NATURE OF DUTIES OF AGENTS. The Agents shall have no duties
or responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. Neither the Agents nor any of their respective 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 gross
negligence or willful misconduct. The duties of the Agents shall be ministerial
and administrative in nature; the Agents 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 Agents any obligations, in respect of this Agreement or the
other Credit Documents except as expressly set forth herein. No implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Credit Document or otherwise exist
against either Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement with reference to the Agents is
not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
Section 10.3. LACK OF RELIANCE ON THE AGENTS.
(a) Independently and without reliance upon the Agents, 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 Agents 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 Loans or at any time or times
thereafter.
(b) The Agents 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, collectability, priority or sufficiency of this Agreement,
the Notes, the Guaranty Agreements, or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
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required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement,
the Notes, the Guaranty Agreements, 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 7.7, the Administrative
Agent shall deliver or cause to be delivered such information to such
Lender.
SECTION 10.4. CERTAIN RIGHTS OF THE AGENTS. If the Agents 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 Agents
shall be entitled to refrain from such act or taking such act, unless and until
the Agents shall have received instructions from the Required Lenders; and the
Agents shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agents as a result of the Agents acting or refraining
from acting hereunder in accordance with the instructions of the Required
Lenders.
SECTION 10.5. RELIANCE BY AGENTS. The Agents 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 Agents 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. An Agent shall not be responsible for the negligence or
misconduct of any agent or attorney in fact that the Agent selects with
reasonable care.
SECTION 10.6. INDEMNIFICATION OF AGENTS. To the extent the Agents are not
reimbursed and indemnified by the Credit Parties, each Lender will reimburse
and indemnify the Agents, ratably according to the respective amounts of the
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 Agents in performing their
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 an Agent for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agents' gross negligence or willful misconduct.
SECTION 10.7. THE AGENTS IN THEIR INDIVIDUAL CAPACITY. With respect to
their obligation to lend under this Agreement, the Loans made by them and the
Notes issued to them, the Agents shall have the same rights and powers hereunder
as other Lender or holder of a
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Note and may exercise the same as though it were not performing the duties
specified herein; and the terms "Lenders", "Required Lenders", "holders of
Notes", or any similar terms shall, unless the context clearly otherwise
indicates, include the Agents in their individual capacity. The Agents 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 10.8. HOLDERS OF NOTES. The Agents may deem and treat the payee of
any 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 Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
SECTION 10.9. SUCCESSOR AGENTS.
(a) Either 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, an Agent may not
resign or be removed until a successor Administrative Agent or Syndication
Agent, as the case may be, 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 or
Syndication Agent subject to Borrower's prior written approval, which
approval will not be unreasonably withheld. If no successor Administrative
Agent or Syndication 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 or Syndication Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent or Syndication Agent, then the retiring Administrative Agent or
Syndication Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent or Syndication Agent subject to Borrower's prior
written approval, which approval will not be unreasonably withheld, which
successor Administrative Agent or Syndication Agent shall be a bank which
maintains an office in the United States, 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. Notwithstanding the foregoing, Borrower's approval shall not
be required at any time that a Default or an Event of Default shall have
occurred and be uncured. If at any time SunTrust Bank, South Florida,
National Association or Bank of America, FSB is removed as a Lender, such
party, shall simultaneously resign as Administrative Agent or Syndication
Agent, as the case may be.
(b) Upon the acceptance of any appointment as the Administrative Agent
or Syndication Agent hereunder by a successor Administrative Agent or
Syndication Agent,
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such successor Administrative Agent or Syndication Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent or Syndication Agent, and the
retiring Administrative Agent or Syndication Agent shall be discharged from
its duties and obligations under this Agreement. After any retiring
Administrative Agent or Syndication Agent's resignation or removal
hereunder as Administrative Agent or Syndication Agent, the provisions of
this Article shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was an Administrative Agent or Syndication Agent
under this Agreement.
SECTION 10.10. AGENTS IN INDIVIDUAL CAPACITY. Either Agent may make loans
to, enter into interest rate swap agreements with, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with any Consolidated Company
as though such Agent was not, an Agent hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, either Agent may receive information regarding any Consolidated
Company (including information that may be subject to confidentiality
obligations in favor of a Consolidated Company) and acknowledge that the Agents
shall be under no obligation to provide such information to them. With respect
to its Loans, an Agent shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not an
Agent.
SECTION 10.11. ADMINISTRATIVE AGENT'S PERFECTION OF SECURITY INTEREST. The
parties hereto acknowledge that the Administrative Agent currently has perfected
Liens on portions of the Collateral which are titled vehicles given to secure
the Refinanced Indebtedness. The parties hereby agree that as of the time of the
repayment of the Refinanced Indebtedness such Liens shall be held by the
Administrative Agent in its capacity as Administrative Agent encumbering that
portion of the Collateral so as to perfect the Security Interest. The
satisfaction of the Refinanced Indebtedness shall not affect the Liens which
shall continue so as to perfect the Security Interest.
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ARTICLE 11.
MISCELLANEOUS
SECTION 11.1. 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 certified
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 11.2. 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 5.1 or Section 5.2, (ii)
increase the Commitments or other contractual obligations to Borrower under this
Agreement, (iii) reduce the principal of, or interest on, the Notes or any fees
hereunder, (iv) postpone any date fixed for the payment in respect of principal
of, or interest on, the Notes or any fees hereunder, (v) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the 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 Agreements, (vii) modify the definition of
"Required Lenders," (viii) modify this Section, or (ix) release any material
portion of the Collateral from the Security Interest. 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 11.3. NO WAIVER; REMEDIES CUMULATIVE. No, failure or delay on the
part of the Administrative Agent, any Lender or any holder of a 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 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
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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 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 Note to take any other or further action in any
such circumstances without notice or demand.
SECTION 11.4. PAYMENT OF EXPENSES, ETC. Borrower shall:
(a) 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 Agents), 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 the Lenders or the Agents, (including without limitation
in-house attorneys' fees)], for any of the Lenders or Agents;
(b) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.7, 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 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;
(c) indemnify the Administrative Agent and each Lender, and their
respective officers, directors, employees, representatives and agents from,
and hold each of them harmless against, any and all costs, losses,
liabilities, claims, damages or expenses incurred by any of them (whether
or not any of them is designated a party thereto) (an "Indemnitee") arising
out of or by reason of any investigation, litigation or other proceeding
related to any actual or proposed use of the proceeds of any of the Loans
or any Credit Party's entering into and performing of the Agreement, the
Notes, or the other Credit Documents, including, without limitation, the
reasonable fees actually incurred and disbursements of counsel (including
foreign counsel) incurred in connection with any such investigation,
litigation or other proceeding; provided, however, Borrower shall not
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be obligated to indemnify any Indemnitee for any of the foregoing arising
out of such Indemnitee's gross negligence or willful misconduct;
(d) without limiting the indemnities set forth in subsection (c)
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; provided, however, Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's
gross negligence or willful misconduct.
If and to the extent that the obligations of Borrower under this Section 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 11.5. RIGHT OF SETOFF. In addition to and not in limitation of all
rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a 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. The benefits of any such set off shall be shared by the
Lenders in accordance with their Pro Rata Shares. Each Lender shall promptly
notify Borrower of any offset hereunder.
SECTION 11.6. BENEFIT OF AGREEMENT.
(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
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Borrower may not assign or transfer any of its interest hereunder without
the prior written consent of all the Lenders.
(b) Any Lender may make, carry or transfer 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 Commitments and the Loans at the time owing to it and the Notes held by
it) to any Eligible Assignee; provided, however, that (i) the
Administrative Agent and Borrower (in the case of the Borrower only if an
Event of Default has not occurred and is uncured) must give their prior
written consent to such assignment (which consent shall not be
unreasonably withheld or delayed) unless such assignment is to an
Affiliate of the assigning Lender, (ii) the amount of the Commitments, or
Loans, in the case of assignment of Loans, 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 $5,000,000 and (iii) the
parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a Note or
Notes subject to such assignment and 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. Notwithstanding the
foregoing, the assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of Commitments or
Loans, as the case may be, of $5,000,000; provided, however, no such
minimum amount shall be required with respect to any such assignment made
at any time there exists an Event of Default hereunder. 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 Note or Notes, a new
Note or Notes to the order of such assignee in a principal amount equal to
the applicable Commitments or Loans assumed by it pursuant to such
Assignment and Acceptance and new Note or Notes to the assigning Lender in
the amount of its retained Commitment or Commitments or amount of its
retained Loans. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the date of the surrendered 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 and the
Administrative Agent, sell participations 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
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Commitments in the Loans owing to it and the 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 4 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 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 and
Administrative Agent 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. The proposed
participant or assignee shall agree in writing, a copy of which shall be
furnished to Borrower, not to disclose any of such information except (i)
to directors, employees, auditors or counsel to whom it is necessary to
disclose 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 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 4.7(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
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pursuant to Section 4.10 or for its reduced rate of return pursuant to
Section 4.16, 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 11.6(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 Loans accrued to the date of
such assignment, and the assumption of such Lender's Total 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 11.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; FULL FAITH AND
CREDIT; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER 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 FLORIDA.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR
ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CIRCUIT COURT OF PALM BEACH
COUNTY, FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OBLIGOR HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS.
(C) TO THE EXTENT THAT ANY AGENT OR LENDER OBTAINS ANY JUDGMENT
AGAINST ANY OBLIGOR UNDER ANY CREDIT DOCUMENT, OBLIGORS DO HEREBY AGREE
THAT SUCH JUDGMENT SHALL BE ENTITLED TO "FULL FAITH AND CREDIT" WITH THE
SAME FORCE AND EFFECT AS IF SUCH JUDGMENT WAS RENDERED AGAINST THE OBLIGOR
BY A COURT OR OTHER TRIBUNAL LOCATED IN THE DOMICILE OF THE OBLIGOR, IF
DIFFERENT FROM THAT IN WHICH SUCH JUDGMENT IS RENDERED. OBLIGORS HEREBY
AGREE TO THE VALIDITY AND ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT
SEEK TO CHALLENGE OR "GO BEHIND" THE FACE OF SUCH JUDGMENT.
-79-
<PAGE>
(D) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OBLIGOR HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
IN CONNECTION WITH ANY CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION
HEREUNDER OR THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDERS TO EXTEND CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE
BORROWER. FURTHER, OBLIGORS HEREBY CERTIFY THAT NO REPRESENTATIVE OF THE
AGENTS OR LENDERS NOR ANY COUNSEL FOR THE AGENTS OR LENDERS HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENTS OR LENDERS WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF
JURY TRIAL PROVISION. NO REPRESENTATIVE OF THE AGENTS OR LENDERS NOR
COUNSEL FOR THE AGENTS OR LENDERS HAS THE AUTHORITY TO WAIVE, CONDITION OR
MODIFY THIS PROVISION.
(E) OBLIGORS FURTHER IRREVOCABLY CONSENT 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 EACH OBLIGOR AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. OBLIGORS HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION THEY MAY HAVE 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 ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS IN RESPECT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT.
(F) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER,
ANY HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST AN OBLIGOR IN ANY OTHER JURISDICTION.
SECTION 11.8. 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 Notes, and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.
-80-
<PAGE>
SECTION 11.9. COLLATERAL TO BENEFIT ALL LENDERS. The Security Interest in
the Collateral has been granted to the Administrative Agent, for the benefit of
all the Lenders, to the extent of each Lender's Commitment.
SECTION 11.10. 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 11.11. 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 5.1 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 4.7(b), 4.8, 4.10,
4.12, 4.16, and 11.4 hereof shall survive for one hundred twenty (120)
days after the payment in full of the Notes after the Final Maturity Date.
All representations and warranties made herein or 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 Loans hereunder, and the execution and delivery of the Notes.
SECTION 11.12. 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 11.13. 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 11.14. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS. If
(i) any preparation of the financial statements referred to in Section 6.3
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 Accountants (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
-81-
<PAGE>
terms found in this Agreement, (ii) there is any change in Borrower's fiscal
quarter or fiscal year as provided herein, 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 11.15. 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
other than the Commitment and Fee Letters dated February 4, 1998 from the Agents
to the Borrower the terms of which shall survive and be enforceable during the
Revolving Period.
SECTION 11.16. TIME IS OF THE ESSENCE. Time is of the essence in
interpreting and performing this Agreement and all other Credit Documents.
SECTION 11.17. 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 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 11.18. 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,
Administrative Agent, Lenders and their respective agents have participated in
the preparation hereof.
-82-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duty executed and delivered in Atlanta, Georgia, by their duly authorized
officers as of the day and year first above written.
SUNTRUST BANK, SOUTH FLORIDA, N.A., a
national banking association, individually and as
Administrative Agent
Revolving Loan Commitment By: /s/ JEFFREY S. WOLFE
Twelve Million Five Hundred ------------------------------
Thousand and No/100 Dollars Print Name: Jeffrey S. Wolfe
($12,500,000.00) Its: Vice President
BANK OF AMERICA, FSB, individually and as
Syndication Agent
Revolving Loan Commitment By: /s/ HOWARD KIM
Twelve Million Five Hundred ------------------------------
Thousand and No/100 Dollars Print Name: Howard Kim
($12,500,000.00) Its: Vice President
ABLE TELCOM HOLDING CORP., a Florida
corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name: Frazier L. Gaines
Its: President & CEO
-83-
<PAGE>
JOINDER OF GUARANTORS
The undersigned, being and constituting the Restricted Subsidiaries of ABLE
TELCOM HOLDING CORP., a Florida corporation (the "Borrower"), do hereby join in
and agree to be bound by all provisions applicable to such Restricted
Subsidiaries under the Senior Secured Revolving Credit Agreement (the "Loan
Agreement"), dated as of April 6, 1998, by and between Borrower, SunTrust Bank,
South Florida, National Association, individually and as Administrative Agent
(the "Administrative Agent"), Bank of American, FSB, individually and as
Syndication Agent (the "Syndication Agent") and the other Lenders from time to
time parties thereto.
The undersigned Restricted Subsidiaries of the Borrower hereby agree to
execute and deliver to the Administrative Agent the Security Agreement,
appropriate financing statements to perfect the security interests granted in
the Security Agreement, a Guaranty Agreement and a Contribution Agreement, the
form and substance of which shall be those attached to the Loan Agreement.
Dated this 6 day of April, 1998.
TELECOMMUNICATION SERVICES GROUP, INC.,
a Florida corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name: Frazier L. Gaines
Its: President
ABLE INTEGRATED SYSTEMS, INC., a Florida
corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name: Frazier L. Gaines
Its: President
ABLE COMMUNICATION SERVICES, INC., a
Florida corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name: Frazier L. Gaines
Its: President
-84-
<PAGE>
H.C. CONNELL, INC., a Florida corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: President
DIAL COMMUNICATIONS, INC., a Florida
corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: President
TRAFFIC MANAGEMENT GROUP, INC., a Florida
corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: Vice President
TRANSPORTATION SAFETY CONTRACTORS,
INC., a Florida corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: Executive Vice President
TRANSPORTATION SAFETY CONTRACTORS OF
VIRGINIA, INC., a Virginia corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: President
GEORGIA ELECTRIC COMPANY, a Georgia
corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: Vice President
-85-
<PAGE>
COMMUNICATIONS DEVELOPMENT GROUP,
INC., a Florida corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: President
ABLE WIRELESS, INC., a Florida corporation
By: /s/ FRAZIER L. GAINES
------------------------------
Print Name:
Its: President
-86-
<PAGE>
LOAN AGREMENT
CERTIFICATION OF EXECUTION
STATE OF GEORGIA
COUNTY OF FULTON
On the 6th day of APRIL, 1998 personally appeared FRAZIER L. GAINES, as the
PRESIDENT & CEO of ABLE TELCOM HOLDING CORP., and before me executed the
attached SENIOR SECURED REVOLVING CREDIT AGREEMENT, dated as of APRIL 6TH, 1998
between ABLE TELCOM HOLDING CORP. as Borrower and SunTrust Bank, South Florida,
National Association as Administrative Agent and Bank of America, FSB as
Syndication Agent.
/s/ SUSAN C. PILCHER
------------------------
Susan C. Pilcher
Signature of Notary Public, State of
Georgia (Print, Type or Stamp
Commissioned Name of Notary Public)
Personally known _______; or Produced
Identification
(Notary Seal) FLDL
Notary Public, Paulding County, Georgia
My Commission Expires Sept. 16, 2000
<PAGE>
SENIOR SECURED REVOLVING CREDIT AGREEMENT ADDENDUM
CERTIFICATION OF EXECUTION
STATE OF GEORGIA
COUNTY OF FULTON
On the 6th day of APRIL, 1998 personally appeared HOWARD KIM, as the VICE
PRESIDENT of BANK OF AMERICA, FSB, and before me executed the attached SENIOR
SECURED REVOLVING CREDIT AGREEMENT, dated as of APRIL 6TH, 1998 between ABLE
TELCOM HOLDING CORP. as Borrower and SunTrust Bank, South Florida, National
Association as Administrative Agent and Bank of America, FSB as Syndication
Agent.
/s/ SUSAN C. PILCHER
------------------------
Susan C. Pilcher
Signature of Notary Public, State of
Georgia (Print, Type or Stamp
Commissioned Name of Notary Public)
Personally known _______; or Produced
Identification
(Notary Seal) FLDL
Notary Public, Paulding County, Georgia
My Commission Expires Sept. 16, 2000
<PAGE>
SENIOR SECURED REVOLVING CREDIT AGREEMENT ADDENDUM
CERTIFICATION OF EXECUTION
STATE OF GEORGIA
COUNTY OF FULTON
On the 6th day of APRIL, 1998 personally appeared JEFFREY S. WOLFE, as the VICE
PRESIDENT of SUNTRUST BANK/SOUTH FLORIDA, NATIONAL ASSOCIATION, and before me
executed the attached SENIOR SECURED REVOLVING CREDIT AGREEMENT, dated as of
APRIL 6TH, 1998 between ABLE TELCOM HOLDING CORP. as Borrower and SunTrust Bank,
South Florida, National Association as Administrative Agent and Bank of America,
FSB as Syndication Agent.
/s/ SUSAN C. PILCHER
------------------------
Susan C. Pilcher
Signature of Notary Public, State of
Georgia (Print, Type or Stamp
Commissioned Name of Notary Public)
Personally known [X]; or Produced
Identification
(Notary Seal)
Notary Public, Paulding County, Georgia
My Commission Expires Sept. 16, 2000
<PAGE>
SCHEDULE 6.1
ABLE TELCOM HOLDING CORP. (THE "COMPANY")
ORGANIZATION AND OWNERSHIP OF SUBSIDIARIES
TELECOMMUNICATIONS SERVICES GROUP, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: the Company
ABLE INTEGRATED SYSTEMS, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Telecommunications Services Group, Inc.
ABLE COMMUNICATIONS SERVICES, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Telecommunications Services Group, Inc.
H.C. CONNELL, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Telecommunications Services Group, Inc.
DIAL COMMUNICATIONS, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Telecommunications Services Group, Inc.
TRAFFIC MANAGEMENT GROUP, INC.
Jurisdiction of Incorporation or organization: Florida
Owned by: the Company
TRANSPORTATION SAFETY CONTRACTORS, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Traffic Management Group, Inc.
TRANSPORTATION SAFETY CONTRACTORS OF VIRGINIA, INC.
Jurisdiction of incorporation or organization: Virginia
Owned by: Traffic Management Group, Inc.
GEORGIA ELECTRIC COMPANY
Jurisdiction of incorporation or organization: Georgia
Owned by: Traffic Management Group, Inc.
COMMUNICATIONS DEVELOPMENT GROUP, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: the Company
<PAGE>
ABLE TELCOM INTERNATIONAL, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: the Company
ABLE WIRELESS, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Communications Development Group, Inc.
ABLE TELCOM C.A.
Jurisdiction of incorporation or organization: Venezuela
Owned by: 80% owned by the Company
SEIMA TELECOMUNICACOES LTDA.
Jurisdiction of incorporation or organization: Brazil
Owned by: 75% owned by the Company
NEUROTECHNOLOGY, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Communications Development Group, Inc.
TELECOMUNICATIONS TECHNOLOGIES INC., TTH, C.A.
Jurisdiction of incorporation or organization: Venezuela
Owned by: 80% owned by the Company
ABLE TELCOM DO BRASIL EMPREENDIMENTOS E PARTICIPACOES LTDA
Jurisdiction of incorporation or organization: Brazil
Owned by: 99% owned by the Company
INVERSIONES ABLE TELCOM HOLDING CORPORATION S.A.
Jurisdiction of incorporation or organization: Chile
Owned by: the Company
<PAGE>
SCHEDULE 6.4
TAX FILINGS AND PAYMENTS
None
<PAGE>
SCHEDULE 6.5
PENDING AND THREATENED LITIGATION
None
<PAGE>
SCHEDULE OF CAPITAL LEASE OBLIGATIONS
SCHEDULE 6.7
<TABLE>
<CAPTION>
OBLIGOR NAME LENDER NAME AMOUNT EXPIRY PAYMENT TERM(S) COLLATERAL DESCRIPTION(S)
- ------------ ----------- ------ ------ ------- ------- -------------------------
<S> <C> <C> <C> <C> <C> <C>
Transportation Safety
Contractors, Inc. CIT Group Equipment Financing 73,687 01/01 2,167 monthly Equipment (specific)
Transportation Safety
Contractors, Inc. CIT Group Equipment Financidng 78,860 03/01 2,191 monthly Equipment (specific)
Transportation Safety
Contractors, Inc. CIT Group Equipment Financidng 73,687 01/01 2,167 monthly Equipment (specific)
Transportation Safety
Contractors, Inc. CIT Group Equipment Financidng 73,687 01/01 2,167 monthly Equipment (specific)
Transportation Safety
Contractors Virginia Inc CIT Group Equipment Financing 79,094 03/01 2,197 monthly Equipment (specific)
Transportation Safety
Contractors Virginia Inc CIT Group Equipment Financing 79,094 03/01 2,197 monthly Equipment (specific)
Dial Communications, Inc. Associates Commercial Corp. 83,405 07/98 16,880 monthly Equipment - specified
Dial Communications, Inc. Clark Credit 15,992 06/98 4,086 monthly Equipment - specified
Dial Communications, Inc. Trenchless Technology 6,965 07/98 1,792 monthly Equipment - specified
Dial Communications, Inc. Miller Electric Finance 1,497 10/97 194 monthly Equipment - specified
Dial Communications, Inc. Associates Commercial Corp. 280,354 11/98 35,309 monthly Equipment - specified
</TABLE>
<PAGE>
SCHEDULE 6.11
EMPLOYEE BENEFIT PLAN MATTERS
PLANS
1. Able Telcom Holding Corp. 1995 Stock Option Plan
2. Able Telcom Holding Corp. 401K Plan
3. Anthem Employee Health Insurance Plan (1/2 premium paid by employer)
OTHER ARRANGEMENTS
1. Management Incentive Bonus - It has been the Company's practice to
consider awarding annual incentive bonuses to senior management for performance
during the Company's fiscal year. No formal or written plan document is
currently in effect with respect to this practice, but the Company expects to
continue this practice and may in the future adopt one or more written plans
relating thereto.
2. Employee Fringe Benefits - The Company provides its employees with
vacation and sick days and other fringe benefits in accordance with Company
policies set forth in [to be added].
<PAGE>
SCHEDULE 6.13
OUTSTANDING INDEBTEDNESS AND DEFAULTS
1. Outstanding Indebtedness - the indebtedness identified on Schedule
8.1(b) is incorporated by reference as though fully set forth below.
2. Defaults - None
<PAGE>
SCHEDULE 6.14
CONFLICTING AGREEMENTS
1. Note Agreement, dated as of January 6, 1998, among the Company and the
purchasers named therein, including John Hancock Mutual Life Insurance
Company.
<PAGE>
SCHEDULE 6.15
ENVIRONMENTAL MATTERS
SCHEDULE 6.15 (A) - COMPLIANCE: None
SCHEDULE 6.15 (B) - ENVIRONMENTAL NOTICES: None
SCHEDULE 6.15 (C) - ENVIRONMENTAL PERMITS: None
SCHEDULE 6.15 (D) - EQUAL EMPLOYMENT OPPORTUNITY AND EMPLOYEE SAFETY: None
<PAGE>
SCHEDULE 6.17
INTELLECTUAL PROPERTY MATTERS
None
<PAGE>
SCHEDULE 6.21
LABOR MATTERS
None
<PAGE>
Able Telcom Holding Corp. SCHEDULE 6.22
INTERCOMPANY LOANS
<TABLE>
<CAPTION>
ADVANCES ADVANCES AMOUNT
TO FROM
<S> <C> <C> <C>
Telecommunications Services Group, Inc. AbleTelcom Holding Corp. 6,532,695
Traffic Management Group, Inc. AbleTelcom Holding Corp. 4,396,898
Communications Development Group, Inc. AbleTelcom Holding Corp. 700,512 11,630,105
Transportation Safety Contractors, Inc. Traffic Management Group, Inc. 629,636
Transportation Safety Contractors of Virginia, Inc. Traffic Management Group, Inc. 1,282,931
Georgia Electric Company Traffic Management Group, Inc. 2,484,331 4,396,898
Able Communications Services, Inc. Telecommunications Services Group, Inc. 1,339,982
Able Integrated Systems, Inc. Telecommunications Services Group, Inc. 400,000
Dial Communications, Inc. Telecommunications Services Group, Inc. 4,982,510
Telecommunications Services Group, Inc. H.C. Connell, Inc. 189,797 6,532,695
Able Wireless Inc. Communications Development Group, Inc. 209,181
Able Telcom International, Inc. Communications Development Group, Inc. 2,128,193
Seima Telecomunicacoes Ltda. Communications Development Group, Inc. 556,813
Communications Development Group, Inc. Able Telcom C.A. 2,193,675 700,512
</TABLE>
<PAGE>
SCHEDULE 6.23
RESTRICTIONS
None
<PAGE>
ABLE TELCOM HOLDING CORP.
PLACES OF BUSINESS
SCHEDULE 6.26
ABLE TELCOM HOLDING CORP.
Main: 1601 Forum Place, Suite 1110
West Palm Beach, FL 33401
TRANSPORTATION SAFETY CONTRACTORS, INC.
Main: 7750 Professional Place 100-2 South Jackson Ave.
Tampa, FL 33637 Jacksonville, FL 32220
4001 North 30th Ave.
Hollywood, FL 33020
TRANSPORTATION SAFETY CONTRACTORS OF VIRGINIA
Main: 925 Professional Place 9630 North East Drive
Chesapeeke, VA 23320 Fredricksburg, VA 22408
GEORGIA ELECTRIC COMPANY
See Attached Schedule
H.C. CONNELL
Main: 400 McCormick St. 199 E. Mountain Lake Cutoff Road
Leesburg, FL 34748 Lake Wales, FL 33853
250 East Punken Road 7260 Lot 1 Gardner St.
Apopka, FL 32712 Winter Park, FL 32792
999 Celebration Ave. 12433 66th Street North
Celebration, FL 34747 Largo, FL 33773
376 W. 7th St.
Orlando, FL 32824
ABLE COMMUNICATIONS SERVICES
Main: 1150 Bille Avenue
Winter Springs, FL 32708
ABLE INTEGRATED SYSTEMS MAIN:
317 S. Dillard St. 1267 Old Narcross Rd.
Winter Garden, FL 34787 Lawrence, GA 30044
4972 Woodville Hwy., Bldg. 4 2100 Coach Drive
Tallahassee, FL 32311 McKinney, TX 75069
DIAL COMMUNICATIONS
Main: 4972 Woodville Hwy., Bldg. 4
Tallahassee, FL 32311
10159 Tara Blvd., Suite B 2723 Dunnellon Rd., West
Jonesboro, GA 30236 Dunnellon, FL 34434
13495 Ponce De Leon Blvd. 1610 NW 55th Place
Brooksville, FL 34601 Gainesville, FL 32653
Levy Office Complex #10 Rt. 3, Box 409
US 19 North Lake City, FL 32025
Chiefland, FL 32526
538 Brentwood St. 114 Hwy. 207
Daytona, FL 32117 E. Palatka, FL 32131
<PAGE>
GEORGIA ELECTRIC COMPANY
JOB SITE LOCATIONS
(ASSETS)
ALABAMA: Georgia Electric Company
275 Addaco Blvd.
Mobile, AL 36601
FLORIDA: Georgia Electric Company
C/O Dave Robinson
4000 West San Pedro Street
Tampa, FL 33629
GEORGIA: Main Office M&M Mars
Georgia Electric Company Georgia Electric Company
1412 W. Oakridge Drive 1209 W. Oakridge Drive
Albany, GA 31707 Albany, GA 31707
NORTH CAROLINA:Georgia Electric Company Georgia Electric Company
547 Champion Drive 1325 B North Main Street
Canton, NC 28716 Salisbury, NC 28144
Georgia Electric Company
3220 B Highway 55
Durham, NC 27713
TENNESSEE: Georgia Electric Company
Ponderosa Truck Plaza, exit 175
9227 Frontage Road N.W.
Charleston, TN 37310
TEXAS: Georgia Electric Company Georgia Electric Company
12121 N. Weidner Road 12303 Amelia Drive
San Antonio, TX 78233 Houston, TX 77045
Georgia Electric Company
3205 Bishop Drive, Suite 105
Arlington, TX 76010
<PAGE>
SCHEDULE 6.26 CON'T.
TELECOMMUNICATIONS SERVICES GROUP, INC.
Main: 1601 Forum Place, Suite 1110
West Palm Beach, FL 33401
TRAFFIC MANAGEMENT GROUP, INC.
Main: 1601 Forum Place, Suite 1110
West Palm Beach, FL 33401
COMMUNICATIONS DEVELOPMENT GROUP, INC.
Main: 1601 Forum Place, Suite 1110
West Palm Beach, FL 33401
ABLE WIRELESS, INC.
Main: 1601 Forum Place, Suite 1110
West Palm Beach, FL 33401
<PAGE>
SCHEDULE 6.30
STOCK REDEMPTION OBLIGATIONS
The Company is obligated to redeem its outstanding shares of Series A
Convertible Preferred Stock under certain circumstances, as set forth in the
Certificate of Designation with respect thereto which forms a part of the
Company's Articles of Incorporation.
<PAGE>
SCHEDULE 6.32
INVESTMENTS
None
<PAGE>
ABLE TELCOM HOLDING CORP.
REAL ESTATE
SCHEDULE 6.33
ABLE TELECOM HOLDING CORP.
N/A
TRANSPORTATION SAFETY CONTRACTORS, INC.
Building - $450,000; 7750 Professional Place, Tampa, FL 33637
Land - $800,000; 7750 Professional Place, Tampa, FL 33637
TRANSPORTATION SAFETY CONTRACTORS OF VIRGINIA
Building - $218,000; 9630 Northeast Drive, Fredricksburg, VA 22408
Land - $242,000; 9630 Northeast Drive, Fredricksburg, VA 22408
GEORGIA ELECTRIC COMPANY
N/A
H.C. CONNELL
N/A
ABLE COMMUNICATIONS SERVICES
N/A
ABLE INTEGRATED SYSTEMS
N/A
DIAL COMMUNICATIONS
N/A
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 6.34
SCHEDULE OF OPERATING LEASES
LESSEE LESSOR RENT EXPIRY TERM LOCATION
- ------ ------ ---- ------ ---- --------
<S> <C> <C> <C> <C> <C>
Able Telcom Holding Corp. Centurion Tower Limited 5,286 monthly West Palm Beach, Florida
Transportation Safety Contractors, Inc. Frank Rosemarie & T. Villella 2,650 monthly Hollywood, Florida
Transportation Safety Contractors, Inc. Fred C. Hough 600 monthly Jacksonville, Florida
Transportation Safety Contractors of
Virginia, Inc. CNG Industrial Pk. Properties 2,400 monthly Fredricksburg, Virginia
Georgia Electric Company Oakridge Investments 5,000 monthly Albany, Georgia
Georgia Electric Company Lloyd & Karen Nichols 2,400 monthly Durham, NC
Georgia Electric Company State of Alabama 300 monthly Montgomery, Alabama
H.C. Connell, Inc. H C Connell 5,136 monthly Wildwood, Florida
H.C. Connell, Inc. Edward Staniewicy 3,881 monthly St. Petersburg, Florida
H.C. Connell, Inc. Eston F. Hall 1,060 monthly Maitland, Florida
H.C. Connell, Inc. Beverly Madison 424 monthly Orlando, Florida
H.C. Connell, Inc. Petman Foliage Nursey 519 monthly Apopka, Florida
Able Communications Services, Inc. Micro Via 1,000 monthly Winter Springs, Florida
Able Integrated Systems, Inc. Saul Grimes Leasing Co. 1,170 monthly Winter Garden, Florida
Able Integrated Systems, Inc. Ernest Burnett 1,400 monthly Lawrenceville, Georgia
Able Integrated Systems, Inc. Dial Communications 2,000 monthly Tallahassee, Florida
Able Integrated Systems, Inc. Lumpkin Development 3,080 monthly Birmingham, Alabama
Dial Communications, Inc. Bill Petty John 500 MTM monthly Lake City, Florida
Dial Communications, Inc. L.H. & Kathy Danese 636 03/99 monthly Palatka, Florida
Dial Communications, Inc. Griffin Enterprises 750 01/99 monthly Jonesboro, Georgia
Dial Communications, Inc. Plain Dealing Car Care & Pawn 300 MTM monthly Plain Dealing, LA
Dial Communications, Inc. HM Williams Properties 11,781 09/00 monthly Tallahassee, Florida
Dial Communications, Inc. William E. Newton 3,146 MTM monthly Gainesville, Florida
Dial Communications, Inc. Leonard Durrance 3,100 MTM monthly Daytona Beach, Florida
Dial Communications, Inc. Paul Rosser 850 MTM monthly Brooksville, Florida
Dial Communications, Inc. Liggett's Inc.(William L. Wynne) 475 10/98 monthly Chiefland, Florida
Dial Communications, Inc. Wesley Rush 636 MTM monthly Dunnellom, Florida
</TABLE>
<PAGE>
SCHEDULE 8.1 (b)
SCHEDULE OF PERMITTED DEBT
<TABLE>
<CAPTION>
COLLATERAL
OBLIGOR NAME LENDER NAME AMOUNT EXPIRY TERM(S) PAYMENT DESCRIPTION(S)
- ------------ ----------- ------ ------ ------- ------- --------------
<S> <C> <C> <C> <C> <C> <C>
Transportation Safety Contractors of
Virginia Central Fidelity Bank 264,503 monthly 1,604 Real Property
H.C. Connell, Inc. SunTrust Bank, Central FL 181,900 07/00 monthly 6,272 Specified
Machinery and
Equipment
H.C. Connell, Inc. SunTrust Bank, Central FL 50,000 08/98 monthly Specified
Machinery and
Equipment
Able Communication Services, Inc. SunTrust Bank, Central FL 72,420 monthly 4,777 Specified
Machinery and
Equipment
Dial Communications, Inc. Ford Motor Credit 4,724 05/99 monthly 321 vehicle
Dial Communications, Inc. Ford Motor Credit 4,724 05/99 monthly 321 vehicle
Dial Communications, Inc. Ford Motor Credit 4,724 05/99 monthly 321 vehicle
Dial Communications, Inc. Ford Motor Credit 4,724 05/99 monthly 321 vehicle
Dial Communications, Inc. Ford Motor Credit 4,724 05/99 monthly 321 vehicle
Dial Communications, Inc. Ford Motor Credit 4,724 05/99 monthly 321 vehicle
Dial Communications, Inc. Ford Motor Credit 8,059 05/99 monthly 502 vehicle
Dial Communications, Inc. Ford Motor Credit 8,059 05/99 monthly 502 vehicle
Dial Communications, Inc. Ford Motor Credit 7,469 05/99 monthly 522 vehicle
Dial Communications, Inc. Ford Motor Credit 7,469 05/99 monthly 522 vehicle
Dial Communications, Inc. GMAC 3,735 09/98 monthly 631 vehicle
Dial Communications, Inc. GMAC 2,930 09/98 monthly 402 vehicle
Dial Communications, Inc. First Union National Bank 620 04/98 monthly 620 vehicle
Dial Communications, Inc. SunTrust Bank, Central FL 566 03/98 monthly 563 vehicle
Dial Communications, Inc. SunTrust Bank, Central FL 993 05/98 monthly 503 vehicle
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 8.2
ACTIVE STATE UCC FILINGS
ABLE TELCOM HOLDING CORPORATION AND AFFILIATES
NAME OF DEBTOR STATE OF FILING NAME OF SECURED PARTY FILING DATE FILING NUMBER
(AND COUNTY, IF APPLICABLE)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Able Communications Services, Inc. Florida Associates Commercial Corporation 12/22/97 970000285706
Florida Hertz Equipment Rental Corporation 5/16/97 970000106941
Florida Hertz Equipment Rental Corporation 5/16/97 970000106940
Florida SunTrust Bank Central Florida NA 1/27/97 970000017984
Able Integrated Systems, Inc. Georgia(Gwinnett County) Graybar Financial Services 10/7/97 06797012077
Able Telcom Holding Corporation Florida Ikon Office Solution 3/4/98 980000047058
Florida Merrill Lynch Business Financial 9/12/96 960000191973
Services Inc.
Florida The CIT Group/Equipment 12/13/91 910000263330
Financing, Inc.
Dial Communications Inc. Florida L B Smith Inc. 3/30/99 980000067862
Florida L B Smith Inc. 10/22/97 970000238271
Florida Miller Electric LFG Co. 10/21/97 970000237716
Florida Flint Equipment Co. 8/22/94 940000171695
Georgia Electric Co. Inc. Alabama Wilson Equipment Company 10/11/89 (lapsed?) 8910128
H C Connell Inc. Florida L B Smith Inc. 10/31/97 970000245868
Florida L B Smith Inc. 9/29/97 970000219179
Florida Ditch Witch Trencher Inc of Florida 8/11/97 970000180043
Florida SunTrust Bank Central Florida NA 6/20/97 970000135555
Florida Falcon Power Inc. 6/9/97 970000124717
Florida Hertz Equipment Rental Corporation 3/25/97 970000062497
Inc.
Florida Hertz Equipment Rental Corporation 3/25/97 970000062496
Inc.
Florida Copytronics Incorporated 10/15/96 960000217430
Florida Falcon Power Inc. and Falcon Power 8/12/96 960000168659
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NAME OF DEBTOR STATE OF FILING NAME OF SECURED PARTY FILING DATE FILING NUMBER
(AND COUNTY, IF APPLICABLE)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
H C Connell Inc Florida SunTrust Bank Central Florida 8/9/96 960000166821
National Association
Florida Falcon Power Inc and Falcon Power 8/9/96 960000167211
Florida Falcon Power Inc and Falcon Power 8/1/96 960000160148
Transportation Safety Florida Hertz Equipment Rental Corp. 2/20/97 970000036694
Transportation Safety Florida The CIT Group/Equipment Financing 8/9/96 960000167121
Contractors Inc. Inc.
Florida Associates Capital Services Corp. 5/14/96 960000099220
Florida The CIT Group/Equipment Financing 2/27/96 960000040225
Inc.
Florida The CIT Group/Equipment Financing 1/25/96 960000017384
Inc.
Virginia First Union National Bank 11/2/90 901110415
Multiple Debtors: Florida SunTrust Bank Central Florida NA 2/2/96 960000022594
Able Telcom and
H C Connell Incorporated Florida SunTrust Bank Central Florida NA 2/2/96 960000022592
</TABLE>
<PAGE>
SCHEDULE 9.11
MANAGEMENT SHAREHOLDERS
Name Number of Shares
Jonathan Bratt 6,500
John D. Foster 1,000
Frazier L. Gaines 652,942
Gerry W. Hall 129,700
Robert C. Nelles 10,000
Gideon D. Taylor 777,038
J. Barry Hall 129,700
<PAGE>
EXHIBIT "A"
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Senior Secured Revolving Credit Agreement
dated as of April 6, 1998 (as may be amended, modified or supplemented to the
date hereof, the "Loan Agreement"), among ABLE TELCOM HOLDING CORP., a Florida
corporation, as Borrower, the lenders listed on the signature pages thereof
("Lenders"), SUNTRUST BANK, SOUTH FLORIDA NATIONAL ASSOCIATION, as
Administrative Agent and BANK OF AMERICA, FSB, as Syndication Agent. Terms
defined in the Loan Agreement are used herein with the same meanings.
1. Assignor (as identified below) hereby sells and assigns to Assignee (as
identified below), without recourse against Assignor, and Assignee
hereby purchases and assumes from Assignor, without recourse against
Assignor, effective as of the Effective Date hereinafter set forth, the
interests set forth below (collectively, the "Assigned Interest"), in
Assignor's rights and obligations under the Loan Agreement, including
without limitation, the below specified Revolving Loan Commitment of
Assignor on the Effective Date, and the below specified Revolving Loans
owing to Assignor that are outstanding on the Effective Date, together
with unpaid interest accrued on the assigned Loans to the Effective
Date, and/or the Pro Rata Share of the Assignor's obligation with
respect to the Letters of Credit, whether in the form of an Advance or
the purchase of the Pro Rata Share of the reimbursement obligation of
the Borrower, and the amount (if any) set forth below of the fees
referred to in Section 4.5(c) of the Loan Agreement accrued to the
Effective Date for the account of Assignor. From and after the
Effective Date, (a) Assignee shall be a party to and be bound by the
provisions of the Loan Agreement, and to the extent of the interest
assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the Credit Documents
(except for any such obligations that are due and payable on, or that
become due and payable before, the effectiveness of this Assignment
and Acceptance), and (b) Assignor shall, to the extent of its interest
assigned by this Assignment and Acceptance and otherwise to the extent
set forth in the foregoing clause (a), relinquish its rights and be
released from its obligations under the Loan Agreement and the Credit
Documents.
2. Each of the Assignor and the Assignee represents, warrants and agrees
to and with the other and the Administrative Agent as follows: (a)
Assignor warrants that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse claim and
that its Revolving Loan Commitment and the outstanding balances of its
Loans under such Facility, without giving effect to assignments thereof
which have not become effective, are as set forth below, (b) except as
set forth in (a), Assignor makes no representation or warranty and
assignees no responsibility with respect to any statements, warranties
or representations made in or in connection with the Loan Agreement, or
the
<PAGE>
execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Agreement or any other Credit Document or any
insignment or documents furnished pursuant thereto, or the financial
condition of the Borrower or any other Credit Party of any of its
obligations under the Credit Documents; (c) the Assignee represents and
warrants that it is legally authorized to enter into this Assignment
and Acceptance; (d) Assignee confirms that it has received a copy of
the Loan Agreement such financial statements and other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (e)
Assignee agrees that it will perform its obligations as a Lender under
the Credit Documents as required by the terms thereof; and (f) Assignee
appoints and authorizes the Administrative Agent to take such actions
as agent on its behalf and to exercise such powers under the Loan
Agreement and the other Credit Documents as are delegated to the
Administrative Agent by the terms of the Credit Documents and as are
reasonably incidental thereto.
3. This Assignment and Acceptance is being delivered to the Administrative
Agent, together with (a) the Notes evidencing the Loans included in the
Assigned Interest, and (b) a copy of the Assignment and Acceptance
after it is duly executed by each of the Assignee and the Assignor.
4. This Assignment shall be governed by and construed in accordance with
the laws of the State of Florida, without regard to the conflict of
laws principles thereof.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address (Including Telex and Telecopy Numbers) for Notices:
Assignee's Lending Office:
Effective Date of Assignment (may not be fewer than five (5)
Business Days after the date of the Assignment):
-2-
<PAGE>
LOANS ASSIGNED:
PERCENTAGE OF
PRINCIPAL AMOUNT COMMITMENT
FACILITY ASSIGNED ASSIGNED
- -------- ---------------- -------------
Revolving Loan $ %
Facility
Immediately after giving effect to this Assignment:
The aggregate amount of the Revolving Loan Commitment of Assignor is
$ _______________________________.
The aggregate amount of the Revolving Loan Commitment of Assignee is
$ _______________________________.
[NAME OF ASSIGNOR]
By:__________________________________
Name:
Title:
As Assignor
[NAME OF ASSIGNEE]
By:___________________________________
Name:
Title:
As Assignee
-3-
<PAGE>
CONSENTED TO:
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
As Administrative Agent
ABLE TELCOM HOLDING CORP.
By:____________________________________
Name:
Title:
As Borrower
-4-
<PAGE>
EXHIBIT B
SUBSIDIARY GUARANTY AGREEMENT
This SUBSIDIARY GUARANTY AGREEMENT (this "Guaranty"), dated as of April 6,
1998, made by the entities listed on Exhibit "A" attached hereto, each of which
is a corporation organized and existing in the jurisdiction set forth in Exhibit
"A" (the foregoing corporations individually a "Guarantor" and collectively the
"Guarantors"), in favor of SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION,
a national banking association, in its capacity as Administrative Agent for the
Lenders at any time parties to the Credit Agreement (as hereinafter defined)
(the "Administrative Agent") and each assignee thereof becoming a "Lender" as
provided therein (the "Lenders"; the Lenders and the Administrative Agent being
individually referred to herein as a "Guaranteed Party" and collectively
referred to herein as the "Guaranteed Parties");
WITNESSETH:
WHEREAS, ABLE TELCOM HOLDING CORP., a Florida corporation (the "Borrower"),
the Lenders and the Administrative Agent have entered into that certain
Senior-Secured Revolving Credit Agreement dated as of April 6, 1998 (as the same
may hereafter be amended, restated, supplemented or otherwise modified from time
to time, and including all schedules, riders, and supplements thereto, the
"Credit Agreement"; terms defined therein and not otherwise defined herein being
used herein as therein defined);
WHEREAS, the Borrower owns, directly or indirectly, all of the outstanding
capital stock of each of the Guarantors;
WHEREAS, the Borrower and Guarantors share an identity of interest as
members of a consolidated group of companies engaged in substantially similar
businesses with the Borrower providing certain centralized financial, accounting
and management services to each of the Guarantors by virtue of intercompany
advances and loans such that financial accommodations to the Borrower under the
Credit Agreement shall inure to the direct and material benefit of each of the
Guarantors; and
WHEREAS, consummation of the transactions pursuant to the Credit Agreement
will facilitate expansion and enhance the overall financial strength and
stability of the Borrower's entire corporate group, including the Guarantors;
and
WHEREAS, it is a condition precedent to the Lender's obligations to enter
into the Credit Agreement and to make extensions of credit thereunder that the
Guarantors execute and deliver this Guaranty, and the Guarantors desire to
execute and deliver this Guaranty to satisfy such condition precedent;
<PAGE>
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lenders to enter into and perform their obligations under the Credit Agreement,
the Guarantors hereby jointly and severally agree as follows:
SECTION 1. GUARANTY. The Guarantors hereby jointly and severally,
irrevocably, absolutely and unconditionally, guarantee the punctual and full
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Loans and all other Obligations owing by the Borrower to the Guaranteed
Parties, or any of them, jointly or severally under the Credit Agreement, the
Notes and the other Credit Documents, including all renewals, extensions,
modifications and refinancings thereof, now or hereafter owing, whether for
principal, interest, fees, expenses or otherwise, and any and all reasonable
out-of-pocket expenses (including reasonable attorneys' fees actually incurred
and expenses, whether suit be brought or not, including reasonable attorneys'
fees, costs and expenses if appeal is taken) incurred by the Administrative
Agent in enforcing any rights under this Guaranty (collectively, the "Guaranteed
Obligations"), including without limitation, all interest which, but for the
filing of a petition in bankruptcy with respect to the Borrower, would accrue on
any principal portion of the Guaranteed Obligations. Any and all payments by the
Guarantors hereunder shall be made free and clear of and without deduction for
any set-off, counterclaim, or withholding so that, in each case, each Guaranteed
Party will receive, after giving effect to any Taxes (as such term is defined in
the Credit Agreement, but excluding Taxes imposed on overall net income of the
Guaranteed Party to the same extent as excluded pursuant to the Credit
Agreement), the full amount that it would otherwise be entitled to receive with
respect to the Guaranteed Obligations (but without duplication of amounts for
Taxes already included in the Guaranteed Obligations). The Guarantors
acknowledge and agree that this is a guarantee of payment when due, and not of
collection, and that this Guaranty may be enforced up to the full amount of the
Guaranteed Obligations without proceeding against the Borrower, against any
security for the Guaranteed Obligations, against any other Guarantor or under
any other guaranty covering any portion of the Guaranteed Obligations.
SECTION 2. GUARANTY ABSOLUTE. The Guarantors guarantee that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Guaranteed
Party with respect thereto. The liability of each Guarantor under this Guaranty
shall be primary, absolute and unconditional in accordance with its terms and
shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including, without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) any change in the time, place or manner of payment of, the amount
of or in any other term of, all or any of the Guaranteed Obligations, any
waiver, indulgence, renewal, extension, amendment or modification of or
addition, consent or supplement to or deletion from or any other action or
inaction under or in respect of the Credit Agreement, the other Credit
Documents, or any other documents, instruments or
-2-
<PAGE>
agreements relating to the Guaranteed Obligations or any other instrument
or agreement referenced to therein or any assignment or transfer of any
thereof;
(b) any lack of validity or enforceability of the Credit Agreement, the
other Credit Documents, or any other document, instrument or agreement
referred to therein or any assignment or transfer of any thereof;
(c) any furnishing to the Guaranteed Parties of any additional security
for the Guaranteed Obligations, or any sale, exchange, release or surrender
of, or realization on, any security for the Guaranteed Obligations;
(d) any release, adjustment settlement or compromise of any of the
Guaranteed Obligations, any security therefor, or any liability of any
other party with respect to the Guaranteed Obligations, or any
subordination of the payment of the Guaranteed Obligations to the payment
of any other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
any other Guarantor or the Borrower, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or lien on any
collateral, or any amendment or waiver of or consent to departure from any
guaranty or security, for all or any of the Guaranteed Obligations;
(g) any application of sums paid by the Borrower or any other Person
with respect to the liabilities of the Borrower to the Guaranteed Parties,
regardless of what liabilities of the Borrower remain unpaid;
(h) any act or failure to act by any Guaranteed Party which may
adversely affect a Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty; and
(i) any other circumstance which might otherwise constitute a defense
available to, or a discharge or release of, any Guarantor.
If claim is ever made upon any Guaranteed Party for repayment or recovery of
any amount or amounts received in payment or, on account of any of the
Guaranteed Obligations, and any Guaranteed Party repays all or part of said
amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Guaranteed Party or any of its
property, or (b) any settlement or compromise of any such claim effected by the
Guaranteed Party with any such claimant (including the Borrower or a trustee in
bankruptcy for the Borrower), then and in such event the Guarantors agree that
any such judgment, decree, order, settlement or compromise shall be binding on
it, notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, the other Credit Documents, or any other instrument
-3-
<PAGE>
evidencing any liability of the Borrower, and the Guarantors shall be and remain
liable to the Guaranteed Party for the amounts so repaid or recovered to the
same extent as if such amount had never originally been paid to the Guaranteed
Party.
SECTION 3. WAIVER. The Guarantors hereby waive notice of acceptance of this
Guaranty, notice of any liability to which it may apply, and further waive
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any such liabilities, suit or taking of other action by the Guaranteed Parties
against, and any other notice to, the Borrower or any other party liable with
respect to the Guaranteed Obligations (including the Guarantors or any other
Person executing a guaranty of the obligations of the Borrower) and all other
defenses, offsets and counterclaims which any Guarantor may at any time have to
any claim of any Guaranteed Party against the Borrower.
SECTION 4. WAIVER OF SUBROGATION. No Guarantor will exercise any rights
against the Borrower which it may acquire by way of subrogation or contribution,
by any payment made hereunder or otherwise. Each Guarantor hereby expressly
waives any claim, right or remedy which such Guarantor may now have or hereafter
acquire against the Borrower that arises hereunder and/or from the performance
by any Guarantor hereunder, including, without limitation, any claim right or
remedy of the Guaranteed Parties against the Borrower or any security which the
Guaranteed Parties now has or hereafter acquires, whether or not such claim,
right or remedy arises in equity, under contract, by statute, under color of law
or otherwise.
SECTION 5. SEVERABILTY. Any provision of this Guaranty which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by a Guarantor therefrom shall in any
event be effective unless the same shall be in writing executed by the
Administrative Agent.
SECTION 7. NOTICES. All notices and other communications provided for
hereunder shall be given in the manner specified in the Credit Agreement (i) in
the case of the Administrative Agent, at the address specified for the
Administrative Agent in the Credit Agreement, and (ii) in the case of the
Guarantors, at the respective addresses specified for such Guarantors in the
Credit Agreement.
SECTION 8. NO WAIVER; REMEDIES. No failure on the part of the
Administrative Agent or other Guaranteed Parties to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. No notice to or demand on
any Guarantor in any case shall entitle such Guarantor to any other further
notice or demand in any similar or other circumstances or constitute a waiver of
the rights of the Administrative Agent or other Guaranteed Parties to any other
or further action in any
-4-
<PAGE>
circumstances without notice or demand. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9. RIGHT OF SET OFF. In addition to and not in limitation of all
rights of offset that the Administrative Agent or other Guaranteed Parties may
have under applicable law, the Administrative Agent or other Guaranteed Parties
shall, upon the occurrence of any Event of Default and whether or not the
Administrative Agent or other Guaranteed Parties have made any demand or the
Guaranteed Obligations are matured, have the right to appropriate and apply to
the payment of the Guaranteed Obligations, all deposits of any Guarantor
(general or special, time or demand, provisional or final) then or thereafter
held by and other indebtedness or property then or thereafter owing by the
Administrative Agent or other Guaranteed Parties to any Guarantor, whether or
not related to this Guaranty or any transaction hereunder. The Guaranteed
Parties shall promptly notify the relevant Guarantor of any offset hereunder.
SECTION 10. CONTINUING GUARANTY; BINDING EFFECT; INUREMENT. This Guaranty
is a continuing guaranty and shall (i) remain in full force and effect until
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty and the termination of all of the Commitiments, (ii) be
binding upon each Guarantor, its successors and assigns, and (iii) inure to the
benefit of and be enforceable by the Administrative Agent, its successors,
transferees and assigns, for the benefit of the Guaranteed Parties.
SECTION 11. GOVERNING LAW; SUBMISSION TO JURISDICTION; FULL FAITH AND
CREDIT; WAIVER OF JURY TRIAL.
(a) TO THE EXTENT THAT ANY GUARANTEED PARTY OBTAINS ANY JUDGMENT
AGAINST ANY GUARANTOR UNDER THIS GUARANTY, THE GUARANTORS DO HEREBY AGREE
THAT SUCH JUDGMENT SHALL BE ENTITLED TO "FULL FAITH AND CREDIT" WITH THE
SAME FORCE AND EFFECT AS IF SUCH JUDGMENT WAS RENDERED AGAINST SUCH
GUARANTOR BY A COURT OR OTHER TRIBUNAL LOCATED IN THE DOMICILE OF SUCH
GUARANTOR, IF DIFFERENT FROM THAT IN WHICH SUCH JUDGMENT IS RENDERED. THE
GUARANTORS HEREBY AGREE TO THE VALIDITY AND ENFORCEABILIY OF ANY SUCH
JUDGMENT AND SHALL NOT SEEK TO CHALLENGE OR "GO BEHIND" THE FACE OF SUCH
JUDGMENT.
(b) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER 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 FLORIDA.
(c) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR
OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE CIRCUIT COURT OF PALM BEACH
COUNTY OF THE STATE OF
-5-
<PAGE>
FLORIDA OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF FLORIDA, AND, BY EXECUTION AND
DELIVERY OF THIS GUARANTY, EACH GUARANTOR HEREBY CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID COURTS.
EACH GUARANTOR 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 ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF
THIS GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY LENDER OR THE ADMINISTRATIVE AGENT TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER
JURISDICTION.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
IN CONNECTION WITH ANY CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION
HEREUNDER OR THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDERS TO EXTEND CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF
THE BORROWER. FURTHER, GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OF
THE AGENTS OR LENDERS NOR ANY COUNSEL FOR THE AGENTS OR LENDERS HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENTS OR LENDERS WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF
JURY TRIAL PROVISION. NO REPRESENTATIVE OF THE AGENTS OR LENDERS NOR
COUNSEL FOR THE AGENTS OR LENDERS HAS THE AUTHORITY TO WAIVE, CONDITION OR
MODIFY THIS PROVISION.
(e) GUARANTORS FURTHER IRREVOCABLY CONSENT 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 EACH GUARANTOR AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. GUARANTORS HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION THEY MAY HAVE 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
-6-
<PAGE>
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT.
(f) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER, ANY
HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST A GUARANTOR IN ANY OTHER JURISDICTION.
SECTION 12. SUBORDINATION OF THE BORROWER'S OBLIGATIONS TO THE
GUARANTORS. As an independent covenant, each Guarantor hereby expressly
covenants and agrees for the benefit of the Administrative Agent and other
Guaranteed Parties that all obligations and liabilities of the Borrower to such
Guarantor of whatsoever description including, without limitation, all
intercompany receivables of such Guarantor from the Borrower ("Junior Claims")
shall be subordinate and junior in right of payment to all obligations of the
Borrower to the Administrative Agent and other Guaranteed Parties under the
terms of the Credit Agreement and the other Credit Documents ("Senior Claims").
If an Event of Default shall occur, then, unless and until such Event of
Default shall have been cured, waived, or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities by setoff or otherwise) shall
be made by the Borrower to any Guarantor on account of or in any manner in
respect of any Junior Claim except such payments and distributions the proceeds
of which shall be applied to the payment of Senior Claims.
In the event of a Proceeding (as hereinafter defined), all Senior Claims
shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim except such payments and distributions the proceeds of which shall be
applied to the payment of Senior Claims. For the purposes of the previous
sentence, "Proceeding" means the Borrower or any Guarantor shall commence a
voluntary case concerning itself under the Bankruptcy Code or any other
applicable bankruptcy laws; or any involuntary case is commenced against the
Borrower or any Guarantor; or a custodian (as defined in the Bankruptcy Code or
any other applicable bankruptcy laws) is appointed for, or takes charge of, all
or any substantial part of the property of the Borrower or any Guarantor, or the
Borrower or any Guarantor commences any other proceedings under any
reorganization arrangement, adjustment of debt relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any Guarantor, or any such
proceeding is commenced against the Borrower or any Guarantor, or the Borrower
or any Guarantor is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
any Guarantor suffers any appointment of any custodian or the like for it or any
substantial part of its property; or the Borrower or any Guarantor makes a
general assignment for the benefit of creditors; or the Borrower or any
Guarantor 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 the Borrower or any
Guarantor shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts;
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<PAGE>
or the Borrower or any Guarantor 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 shall be taken by the Borrower or any Guarantor for the purpose
of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is made to a
Guarantor in contravention of this Section 12, such payment or distribution
shall be deemed received in trust for the benefit of the Administrative Agent
and other Guaranteed Parties and shall be immediately paid over to the
Administrative Agent for application against the Guaranteed Obligations in
accordance with the terms of the Credit Agreement.
Each Guarantor agrees to execute such additional documents as the
Administrative Agent may reasonably request to evidence the subordination
provided for in this Section 12.
SECTION 13. JUDGMENT CURRENCY.
(a) The Guarantors' obligations hereunder to make payments in a
particular currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in
or converted into any currency other than the Obligation Currency, except
to the extent that such tender or recovery results in the effective receipt
by the Guaranteed Parties of the full amount of the Obligation Currency
expressed to be payable under this Guaranty or the Credit Agreement. If for
the purpose of obtaining or enforcing judgment against any Guarantor in any
court or in any jurisdiction, it becomes necessary to convert into or from
any currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made at the currency
equivalent determined, in each case, as on the day immediately preceding
the day on which the judgment is given (such Business Day being hereafter
referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Guarantors covenant and agree to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount), as
may be necessary to ensure that the amount paid in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment,
will produce the amount of the Obligation Currency which could have been
purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate of exchange prevailing on the Judgment
Currency Conversion Date.
(c) For purposes of determining the currency equivalent for this
Section, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.
(d) If the Obligation Currency is U.S. Dollars, the currency equivalent
shall be the Dollar Equivalent.
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SECTION 14. AUTOMATIC ACCELERATION IN CERTAIN EVENTS. Upon the occurrence
of an Event of Default specified in Article 9 of the Credit Agreement, all
Guaranteed Obligations shall automatically become immediately due and payable by
the Guarantors, without notice or other action on the part of the Administrative
Agent or other Guaranteed Parties, and regardless of whether payment of the
Guaranteed Obligations by the Borrower has then been accelerated. In addition,
if any event of the types described in Article 9 of the Credit Agreement should
occur with respect to any Guarantor, then the Guaranteed Obligations shall
automatically become immediately due and payable by such Guarantor, without
notice or other action on the part of the Administrative Agent or other
Guaranteed Parties, and regardless of whether payment of the Guaranteed
Obligations by the Borrower has then been accelerated.
SECTION 15. SAVINGS CLAUSE.
(a) It is the intent of each Guarantor and the Guaranteed Parties that
each Guarantor's maximum obligations hereunder shall be, but not in excess
of:
(i) in a case or proceeding commenced by or against such Guarantor
under the Bankruptcy Code on or within one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount
which would not otherwise cause the Guaranteed Obligations (or any
other obligations of such Guarantor to the Guaranteed Parties) to be
avoidable or unenforceable against such Guarantor under (A) Section 548
of the Bankruptcy Code or (B) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such case or proceeding
by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code subsequent to one year from the
date on which any of the Guaranteed Obligations are incurred, the
maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) to be avoidable or unenforceable against such
Guarantor under any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the
Bankruptcy Code (including, without limitation, any other bankruptcy,
reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum
amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of such Guarantor to the Guaranteed Parties) to
be avoidable or unenforceable against such Guarantor under such law,
statute or regulation including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding.
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(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 15(a), but only to the extent that
the Guaranteed Obligations would otherwise be subject to avoidance under
the Avoidance Provisions if such Guarantor is not deemed to have received
valuable consideration, fair value or reasonably equivalent value for the
Guaranteed Obligations, or if the Guaranteed Obligations would render the
Guarantor insolvent, or leave the Guarantor with an unreasonably small
capital to conduct its business, or cause the Guarantor to have incurred
debts (or to have intended to have incurred debts) beyond its ability to
pay such debts as they mature, in each case as of the time any of the
Guaranteed Obligations are deemed to have been incurred under the Avoidance
Provisions and after giving effect to contribution as among Guarantors, the
maximum Guaranteed obligations for which such Guarantor shall be liable
hereunder shall be reduced to that amount which, after giving effect
thereto, would not cause the Guaranteed Obligations (or any other
obligations of such Guarantor to the Guaranteed Parties), as so reduced, to
be subject to avoidance under the Avoidance Provisions. This Section 15(b)
is intended solely to preserve the rights of the Guaranteed Parties
hereunder to the maximum extent that would not cause the Guaranteed
Obligations of any Guarantor to be subject to avoidance under the Avoidance
Provisions, and neither such Guarantor nor any other Person shall have any
right or claim under this Section 15 as against the Guaranteed Parties
that would not otherwise be available to such Person under the Avoidance
Provisions.
(c) None of the provisions of this Section 15 are intended in any
manner to alter the obligations of any holder of Subordinated Debt or the
rights of the holders of "senior indebtedness" as provided by the terms of
the Subordinated Debt. Accordingly, it is the intent of each of the
Guarantors that, in the event that any payment or distribution is made with
respect to the Subordinated Debt prior to the payment in full of the
Guaranteed Obligations by virtue of the provisions of this Section 15, in
any case or proceeding of the kinds described in clauses (i)-(iii) of
Section 15(a), the holders of the Subordinated Debt shall be obligated to
pay or deliver such payment or distribution to or for the benefit of the
Guaranteed Parties. Furthermore, in respect of the Avoidance Provisions,
it is the intent of each Guarantor that the subrogation rights of the
holders of Subordinated Debt with respect to the obligations of the
Guarantor under this Guaranty, be subject in all respects to the provisions
of Section 15(b).
SECTION 16. INFORMATION. Each of the Guarantors assumes all responsibility
for being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none of the
Guaranteed Parties will have any duty to advise any of the Guarantors of
information known to it or any of them regarding such circumstances or risks.
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SECTION 17. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it
contained in Article 6 of the Credit Agreement are true and correct.
SECTION 18. SURVIVAL OF AGREEMENT. All agreements, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and the Credit Agreement, the making of the Loans and the execution and delivery
of the Notes and the other Credit Documents.
SECTION 19. COUNTERPARTS. This Guaranty and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
SECTION 20. CURRENCY OF PAYMENT. All payments to be made by the Guarantors
hereunder shall be made in the relevant currency or currencies in which the
Guaranteed Obligations are denominated in immediately available funds. If any
Guarantor is unable for any reason to effect payment of any of the Guaranteed
Obligations in the currency in which such Guaranteed Obligations are
denominated, the Guaranteed Partes may, at their option, require such payment to
be made in the Dollar Equivalent of such currency. If in any case where any of
the Guarantors shall make any such payment in the Dollar Equivalent, the
Guarantors agree to hold the Guaranteed Parties harmless from any loss incurred
by the Lenders arising from any change in the value of Dollars in relation to
such currency between the date such payment became due and the date of payment
thereof.
SECTION 21. ADDITIONAL GUARANTORS. Upon execution and delivery by any
Subsidiary of the Borrower of an instrument in the form of Exhibit L to the
Credit Agreement such Subsidiary of the Borrower shall become a Guarantor
hereunder with the same force and effect as if originally named a Guarantor
herein (each an "Additional Guarantor"). The execution and delivery of any such
instrument shall not require the consent of any Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any Additional Guarantor as a party to
this Guaranty.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by their respective duly authorized officers as of the
date first above written.
GUARANTORS:
ATTEST: TELECOMMUNICATION SERVICES
GROUP, INC., a Florida corporation
______________________ By:________________________________
Print Name:________________________
Title: ____________________________
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ATTEST: ABLE INTEGRATED SYSTEMS, INC., a
Florida corporation
____________________ By:______________________________
Print Name:______________________
Title:___________________________
ATTEST: ABLE COMMUNICATION SERVICES, INC.,
a Florida corporation
_____________________ By:______________________________
Print Name:______________________
Title:___________________________
ATTEST: H.C. CONNELL, INC., a Florida corporation
_____________________ By: ____________________________
Print Name:_____________________
Title: _________________________
ATTEST: DIAL COMMUNICATIONS, INC., a Florida
corporation
______________________ By:_____________________________
Print Name:_____________________
Title: _________________________
ATTEST: TRAFFIC MANAGEMENT GROUP, INC.,
a Florida corporation
_____________________ By:____________________________
Print Name:____________________
Title: ________________________
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ATTEST: TRANSPORTATION SAFETY
CONTRACTORS, INC., a Florida corporation
_______________________ By:____________________________
Print Name: ___________________
Title:_________________________
ATTEST: TRANSPORTATION SAFETY
CONTRACTORS OF VIRGINIA, INC., a
Virginia corporation
_________________________ By: ___________________________
Print Name: ___________________
Title: ________________________
ATTEST: GEORGIA ELECTRIC COMPANY, a Georgia
corporation
__________________________ By: ___________________________
Print Name: ___________________
Title: ________________________
ATTEST: COMMUNICATIONS DEVELOPMENT
GROUP, INC., a Florida corporation
_____________________________ By: __________________________
Print Name:___________________
Title: _______________________
ATTEST: ABLE WIRELESS, INC., a Florida corporation
______________________________ By: ____________________________
Print Name: ____________________
Title: _________________________
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<PAGE>
EXHIBIT C
FORM OF
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT dated as of April 6, 1998 (this "Contribution
Agreement") by and among ABLE TELCOM HOLDING CORP., a Florida corporation (the
"Borrower"), each of the Subsidiaries of the Borrower listed on the signature
pages hereof (collectively, and together with any successors, referred to herein
individually as a "Guarantor" and collectively as "Guarantors") and SUNTRUST
BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION, as Administrative Agent (the
"Administrative Agent"), in its capacity as agent for the Lenders identified on
the signature pages to the Credit Agreement (as defined below) and each assignee
thereof becoming a "lender" as provided therein (the "Lenders") for the purpose
of establishing rights and obligations of contribution among the Guarantors in
connection with the Guaranty Agreement (as such term is defined below).
RECITALS
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into that certain Senior Secured Revolving Credit Agreement dated as of
April 6, 1998 (as it may hereafter be amended, restated, modified, or
supplemented from time to time, the "Credit Agreement") capitalized terms used
herein but not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement);
WHEREAS, the obligation of Lenders to lend under the Credit Agreement is
conditioned on, among other things, the provision of a Contribution Agreement in
the form hereof;
WHEREAS, Guarantors and Administrative Agent have entered into the
Subsidiary Guaranty Agreement dated as of even date herewith (the "Guaranty
Agreement") pursuant to which such Guarantors have agreed to guarantee all the
obligations of the Borrower pursuant to the Credit Agreement and all other
Guaranteed Obligations (as defined in the Guaranty Agreement);
WHEREAS, as a result of transactions contemplated by the Credit Agreement,
Guarantors will benefit from the Guaranteed Obligations and in consideration
thereof desire to enter into this Contribution Agreement to provide a fair and
equitable arrangement to make contributions in the event payments are made under
the Guaranty Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, each Guarantor and Administrative Agent hereby agree
as follows:
<PAGE>
SECTION 1. INDEMNITY AND SUBROGATION. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Guaranty Agreement in respect of the
obligations of the Borrower under the terms of the Credit Agreement, the
Borrower shall indemnify such Guarantor for the full amount of such payment and
(b) in the event any assets of any Guarantor shall be sold pursuant to any stock
pledge agreement or similar instrument or agreement to satisfy a claim of any
Guaranteed Party (as defined in the Guaranty Agreement), the Borrower shall
indemnify such Guarantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold. Each Guarantor has waived its
rights to subrogation, pursuant to Section 4 of the Guaranty Agreement.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each Guarantor agrees (subject to
Section 3) that in the event a payment shall be made by any Guarantor under the
Guaranty Agreement or assets of any Guarantor shall be sold pursuant to any
Security Document or similar instrument or agreement to satisfy a claim of any
Guaranteed Party, and such Guarantor (the "Claiming Guarantor") shall not have
been indemnified by the Borrower as provided in Section 1, each other Guarantor
(a "Contributing Guarantor") shall indemnify the Claiming Guarantor in an amount
equal to the amount of such payment or the greater of the book value or the fair
market value of such assets, as the case may be, multiplied by a fraction, the
numerator of which shall be the consolidated net worth of the Contributing
Guarantor on the date hereof detained in accordance with generally accepted
accounting principles, and the denominator of which shall be the sum of the
consolidated net worth of all the Guarantors on the date hereof determined in
accordance with generally accepted accounting principles. Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Guarantor under Section 1 to
the extent of such payment.
SECTION 3. SUBORDINATION. Notwithstanding any provision of this Agreement
to the contrary (i) all rights of the Guarantors under Sections 1 and 2 and all
other rights of indemnity or contribution under applicable law or otherwise
shall be fully subordinated to the indefeasible payment in full of the
Guaranteed Obligations (as defined in the Guaranty Agreement), and (ii) no such
rights shall be exercised until all of the Guaranteed Obligations shall have
been irrevocably paid in full and the Credit Agreement shall have been
irrevocably terminated. If any amount shall be paid to any Guarantor on account
of such indemnity or contribution rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held in trust
for the benefit of the Guaranteed Parties (as defined in the Guaranty Agreement)
and shall forthwith be paid to the Administrative Agent to be credited and
applied upon the Guaranteed Obligations, whether matured or ummatured, in
accordance with the terms of the Credit Agreement. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 1 and 2 (or
any other payments required under applicable law or otherwise) shall in any
respect limit the obligations and liabilities of any Guarantor with respect to
the Guaranty Agreement, and each Guarantor shall remain liable for the fall
amount of the obligations of such Guarantor under such Guaranty Agreement.
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SECTION 4. ALLOCATION. If at any time there exists more than one Claiming
Guarantor with respect to the Guaranty Agreement, then payment from other
Guarantors pursuant to this Contribution Agreement shall be allocated among such
Claiming Guarantors in proportion to the total amount of money paid for or on
account of the Guaranteed Obligations by each such Claiming Guarantor pursuant
to the Guaranty Agreement.
SECTION 5. PRESERVATION OF RIGHTS. This Contribution Agreement shall not
limit or affect any right which any Guarantor may have against any other Person
that is not a party hereto.
SECTION 6. SUBSIDIARY PAYMENT. The amount of contribution payable under
this Contribution Agreement by any Guarantor with respect to the Guaranty
Agreement shall be reduced by the amount of any contribution paid hereunder by a
Subsidiary of such Guarantor with respect to the Guaranty Agreement.
SECTION 7. ASSET SALE. If all of the stock of any Guarantor shall be sold
or otherwise disposed of (including by merger or consolidation) in an asset sale
not prohibited by the Credit Agreement or otherwise consented to by the
Administrative Agent and the Required Lenders under the Credit Agreement, the
agreements of such Guarantor hereunder shall automatically be discharged and
released without any further action by such Guarantor and shall be assumed in
full by the corporation which prior to such asset sale or consent owned the
stock of such Guarantor, effective as of the time of such asset sale or consent.
The Borrower shall cause any such corporation which is not a Guarantor to become
a party to this Contribution Agreement and the Guaranty Agreement unless
otherwise agreed in writing by the Administrative Agent and the Required
Lenders.
SECTION 8. EQUITABLE ALLOCATION. If as a result of any reorganization,
recapitalization or other corporate change in the Borrower or any of its
Subsidiaries, or as a result of any amendment, waiver or modification of the
terms and conditions governing the Guaranty Agreement or any of the Guaranteed
Obligations, or for any other reason, the contributions under this Contribution
Agreement become inequitable, the parties hereto shall promptly modify and amend
this Contribution Agreement to provide for an equitable allocation of
contributions. All such modifications and amendments shall be in writing and
signed by all parties hereto.
SECTION 9. ASSET OF PARTY TO WHICH CONTRIBUTION AND INDEMNIFICATION ARE
OWING. The parties hereto acknowledge that the right to contribution and
indemnification hereunder shall each constitute an asset in favor of the party
to which such contribution or indemnification is owing.
SECTION 10. SUCCESSORS AND ASSIGNS; AMENDMENTS. This Contribution Agreement
shall be binding upon each party hereto and its respective successors and
assigns and shall inure to the benefit of the parties hereto and their
respective successors and assigns. None of any Guarantors rights or any interest
therein under this Contribution Agreement Agent may be assigned or transferred
without the written consent of the Administrative Agent. In the event of any
such transfer or assignment of rights by any Guarantor, the rights and
privileges herein conferred upon
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that Guarantor shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof. This Contribution
Agreement shall not be amended without the prior written consent of the
Administrative Agent.
SECTION 11. TERMINATION. This Contribution Agreement, as it may be modified
or amended from time to time, shall remain in effect, and shall not be
terminated as to the Guaranty Agreement, until the Guaranty Agreement has been
discharged or otherwise satisfied in accordance with its terms.
SECTION 12. CHOICE OF LAW. THIS CONTRIBUTION AGREEMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF FLORIDA WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 13. COUNTERPARTS. This Contribution Agreement and any amendments,
waivers, consents or supplements may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
shall constitute but one and the same instrument.
SECTION 14. ADDITIONAL GUARANTORS. Upon execution and delivery, after the
date hereof, by Administrative Agent and a Subsidiary of the Borrower of a
Supplement to Contribution Agreement in the form of Exhibit "M" to the Credit
Agreement, such Subsidiary of the Borrower shall become a Guarantor hereunder
with the same force and effect as if originally named as a Guarantor hereunder.
The rights and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Guarantor as a party to
this Agreement.
SECTION 15. SEVERABILITY. In case any provision in or obligation under this
Contribution Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality or 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 16. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy
communication) and mailed, telegraphed, telecopied or delivered, if to any
Guarantor, addressed to it at the address set forth for such party in the Credit
Agreement. All such notices and other communications shall be given and deemed
to have been received as provided by the terms of the Credit Agreement.
SECTION 17. GOVERNING LAW; SUBMISSION TO JURISDICTION; FULL FAITH AND
CREDIT; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH
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AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF FLORIDA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CIRCUIT COURT OF PALM BEACH COUNTY,
FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF FLORIDA, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS.
(c) TO THE EXTENT THAT ANY AGENT OR LENDER OBTAINS ANY JUDGMENT AGAINST ANY
GUARANTOR UNDER ANY CREDIT DOCUMENT, GUARANTORS DO HEREBY AGREE THAT SUCH
JUDGMENT SHALL BE ENTITLED TO "FULL FAITH AND CREDIT" WITH THE SAME FORCE AND
EFFECT AS IF SUCH JUDGMENT WAS RENDERED AGAINST THE GUARANTOR BY A COURT OR
OTHER TRIBUNAL LOCATED IN THE DOMICILE OF THE GUARANTOR IF DIFFERENT FROM THAT
IN WHICH SUCH JUDGMENT IS RENDERED. GUARANTORS HEREBY AGREE TO THE VALIDITY AND
ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT SEEK TO CHALLENGE OR "GO
BEHIND" THE FACE OF SUCH JUDGMENT.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT OF TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH ANY CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION
HEREUNDER OR THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS
TO EXTEND CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE BORROWER.
FURTHER, GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OF THE AGENTS OR
LENDERS NOR ANY COUNSEL FOR THE AGENTS OR LENDERS HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE AGENTS OR LENDERS WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF JURY TRIAL PROVISION. NO
REPRESENTATIVE OF THE AGENTS OR LENDERS NOR COUNSEL FOR THE AGENTS OR LENDERS
HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.
(e) GUARANTORS FURTHER IRREVOCABLY CONSENT 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 EACH
GUARANTOR AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. GUARANTORS HEREBY IRREVOCABLY WAIVE ANY
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OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION THEY MAY HAVE 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 ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS IN RESPECT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT.
(t) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER, ANY
HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST A
GUARANTOR IN ANY OTHER JURISDICTION.
IN WITNESS WHEREOF, the Borrower, the Guarantors, and the Administrative
Agent have duly executed this Contribution Agreement as of the day and year
first above written.
BORROWER:
ATTEST ABLE TELCOM HOLDING CORP., a Florida
corporation
___________________ By: ________________________________
Print Name: ________________________
Title: President
SUBSIDIARIES:
ATTEST: TELECOMMUNICATION SERVICES
GROUP, INC., a Florida corporation
____________________ By: _______________________________
Print Name: _______________________
Title:_____________________________
ATTEST: ABLE INTEGRATED SYSTEMS, INC., a
Florida corporation
____________________ By: _______________________________
Print Name: _______________________
Title: ____________________________
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<PAGE>
ATTEST: ABLE COMMUNICATION SERVICES, INC.,
a Florida corporation
____________________ By: _______________________________
Print Name: _______________________
Title: ____________________________
ATTEST: H.C. CONNELL, INC., a Florida corporation
____________________ By: _______________________________
Print Name: _______________________
Title: ____________________________
ATTEST: DIAL COMMUNICATIONS, INC., a Florida
corporation
____________________ By: _______________________________
Print Name: _______________________
Title: ____________________________
ATTEST: TRAFFIC MANAGEMENT GROUP, INC.,
a Florida corporation
____________________ By: _______________________________
Print Name: _______________________
Title: ____________________________
ATTEST: TRANSPORTATION SAFETY
CONTRACTORS, INC., a Florida corporation
____________________ By: ______________________________ By:
Print Name: ______________________
Title: ___________________________
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<PAGE>
ATTEST: TRANSPORTATION SAFETY
CONTRACTORS OF VIRGINIA, INC., a
Virginia corporation
____________________ By:______________________________ By:
Print Name: _____________________
Title: __________________________
ATTEST: GEORGIA ELECTRIC COMPANY, a Georgia
corporation
____________________ By:______________________________ By:
Print Name: _____________________
Title: __________________________
ATTEST: COMMUNICATIONS DEVELOPMENT
GROUP, INC., a Florida corporation
____________________ By:______________________________ By:
Print Name: _____________________
Title: __________________________
ATTEST: ABLE WIRELESS, INC., a Florida corporation
____________________ By: _____________________________ By:
Print Name: _____________________
Title:___________________________
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<PAGE>
LENDER:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and
as Administrative Administrative Agent
By: _____________________________
__________________, Vice President
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<PAGE>
EXHIBIT D
THE INTERNATIONAL GROUP
COMMUNICATIONS DEVELOPMENT GROUP, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: the Company
ABLE TELCOM INTERNATIONAL, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: the Company
ABLE TELCOM C.A.
Jurisdiction of incorporation or organization: Venezuela
Owned by: 80% owned by the Company
SEIMA TELECOMUNICACOES LTDA.
Jurisdiction of incorporation or organization: Brazil
Owned by: 75% owned by the Company
NEUROTECHNOLOGY, INC.
Jurisdiction of incorporation or organization: Florida
Owned by: Communications Development Group, Inc.
TELECOMUNICATIONS TECHNOLOGIES INC., TTH, C.A.
Jurisdiction of incorporation or organization: Venezuela
Owned by: 80% owned by the Company
ABLE TELCOM DO BRASIL EMPREENDIMENTOS E PARTICIPACOES LTDA
Jurisdiction of incorporation or organization: Brazil
Owned by: 99% owned by the Company
INVERSIONES ABLE TELCOM HOLDING CORPORATION S.A.
Jurisdiction of incorporation or organization: Chile
Owned by: the Company
<PAGE>
EXHIBIT "E"
FORM OF
REVOLVING CREDIT NOTE
________________, 1998 $ __________________
___________, ________________
FOR VALUE RECEIVED, the undersigned, ABLE TELCOM HOLDING CORP., a Florida
corporation (the "Borrower"), promises to pay to the order of ____________, a
_________________, (the "Bank") at __________________ ___________________, the
principal office of the Bank at or at such other place as the holder hereof may
designate by notice in writing to Borrower, in immediately available funds in
lawful money of the United States of America, on the sooner of (i) the
Termination Date (as defined in the Agreement hereinafter described), or (ii)
acceleration of this indebtedness as hereinafter provided, the lesser of (i) the
principal sum of _______________ ($____________) or (ii) so much thereof as
shall have been from time to time disbursed hereunder by the Bank in accordance
with that certain Senior Secured Revolving Credit Agreement dated as of
________________, 1998 (as amended, modified or supplemented, the "Agreement")
by and among the Borrower, the Bank, and the other Lenders which are parties
thereto from time to time, and not theretofore repaid as reflected on the
records of the Administrative Agent.
In addition to principal, Borrower agrees to pay interest on the principal
amounts disbursed hereunder from time to time from the date of each disbursement
until paid at such simple rates of interest per annum and upon such dates as
provided for in the Agreement. Interest shall accrue on the outstanding
principal balance from the date hereof up to and through the date on which all
principal and interest hereunder is paid in full, and shall be computed on the
basis provided in the Agreement. Such interest is to be paid to the
Administrative Agent as provided in the Agreement.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant to
the terms and conditions of the Agreement to which reference is hereby made for
a full and complete description of such terms and conditions. All capitalized
terms used in this Note shall have the same meanings as set forth in the
Agreement.
Upon the occurrence of an Event of Default, Bank shall have a right of
set-off against any deposit balances of Borrower in the possession of the Bank
and the Bank may apply the same against payment of this Note or any other
indebtedness of Borrower to the Bank. The payment of any indebtedness evidenced
by this Note prior to the Termination Date or demand shall not affect the
enforceability of this Note as to any future, different or other indebtedness
incurred hereunder by the Borrower. In the event the indebtedness evidenced by
this Note is collected by legal action or through an attorney-at-law, the Bank
shall be entitled to recover from Borrower all costs of collection, including,
without limitation, reasonable attorneys' fees if collected by or through an
attorney-at-law.
<PAGE>
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower shall, in the absence
of manifest error, constitute presumptive evidence of such disbursement and
that such advance was made and borrowed under the Agreement. Such account
records shall constitute, in the absence of manifest error, presumptive evidence
of principal amounts outstanding and the payments made under the Agreement at
any time and from time to time, provided that the failure of Bank or any holder
hereof to record in such account the type or amount of any advance shall not
affect the obligation of the undersigned to repay such amount together with
interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in the
Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida. Time is of the essence of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY WAIVED.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
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
FLORIDA.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CIRCUIT COURT OF PALM BEACH COUNTY,
FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF FLORIDA, 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.
TO THE EXTENT THAT ANY AGENT OR LENDER OBTAINS ANY JUDGMENT AGAINST
BORROWER UNDER ANY CREDIT DOCUMENT, BORROWER DOES HEREBY AGREE THAT SUCH
JUDGMENT SHALL BE ENTITLED TO "FULL FAITH AND CREDIT" WITH THE SAME FORCE AND
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<PAGE>
EFFECT AS IF SUCH JUDGMENT WAS RENDERED AGAINST THE BORROWER BY A COURT OR OTHER
TRIBUNAL LOCATED IN THE DOMICILE OF THE BORROWER, IF DIFFERENT FROM THAT IN
WHICH SUCH JUDGMENT IS RENDERED. BORROWER HEREBY AGREES TO THE VALIDITY AND
ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT SEEK TO CHALLENGE OR "GO
BEHIND" THE FACE OF SUCH JUDGMENT.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH ANY
CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS TO EXTEND CREDIT TO OR
OTHERWISE BECOME OR REMAIN A CREDITOR OF THE BORROWER. FURTHER, BORROWER HEREBY
CERTIFIES THAT NO REPRESENTATIVE OF THE AGENTS OR LENDERS NOR ANY COUNSEL FOR
THE AGENTS OR LENDERS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENTS
OR LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT OF JURY TRIAL PROVISION. NO REPRESENTATIVE OF THE AGENTS OR
LENDERS NOR COUNSEL FOR TITLE AGENTS OR LENDERS HAS THE AUTHORITY TO WAIVE,
CONDITION OR MODIFY THIS PROVISION.
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.
BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION IT MAY HAVE 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
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT.
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<PAGE>
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER, ANY HOLDER OF A
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.
Executed under hand and seal of the Borrower as of the day and year first
above written on this ________________ day of _______________, 1998.
ABLE TELCOM HOLDING CORP.
By:____________________________
Name:__________________________
Title:_________________________
ACKNOWLEDGEMENT
STATE OF ___________)
COUNTY OF __________)
On this the day______ of ________, 1998, personally appeared the of Able
Telcom Holding Corp., a Florida corporation, and before me, executed this
Revolving Credit Note in the principal amount of ______________ ($____________),
payable to ____________________________.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_________________________________________
Signature of Notary Public, State of __________
__________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public) Personally known _; OR Produced
identification _____________
Type of identification produced:
__________________________________________
(Notary Seal)
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<PAGE>
EXHIBIT F
FORM OF
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Security Agreement") made and entered into
this _________ day of __________________, 1998 by and among:
ABLE TELCOM HOLDING CORP., a Florida corporation, 1601 Forum Place, Suite
1110, West Palm Beach, Florida 33401 (hereinafter referred to as the
"Borrower") and TELECOMMUNICATION SERVICES GROUP, INC., a Florida
corporation, ABLE INTEGRATED SYSTEMS, INC., a Florida corporation, ABLE
COMMUNICATION SERVICES, INC., a Florida corporation, H.C. CONNELL, INC., a
Florida corporation, DIAL COMMUNICATIONS, INC., a Florida corporation,
TRAFFIC MANAGEMENT GROUP, INC., a Florida corporation, TRANSPORTATION
SAFETY CONTRACTORS, INC., a Florida corporation, TRANSPORTATION SAFETY
CONTRACTORS OF VIRGINIA, INC., a Virginia corporation, GEORGIA ELECTRIC
COMPANY, a Georgia corporation, COMMUNICATIONS DEVELOPMENT GROUP, INC., a
Florida corporation, and ABLE WIRELESS, INC., a Florida corporation
(hereinafter individually referred to as a "Subsidiary," and collectively
referred to as the "Subsidiaries"),
and
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION, a national banking
association, (the "Administrative Agent"), individually and in its
capacity as agent for banks and other lending institutions parties to the
Loan Agreement (as hereinafter defined), and BANK OF AMERICA, FSB,
individually and as Syndication Agent (the "Syndication Agent"), and each
assignee thereof becoming a "Lender" as provided therein (hereinafter
individually referred to as a Lender and collectively referred to the
"Lenders").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the other banks signatories thereto
from time to time, and the Administrative Agent, individually and as agent, are
parties to a Senior Secured Revolving Credit Agreement, dated as of
__________________, 1998 (as hereinafter amended,
<PAGE>
modified or supplemented, the "Loan Agreement"); and except as otherwise defined
herein, terms used herein and defined in the Loan Agreement shall be used herein
as so defined therein;
WHEREAS, it is a condition precedent to the extension of credit under the
Loan Agreement that the Borrower and the Subsidiaries grant to the
Administrative Agent an enforceable and perfected security interest in certain
collateral as hereinafter set forth.
NOW, THEREFORE, the Borrower and the Subsidiaries agree with the
Administrative Agent and the Lenders as follows:
1. DEFINITIONS. As used in this Security Agreement, the following terms
and conditions shall have the meanings set forth below:
"ACCOUNT DEBTOR" shall mean any person who is obligated on an Account or
Chattel Paper.
"LIABILITIES" shall mean any and all of the following:
(a) Principal and interest and all other monies due or to become due under
the Promissory Notes, including any extensions or renewals thereof.
(b) Any and all other liabilities or obligations, primary, secondary,
direct, contingent, sole, joint or several, due or to become due, or which may
be hereafter contracted or acquired of the Borrower to the Administrative Agent
and the Lenders under or pursuant to the Credit Documents including, but not
limited to, any and all loans or other advances, whether obligatory or
otherwise, which the Administrative Agent, on behalf of the Lenders, may, but is
not obligated to, make to the Borrower at any time in the future.
(c) All other monies (in addition to principal and interest) due or to
become due the Administrative Agent or any Lender from the Borrower including,
but not limited to, all costs and expenses including attorney's fees which the
Administrative Agent or any Lender is entitled or permitted for any reason
whatsoever to recover under any statute, promissory note or agreement, including
but not limited to, this Security Agreement and the Promissory Notes. As used
herein and elsewhere in this Security Agreement, costs and expenses, including
attorney's fees, shall include costs and expenses incurred by the Administrative
Agent or any Lender in proceeding against the Collateral or against the Borrower
or any Subsidiary and shall include costs and expenses, including attorney's
fees, which the Administrative Agent or any Lender may incur or become liable
for as a result of enforcing any of its rights and privileges under this
Security Agreement, whether in any initial suit or an appeal therefrom.
(d) Any future advances that the Administrative Agent, on behalf of the
Lenders, may make to the Borrower, under or pursuant to the Credit Documents
whether discretionary or obligatory, provided, however, that Administrative
Agent shall be under no duty whatsoever by virtue of this Security Agreement to
make any such future advances whatsoever to the Borrower. In the event the
Administrative Agent subsequent to the date of this Security
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<PAGE>
Agreement makes any advances to the Borrower, said advances shall conclusively
be deemed to be and shall be future advances under this subparagraph and within
the definition of Liabilities as defined herein.
"LICENSES" shall mean any license agreement under which the Borrower or any
Subsidiary is or becomes licensed to use a patent or trademark and any license
agreement under which the Borrower or any Subsidiary shall license any third
party to use any Patent or Trademark of the Borrower or any Subsidiary.
"PLACES OF BUSINESS" shall mean any location at which the Borrower or any
Subsidiary conducts its business, including, but not limiting to, the storage of
Inventory, all of which are set forth in Exhibit "A" attached hereto.
"PROCEEDS" shall mean all cash and non-cash proceeds received upon the
sale, exchange, collection or other disposition of the Collateral, including but
not limited to insurance payable by reason of loss or damage to Collateral;
PROVIDED, HOWEVER, that nothing in this definition shall in and of itself be
construed to grant the Borrower or any Subsidiary any authority whatsoever to
sell or otherwise dispose of the Collateral.
"PROMISSORY NOTES" shall mean, collectively, those certain Revolving Credit
Notes executed by the Borrower in favor of the Lenders dated April 6, 1998 in
the aggregate face amount of $25,000,000.00 and any and all amendments,
supplements, renewals, increases or replacements thereof.
"TRADEMARKS" shall mean trademarks, service marks, trademark registrations,
trade names and trademark and trade name registrations and applications (whether
state or federal), and renewals thereof, and all income royalties, damages and
payments now and hereafter due and/or payable under all trademarks and trademark
applications, including, without limitation, damages and payments for past or
future infringements thereof.
"UCC" shall mean the Florida Uniform Commercial Code as set forth in
Chapters 671 through 680, Florida Statutes, as the same may be amended from time
to time.
Other capitalized terms not otherwise defined herein or elsewhere in this
Security Agreement shall have the meanings set forth in the Loan Agreement.
2. COLLATERAL. As used in this Security Agreement, the term "Collateral"
shall mean
(a) the property described in subparagraphs (a) and (b) of the definition
of Collateral in the Loan Agreement;
(b) to the extent not encumbered above, all of the right, title and
interest of the Borrower and each Subsidiary, whether now owned or hereinafter
acquired, in and to the goods or other property represented by or securing the
Accounts, Chattel Paper and Instruments;
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<PAGE>
(c) all rights of the Borrower and each Subsidiary as an unpaid lien or,
including stoppage in transit, replevin and reclamation;
(d) all monies, bank accounts, balances, credits, deposits collections,
drafts, bills, notes, securities, and other property of every kind and nature
(whether tangible or intangible) now owned or hereafter acquired by the Borrower
and each Subsidiary and at any time in that actual or constructive possession of
(or in transit to) the Administrative Agent or the Syndication Agent or their
correspondents or agents in any capacity or for any purpose;
(e) all, books, records, ledger cards and other property relating to (a)
through (d) above, including computer programs, tapes and related software; and
(f) all Proceeds and products of (a) through (e) above.
3. GRANT OF SECURITY INTEREST. To secure the payment of all Liabilities to
the Administrative Agent and the Lenders, the Borrower and the Subsidiaries do
hereby each grant to the Administrative Agent a security interest in each and
all of the Collateral.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower and the
Subsidiaries do hereby represent and warrant to and covenant with the
Administrative Agent and the Lenders as follows:
(a) That the Borrower and each of the Subsidiaries is the absolute owner of
the Collateral free and clear of all liens and security interests whatsoever
except for (i) the security interest granted the Administrative Agent by this
Security Agreement, and (ii) the Permitted Liens.
(b) That the Collateral will be used solely for business purposes.
(c) That the Collateral will be kept at the address for the Borrower and
each Subsidiary as set forth at the beginning of this Security Agreement, or at
the other Places of Business of the Borrower and each Subsidiary, and that
except in the ordinary course of business or as otherwise provided under the
Loan Agreement neither the Borrower nor any Subsidiary shall remove the
Collateral from said location without the prior written consent of the
Administrative Agent and the Required Lenders.
(d) That except for Permitted Liens the Borrower and each Subsidiary will
defend the Collateral against the claims and demands of all persons at any time
claiming the same or any interest therein.
(e) That by virtue of a Security Agreement and the perfection of said
security interest in accordance with the provisions of paragraph 7 hereof, the
Administrative Agent has a valid, enforceable, perfected and first security
interest in the Collateral subject only
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<PAGE>
to the Permitted Liens, as they presently exist as of the date of this Security
Agreement or are hereafter incurred.
(f) That except (i) for the Permitted Liens, and (ii) as otherwise
permitted under the Loan Agreement, neither the Borrower nor any Subsidiary has
granted or shall grant to any person other than the Administrative Agent a
security interest in or other interest or claim in the Collateral.
(g) That except (i) for financing statements to perfect the Permitted
Liens, and as otherwise permitted under the Loan Agreement, there is not now and
will not be filed in the future in any jurisdiction, any financing statement
listing any person other than the Administrative Agent and the Lenders as a
secured party covering any or all of the Collateral.
(h) That neither the Borrower nor any Subsidiary will:
(i) permit any liens, security interests, or other encumbrances of any
nature whatsoever, other than (A) the Permitted Liens, (B) any security
interest in favor of the Administrative Agent, and (C) as expressly
permitted in the Loan Agreement to attach to any of the Collateral; or
(ii) permit any of the Collateral to be levied upon under legal
process, or permit anything to be done that may impair the value of any of
the Collateral or the security intended to be afforded by this Security
Agreement.
(i) That the parties intend that none of the Collateral shall become
fixtures and the Borrower and each Subsidiary shall take such actions as may be
reasonable and necessary to prevent the Collateral from becoming a fixture (and
it is expressly covenanted, warranted and agreed that the Collateral, and any
part thereof, whether affixed to any realty or not, shall be and remain personal
property), or to become an accession to other goods or property.
(j) That neither the Borrower nor any Subsidiary will sell, transfer, lease
or otherwise dispose of any of the Collateral or any interest therein or offer
to do so without the prior written consent of the Administrative Agent and the
Required Lenders provided, however, that as long as the Borrower or such
Subsidiary is not in default under this Security Agreement, it may (i) sell its
Inventory in the normal and ordinary course of its business (ii) replace its
Equipment due to depreciation and obsolescence and (iii) sell Collateral so long
as the proceeds are used to acquire replacement property of equal value which
comprises Collateral subject to the Security Interest.
(k) That neither the Borrower nor any Subsidiary will use the Collateral or
permit the Collateral to be used in violation of any statute or ordinance, the
result of which could have a Material Adverse Affect and the Borrower and each
Subsidiary shall further comply with all statutes, regulations and ordinances
applicable to the use or its ownership of the Collateral and to its business
except as otherwise provided in the Loan Agreement.
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<PAGE>
(l) That the Borrower and each Subsidiary will pay promptly when due all
taxes and assessments upon the Collateral or for its use or operation or upon
any note or notes or other writing evidencing the Liabilities, or any of them
except, in each case, the validity and amount of which is being contested in
good faith by appropriate proceedings and adequate reserves are maintained with
respect thereto.
(m) That during the term of this Security Agreement, the Borrower and each
Subsidiary shall (i) cause to be maintained on the Collateral hazard insurance
in the manner required under the Loan Agreement, (ii) cause the Administrative
Agent to be noted as a loss payee under said policies of insurance, and (iii)
promptly deliver to the Administrative Agent said policy of insurance along with
a certificate reflecting the Administrative Agent as a loss payee and providing
for not less than thirty (30) days notice to the Administrative Agent prior to
expiration or cancellation of same, and the Administrative Agent shall be
entitled to retain in its possession said policies or certificates.
(n) That at its option, the Administrative Agent may discharge taxes,
liens, security interests or encumbrances at any time levied upon or placed on
the Collateral, including, but not limited to, any Permitted Liens, may pay for
insurance on the Collateral, and may pay for the maintenance and preservation of
the Collateral provided, however, the Administrative Agent shall be under no
duty or obligation to do so. The Borrower and each Subsidiary agrees to
immediately reimburse the Administrative Agent on demand for any such payments
made or any expenses incurred by the Administrative Agent together with interest
at the Default Rate specified in the Loan Agreement.
(o) That the Borrower's principal Place of Business is the address
specified in the preamble to this Security Agreement and it will promptly give
the Administrative Agent written notice of any change thereof, provided,
however, that said principal Place of Business may not be removed from the
County where the Borrower is now located without the prior written consent of
the Administrative Agent and the Required Lenders and the delivery to the
Administrative Agent of such additional documents as may be required by the
Administrative Agent and the Required Lenders to continue the perfection of the
Security Interests granted hereunder. The Borrower further represents and
warrants that all of its business records, including those pertaining to the
Collateral owned by it, shall be kept at the above stated address. The
Administrative Agent shall have the right at all times to review, examine and
make abstracts from said business records.
(p) That each Subsidiary's principal Place of Business is at the address
specified in Exhibit "A" attached to this Security Agreement and it will
promptly give the Administrative Agent written notice of any change thereof,
provided, however, that said principal place of business may not he removed from
the County where the Subsidiary is now located without thirty (30) days prior
written notice to the Administrative Agent and the Required Lenders and the
delivery to the Administrative Agent and the Required Lenders of such additional
documents as may be required by the Administrative Agent and the Required
Lenders to continue the perfection of the Security Interest granted hereunder.
Each Subsidiary further
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<PAGE>
represents and warrants that all of its business records, including those
pertaining to all the Collateral owned by it, shall be kept at the above stated
address. The Administrative Agent shall have the right at all times to review,
examine and make abstracts from said business records.
(q) That until the occurrence of an Event of Default, the Administrative
Agent shall have the right at all times upon reasonable notice and during
normal business hours to inspect and examine the Collateral and to make
schedules and listings thereof.
(r) That upon the occurrence of an Event of Default and thereafter until
such time as the Administrative Agent and the Required Lenders have consented in
writing to the cure thereof, the Administrative Agent shall have the right at
all times to inspect and examine the Collateral and to make schedules and
listings thereof.
(s) That the Borrower and the Subsidiaries will maintain the Collateral
in good condition and repair, ordinary wear and tear excepted, and shall
undertake and perform such other functions as may be necessary to keep and
maintain the Collateral in good condition and repair, ordinary wear and tear
excepted.
(t) That the Borrower and the Subsidiaries, as the case may be, shall at
all times pay and keep current all Permitted Debt secured by Permitted Liens and
shall not default thereunder.
All of the foregoing representations, warranties and covenants shall be
true and correct throughout the term of this Security Agreement and shall be
fulfilled and maintained by the Borrower and each Subsidiary throughout the term
hereof.
5. DEFAULT. The occurrence of one or more of the following events shall
constitute a default in this Security Agreement:
(a) The occurrence of an Event of Default by Borrower under the Loan
Agreement.
(b) The failure of the Borrower or any Subsidiary to keep, observe or
perform any term or condition of this Security Agreement required hereunder to
be kept, observed or performed by the Borrower or such Subsidiary.
(c) The making or furnishing by the Borrower or any Subsidiary to the
Administrative Agent of any representation, warranty or covenant in connection
with this Security Agreement which is false in any material respect.
(d) The occurrence of a default or Event of Default by Borrower or any
Subsidiary under any other Credit Document.
A default under this Security Agreement shall constitute a default under
the terms and conditions of all promissory notes then existing and executed by
the Borrower in favor of the
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<PAGE>
Administrative Agent and the Lenders and shall also be and constitute a
default under all promissory notes and other agreements then existing and which
evidence in any way any Liability to the Administrative Agent and the Lenders
including, but not limited to, any other loan documents or loan agreement
between the Borrower and the Administrative Agent and/or the Lenders.
6. RIGHTS UPON DEFAULT. Upon the occurrence and during the continuance of
any Event of Default, the Administrative Agent shall have and may exercise any
or all of the following lights (subject to the provisions of the UCC and other
applicable law):
(a) To declare the Liabilities, or any of them (notwithstanding any
provision thereof), immediately due and payable without demand or notice of any
kind and the same thereupon shall immediately become due and payable without
demand or notice, and from and after the date of default the amount due on the
Liabilities shall from and thereafter bear interest at the Default Rate.
(b) To exercise from time to time any and all rights and remedies of a
secured party under the UCC and any and all rights and remedies available to it
under any other applicable law.
(c) To request the Borrower and each Subsidiary to assemble at its
expense the Collateral and make it available to the Administrative Agent at a
reasonably convenient place designated by the Administrative Agent and, upon
making of said request, the Borrower and each Subsidiary shall promptly comply
with said request.
(d) To give notice to and make demand upon all Account Debtors to make
payments directly to the Administrative Agent on all Accounts.
(e) To seize and take possession of the Collateral and dispose of same
under the UCC and, in such case, if any notice is required under applicable law
the giving of five (5) days written notice to the Borrower or any Subsidiary, as
the case may be, at its address set forth herein shall constitute reasonable
notice to same. If either the Borrower or any Subsidiary wishes to change its
address at which said notice is to be given, the burden shall be upon the
Borrower or such Subsidiary to so notify the Administrative Agent in writing and
unless and until said notice is given, all notices sent to the Borrower or to
such Subsidiary at the address set forth herein shall be effective and valid
notice. If an Event of Default shall have occurred, the Borrower and each
Subsidiary expressly authorize the Administrative Agent to enter upon all
property owned by the Borrower or such Subsidiary for the purpose of taking into
custody and seizing any and all of the Collateral. In the event of repossession
of any or all of the Collateral, the Borrower and each Subsidiary authorizes the
Administrative Agent to take into his possession any personal property found in
or on the Collateral and to hold the same until claimed by the Borrower or such
Subsidiary and in the event such personal property is not claimed within a
reasonable time (not greater than five (5) days) by the Borrower or by such
Subsidiary, the Administrative Agent may dispose of such other personal property
in the same manner as the Collateral is disposed of and to apply the proceeds
resulting therefrom to the Liabilities.
-8-
<PAGE>
(f) To immediately offset against the Liabilities all other monies due
or to become due the borrower or any Subsidiary from the Administrative Agent or
any Lender, whether said monies are due or are to become due under this Security
Agreement, or any other relationship whatsoever between the Borrower and any
Subsidiary.
(g) To exercise such other remedies as are provided in any other Credit
Document or under applicable law.
All proceeds resulting from the disposition of any of the Collateral or
the exercise by the Administrative Agent or any Lender of any of its rights
under this Security Agreement shall be applied without any marshaling of assets
(i) first to the expenses of retaking and preparing the Collateral for sale
including expenses of sale, (ii) next to other costs and reasonable attorneys'
fees incurred by the Administrative Agent in exercising its rights under this
Security Agreement, (iii) next to the payment of interest and/or principal due
on the Liabilities and obligations other than the Hedging Agreements, as the
Administrative Agent may determine, (iv) next to the payment of interest,
principal or other amounts due under the Hedging Agreements, (v) next to
establish a cash collateral account to secure any obligation of the Borrower to
reimburse the Administrative Agent in the event any Letter of Credit is then
outstanding to any extent, which amount shall be equal to the undrawn amount of
the Letter of Credit and (vi) finally to any other moneys due the Administrative
Agent or any Lender from the Borrower. Should any deficiency result after
disposition of the Collateral, the Credit Parties shall remain liable therefor.
7. PERFECTION. In order to perfect the security interest in the Collateral
granted to the Administrative Agent by the Borrower and the Subsidiaries
hereunder, the Borrower and each Subsidiary agree to execute and deliver to the
Administrative Agent any and all documents which are, in the opinion of the
Administrative Agent or its counsel, necessary so as to perfect said security
interest including, but not limited to, execution of appropriate UCC-1 financing
statements to be filed with the Florida Secretary of State and with the
appropriate filing officer in such other jurisdictions where any of the
Collateral is or may be located.
The Borrower and each Subsidiary further authorize the Administrative
Agent, to the extent the Borrower or a Subsidiary has failed to do so
immediately after request by the Administrative Agent, to file, in jurisdictions
where this authorization will be given effect, financing statements signed only
by the Administrative Agent describing the Collateral in the same manner as it
is described herein, and, from time to time, at the request of the
Administrative Agent, the Borrower and each Subsidiary will execute one or more
financing statements and such other documents (and pay the cost of filing and
recording same in all public offices deemed reasonably necessary or desirable by
the Administrative Agent) and do such other acts and things, all as the
Administrative Agent and the Lenders may reasonably request to establish and
maintain a valid, enforceable and perfected security interest in the Collateral
(free of all other liens and claims whatsoever except for the Permitted Liens)
to secure payment of the Liabilities including, without limitation, the deposit
with the Administrative Agent of any certificate of title applicable to any of
the Collateral and notation thereon of the security interest hereunder along
with any necessary documents including notices of liens. At the request of the
Administrative
-9-
<PAGE>
Agent, this Security Agreement executed by the Borrower and each of the
Subsidiaries, or a photocopy thereof, shall be deemed to be a financing
statement authorized to be filed in such jurisdictions where such filing will be
given effect.
The Borrower shall pay all costs of filing any financing statement and all
other costs of perfecting the security interest granted hereunder.
8. OTHER DOCUMENTS. During the term of this Security Agreement, the
Borrower and each Subsidiary agrees to execute any and all other documents which
are, in the opinion of the Administrative Agent or its counsel, necessary to
carry out the terms and conditions of this Security Agreement including the
granting of a perfected, valid and enforceable security interest in the
Collateral to the Administrative Agent.
9. NOTICE. All notices under this Security Agreement shall be given and be
effective in the manner specified in the Loan Agreement.
10. POWER OF ATTORNEY. The Borrower and the Subsidiaries do hereby appoint
the Administrative Agent as their attorney-in-fact to execute any and all
documents which the Borrower or the Subsidiaries are required to execute under
the Security Agreement including, but not limited to, all financing statements
and other documents which the Borrower or the Subsidiaries are obligated to
execute and deliver under the provisions of paragraph 7 hereof, and the Borrower
and the Subsidiaries further appoint the Administrative Agent as their
attorney-in-fact to endorse in their names all checks, drafts and other
instruments representing or constituting payments made on the Collateral and
which are made or delivered to the Administrative Agent in accordance with this
Security Agreement. The power of attorney granted herein shall be irrevocable
until such time as the Liabilities have been paid in full and the Lenders have
no other obligations whatsoever to make any Loans or Advances under the Loan
Agreement and shall be deemed coupled with an interest.
11. TERM. This Security Agreement and the rights and privileges granted
hereunder to the Administrative Agent shall continue and remain in full force
and effect until (i) all Liabilities have been paid in full, (ii) the Borrower
has no further right to obtain any Advances or other disbursements from the
Administrative Agent or the Lenders, (iii) all Obligations have been paid, and
(iv) the Lenders have no further obligations to make any further Loans or
Advances under the Loan Agreement. At such time as all of the foregoing
conditions have been met, the Administrative Agent shall execute and deliver to
the Borrower a termination statement in regard to any financing statement that
relates to the Collateral and take such other actions as shall be reasonably
necessary to reflect the termination of the Administrative Agent's Liens. Until
all the conditions set forth above regarding the term of this Security Agreement
have been met, this Security Agreement shall continue to secure all Liabilities.
12. TIME. Time is of the essence of this Security Agreement.
13. WAIVER. No waiver by the Administrative Agent of any default shall
operate as o waiver of any other default or of the same default on a future
occasion. No delay or omission
-10-
<PAGE>
on the part of the Administrative Agent in exercising any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the
Administrative Agent of any right or remedy shall include any other or further
exercise thereof or the exercise of any other right or remedy. To the extent
permitted by law, the Borrower and the Subsidiaries further waive all notices
whatsoever that the Borrower and the Subsidiaries may be entitled to under any
contract or statute including presentiment, notice of dishonor, protest or
notice of protest.
14. MISCELLANEOUS. The provisions of this Security Agreement are cumulative
and are in addition to the provisions of the other Loan Documents and the
Administrative Agent and the Lenders shall have all the benefits, rights and
remedies afforded by such other Loan Documents. If more than one party shall
execute this Security Agreement, the terms "Borrower," "Subsidiary," and
"Subsidiaries" will mean all parties signing this Security Agreement and each of
them, and all such parties shall be jointly and severally obligated and liable
hereunder. The singular pronoun, when used herein, shall include masculine and
feminine. All rights of Administrative Agent hereunder shall inure to the
benefit of its successors and assigns and all duties or obligations of the
Administrative Agent shall bind its successors and assigns and all duties or
obligations of the Borrower and the Subsidiaries hereunder shall bind the heirs,
executors, administrators, successors and assigns of the Borrower and each
Subsidiary.
15. GOVERNING LAW. This Security Agreement has been delivered in the State
of Florida and shall be construed in accordance with and governed by the laws of
Florida.
16. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Security Agreement shall
be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Security
Agreement.
17. DOCUMENTARY STAMPS. The Borrower shall pay all documentary stamps,
intangible tax, and other taxes and penalties due on any notes evidencing any of
the Liabilities and the Borrower further agrees to indemnify and hold
Administrative Agent and the Lenders harmless from and against any and all such
documentary stamps, intangible taxes and penalties.
18. NO THIRD PARTY BENEFICIARIES. It is the intent and understanding of the
Borrower, the Subsidiaries, and the Administrative Agent that this Security
Agreement is solely between them and for their benefit and, accordingly, no
party other than the Borrower, the Subsidiaries, the Administrative Agent and
the Lenders shall have any rights or privileges under this Security Agreement
either as third party beneficiaries or otherwise.
19. COSTS AND ATTORNEYS FEES. In the event of any default under this
Security Agreement or the exercise by the Administrative Agent of any of its
rights hereunder, the Borrower shall promptly pay to the Administrative Agent
all such out-of-pocket costs and expenses, including reasonable attorneys fees
as shall be incurred by the Administrative Agent. All such costs and expenses,
including reasonable attorneys fees, shall further be deemed to be
-11-
<PAGE>
within the term "Liability" and secured by the Collateral. As used in this
Security Agreement, costs and attorneys fees shall mean costs and attorneys fees
incurred in any suit, including any appeal therefrom in any bankruptcy
proceeding. Thus, any said expenses incurred by the Administrative Agent in
asserting or protecting any of its rights under this Security Agreement or any
other Credit Document shall be within the term "Liability" and secured by the
Collateral.
20. CONSTRUCTION OF SECURITY AGREEMENT. In the event it becomes necessary
to interpret or construe the terms and conditions of this Security Agreement, no
preference or weight shall be given to who prepared or drafted this Security
Agreement as it is the understanding of the parties hereto that both parties had
a full right to negotiate and discuss the preparation and drafting of this
Security Agreement.
21. GOVERNING LAW; SUBMISSION TO JURISDICTION; FULL FAITH AND CREDIT;
WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER 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 FLORIDA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR
ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CIRCUIT COURT OF PALM BEACH
COUNTY, FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OBLIGOR HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS.
(c) TO THE EXTENT THAT ANY AGENT OR LENDER OBTAINS ANY JUDGMENT
AGAINST ANY OBLIGOR UNDER ANY CREDIT DOCUMENT, OBLIGORS DO HEREBY AGREE
THAT SUCH JUDGMENT SHALL BE ENTITLED TO "FULL FAITH AND CREDIT" WITH THE
SAME FORCE AND EFFECT AS IF SUCH JUDGMENT WAS RENDERED AGAINST THE OBLIGOR
BY A COURT OR OTHER TRIBUNAL LOCATED IN THE DOMICILE OF THE OBLIGOR, IF
DIFFERENT FROM THAT IN WHICH SUCH JUDGMENT IS RENDERED. OBLIGORS HEREBY
AGREE TO THE VALIDITY AND ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT
SEEK TO CHALLENGE OR "GO BEHIND" THE FACE OF SUCH JUDGMENT.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OBLIGOR HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
IN CONNECTION WITH ANY CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION
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<PAGE>
HEREUNDER OR THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDERS TO EXTEND CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE
BORROWER, FURTHER, OBLIGORS HEREBY CERTIFY THAT NO REPRESENTATIVE OF THE
AGENTS OR LENDERS NOR ANY COUNSEL FOR THE AGENTS OR LENDERS HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENTS OR LENDERS WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF
JURY TRIAL PROVISION. NO REPRESENTATIVE OF THE AGENTS OR LENDERS NOR
COUNSEL FOR THE AGENTS OR LENDERS HAS THE AUTHORITY TO WAIVE, CONDITION OR
MODIFY THIS PROVISION.
(e) OBLIGORS FURTHER IRREVOCABLY CONSENT 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 EACH OBLIGOR AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. OBLIGORS HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION THEY MAY HAVE 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 ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS IN RESPECT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT.
(f) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER,
ANY HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST AN OBLIGOR IN ANY OTHER JURISDICTION.
22. ADDITIONAL SUBSIDIARIES. Upon execution and delivery by any Subsidiary
of the Borrower of an instrument in the form of Exhibit G to the Loan Agreement,
such Subsidiary of the Borrower shall become a Subsidiary hereunder with the
same force and effect as if originally named a Subsidiary herein (each an
"Additional Subsidiary"). The execution and delivery of any such instrument
shall not require the consent of the Borrower or any Subsidiary hereunder. The
rights and obligations of each Subsidiary hereunder shall remain in full force
and effect notwithstanding the addition of any Additional Subsidiary as a party
to this Security Agreement.
23. COMPLETE AGREEMENT. This Security Agreement constitutes the complete
agreement between the parties in regard to the matters set forth herein and this
Security Agreement may not be altered, amended or otherwise modified except by a
writing signed by the person to be charged by said alteration, amendment or
modification. This requirement that this Security Agreement may not be altered,
amended or modified except by a writing, may not itself be waived except by a
writing.
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<PAGE>
IN WITNESS WHEREOF, the Borrower and each Subsidiary has executed this
Security Agreement as of the date and year first above written.
BORROWER:
ATTEST ABLE TELCOM HOLDING CORP., a Florida
corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
SUBSIDIARIES:
ATTEST TELECOMMUNICATION SERVICES
GROUP, INC., a Florida corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
ATTEST ABLE INTEGRATED SYSTEMS, INC., a
Florida corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
ATTEST ABLE COMMUNICATION SERVICES, INC.,
a Florida corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
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<PAGE>
ATTEST H.C. CONNELL, INC., a Florida
corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
ATTEST DIAL COMMUNICATIONS, INC., a Florida
corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
ATTEST TRAFFIC MANAGEMENT GROUP, INC.,
a Florida corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
ATTEST TRANSPORTATION SAFETY
CONTRACTORS, INC., a Florida corporation
________________________________ By: ________________________________ By:
Print Name: ____________________________
Title: _________________________________
ATTEST TRANSPORTATION SAFETY
CONTRACTORS OF VIRGINIA, INC., a
Virginia corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
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<PAGE>
ATTEST GEORGIA ELECTRIC COMPANY, a Georgia
corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
ATTEST COMMUNICATIONS DEVELOPMENT
GROUP, INC., a Florida corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
ATTEST ABLE WIRELESS, INC., a Florida
corporation
________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
LENDERS:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and
as Administrative Agent
By: ____________________________________
________________________, Vice President
BANK OF AMERICA, FSB, individually and
as Syndication Agent
By: ____________________________________
________________________, Vice President
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<PAGE>
EXHIBIT A
PLACES OF BUSINESS
ADDRESS LEASED/OWNED
<PAGE>
EXHIBIT G
FORM OF
SUPPLEMENT TO SECURITY AGREEMENT
SUPPLEMENT NO.___ dated as of ____________________, 199__, to the SECURITY
AGREEMENT dated as of April 6, 1998 (the "Security Agreement") by and among
ABLE TELCOM HOLDING CORP., a Florida corporation ("the Borrower"), the parties
listed on Schedule A attached hereto (together with any successors, referred to
herein individually as a "Guarantor" and collectively as "Guarantors") and
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION, individually and as
Administrative Agent (the "Administrative Agent"), BANK OF AMERICA, FSB,
individually and as Syndication Agent for the Lenders parties to the Senior
Secured Revolving Credit Agreement dated as of April 6, 1998, among the
Borrower, the Lenders and the Administrative Agent (as amended, modified or
supplemented from time to time, the "Loan Agreement"; capitalized terms used
herein but not otherwise defined herein have the meanings assigned to such terms
in the Loan Agreement or the Security Agreement, as the case may be).
Guarantors have entered into the Security Agreement in order to induce the
Lenders to make the Loans. Pursuant to Section 7.10 of the Loan Agreement, each
Subsidiary that was not in existence or incorporated on the date thereof is
required to enter into the Security Agreement as a Subsidiary upon becoming a
Subsidiary of the Borrower. Section 22 of the Security Agreement provides that
additional Subsidiaries of the Borrower may become Subsidiaries under the
Security Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned ("New Subsidiary") is a Subsidiary of the
Borrower and is executing this Supplement in accordance with the requirements of
the Loan Agreement to become a Subsidiary under the Security Agreement in order
to induce the Lenders to make additional Loans and as consideration for the
Loans previously made.
Accordingly, Administrative Agent and New Subsidiary agree as follows:
1. JOINDER TO CONTRIBUTION AGREEMENT. In accordance with Section 22 of the
Security Agreement, New Subsidiary by its signature below becomes a Subsidiary
under the Security Agreement with the same force and effect as if originally
named therein as a Subsidiary, and New Subsidiary hereby agrees to all the
terms and provisions of the Security Agreement applicable to it as a Subsidiary
thereunder. Each reference to a "Subsidiary" in the Security Agreement shall be
deemed to include New Subsidiary. The Security Agreement is hereby incorporated
herein by reference.
2. ENFORCEABILITY. This Supplement has been duly authorized, executed and
delivered by New Subsidiary and constitutes a legal, valid and binding
obligation of New Subsidiary, enforceable against it in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
<PAGE>
3. COUNTERPARTS. This Supplement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such Counterparts shall
constitute but one and the same instrument.
4. EFFECTIVE DATE. This Supplement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto, and written or
telephonic notification of such execution and authorization of delivery thereof
has been received by New Subsidiary and Administrative Agent.
5. RATIFICATION OF SECURITY AGREEMENT. As expressly supplemented hereby,
the Security Agreement shall remain in full force and effect.
6. CHOICE OF LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
7. SEVERABILITY. In case any provision in or obligation under this
Supplement shall be invalid, illegal or unenforceable 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.
8. NOTICES. All communications and notices hereunder shall be given and
shall be effective in the manner specified in the Loan Agreement.
9. FEES AND EXPENSES. New Subsidiary agrees to reimburse Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, disbursements and other charges of
counsel for Administrative Agent, whether suit be brought or not, and all
reasonable attorneys'' fees, costs and expenses if an appeal is taken.
IN WITNESS WHEREOF, New Subsidiary and Administrative Agent have duly
executed this Supplement to Security Agreement as of the day and year first
above written.
NEW SUBSIDIARY:
________________________________________
By: ____________________________________
Name:
Title:
Address: _______________________________
________________________________________
________________________________________
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<PAGE>
AGENT:
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE
AGENT
NEW SUBSIDIARY:
________________________________________
By: ____________________________________
Name:
Title:
-3-
<PAGE>
SCHEDULE A
-4-
<PAGE>
EXHIBIT "H"
FORM OF REQUEST FOR
EXTENSION OF TERMINATION DATE
SunTrust Bank, South Florida, National Association
222 Lakeview Avenue, Suite 305
West Palm Beach, Florida 33401
ATTN: ________________________
Ladies/Gentlemen:
We refer to the Senior Secured Revolving Credit Agreement dated as of
____________________, 1998, among ABLE TELCOM HOLDING CORP., a Florida
corporation, as Borrower, SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent, and BANK OF AMERICA, FSB, individually
and as Syndication Agent (the "Agreement"). Terms defined in the Agreement are
used herein as therein defined.
In accordance with the definition of "Termination Date" and the terms of
Section 2.4 of the Agreement, the Borrower hereby requests your consent to
extend the Termination Date for ninety (90) days from _____________, 200__, to
________________, 200__. If such an extension is acceptable to you, please so
indicate by signing in the space below and return this Request to the Borrower.
The above described extension of the Termination Date shall become
effective when the Borrower shall have received a counterpart hereof signed by
the Administrative Agent.
Very truly yours,
ABLE TELCOM HOLDING CORP.
By: ____________________________________
Name: __________________________________
Title: _________________________________
The undersigned, with the consent of all the Lenders, hereby consents to the
extension of the Termination Date requested above.
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL
ASSOCIATION, AS ADMINISTRATIVE AGENT
By: ____________________________________
Name: __________________________________
Title: _________________________________
<PAGE>
EXHIBIT I
FORM OF
CLOSING CERTIFICATE
Pursuant to Section 5.1 of the Senior Secured Revolving Credit Agreement
dated as of ____________, 1998 (the "Loan Agreement") among ABLE TELCOM HOLDING
CORP., a Florida corporation (the "Borrower"), SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION, as Administrative Agent and BANK OF AMERICA, FSB, as
Syndication Agent, and the other Lenders at any time parties thereto, the
undersigned in their respective capacities as officers, directors, or authorized
signatories of the Borrower and each Subsidiary hereby certify to the Lenders
and the Administrative Agent as follows (capitalized terms used herein having
the same meanings as assigned to such terms in the Loan Agreement):
1. All representations and warranties contained in the Loan Agreement
are true and correct in all material respects on and as of the date
hereof.
2. After giving effect to the Loans to be made to the Borrower
pursuant to the Loan Agreement on the date hereof, no Default or
Event of Default has occurred and is continuing and no condition,
event, act or omission which, with the giving of notice or the
lapse of time or both, would constitute a Default or Event of
Default which under the Loan Agreement or any other Credit
Documents has occurred and is continuing or exists as of the date
hereof.
3. As of the date hereof, the Borrower and each Guarantor has complied
with all its duties and obligations and all of the conditions set
forth in the Loan Agreement and each of the other Credit Documents
executed by each of them) in connection with the Loan Agreement).
4. Except as set forth in Borrower's Quarterly Report on Form 10-Q for
the fiscal quarter ended January 31, 1998, as filed with the
Securities and Exchange Commission, a true and complete copy of
which has been provided to the Administrative Agent, since the date
of the audited financial statements of the Consolidated Companies
described in Section 6.3 of the Loan Agreement, there has been no
change which has had or could reasonably be expected to have a
Material Adverse Effect.
5. Except as may be described on Schedule 6.5 of the Loan Agreement,
no action or proceeding has been instituted or is pending before
any court or other governmental authority, or, to the knowledge of
the Borrower, threatened (i) which reasonably could be expected to
have a Material Adverse Effect, or (ii) seeking to prohibit or
restrict one or more of the Consolidated Companies' ownership or
operation of any portion of its businesses or assets, where such
portion or portions of such businesses or assets, as the case may
be, constitute a
<PAGE>
material portion of the total businesses or assets of the
Consolidated Companies, taken as a whole.
6. The proceeds of the Loans to be made on the date hereof are being
used solely for the purposes provided in the Loan Agreement, and
such Loans and use of proceeds thereof will 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 the Borrower.
7. The conditions precedent set forth in Sections 5.1 and 5.2 of the
Loan Agreement have been or will be satisfied (or have been waived
pursuant to the terms of the Loan Agreement) prior to or
concurrently with the making of the Loans under the Loan Agreement
on the date hereof.
8. The execution, delivery and performance by the Credit Parties of
the Credit Documents will not violate any Requirement of Law or
cause a breach or default under any of their respective Contractual
Obligations.
9. Each of the Credit Parties has the corporate power and authority to
make, deliver and perform the Credit Documents to which it is a
party and has taken all necessary corporate action to authorize the
execution, delivery and performance of such Credit Documents. No
consents or authorization of, or filing with, any Person
(including, without limitation, any governmental authority), is
required in connection with the execution, delivery or performance
by any Credit Party, or the validity or enforceability against any
Credit Party, of the Credit Documents, other than such consents,
authorizations or filings as have been made or obtained.
This Certificate executed and delivered on behalf of the Borrower and the
Guarantors this _____ day of April, 1998.
ATTEST ABLE TELCOM HOLDING CORP.,
a Florida corporation
_________________________________ By: _______________________________
Print Name: _____________________ Print Name: _______________________
Title: Secretary Title: ____________________________
<PAGE>
EXHIBIT J
FORM OF OPINION OF
BORROWER'S COUNSEL
________________, 1998
To: Each of the Lenders parties to the Senior Secured Revolving Credit
Agreement referenced below, and each assignee thereof that becomes a
"Lender" as provided therein and SunTrust Bank, South Florida, National
Association, as Administrative Agent for the Lenders
Re: Senior Secured Revolving Credit Agreement dated as of
_______________, 1998, by and among Able Telcom Holding Corp.,
SunTrust Bank, South Florida, National Association, individually
and as Administrative Agent, and Bank of America, FSB,
individually and as Syndication Agent (the "Agreement")
Ladies and Gentlemen:
This opinion is furnished pursuant to Section 5.1 of the Agreement.
Capitalized terms used herein which are defined in the Agreement shall have the
respective meanings set forth or referred to in the Agreement unless otherwise
defined herein.
We have acted as counsel for Able Telcom Holding Corp., a Florida
corporation ("Borrower"), and each of its Subsidiaries shown on EXHIBIT "A"
attached hereto (individually, a "Guarantor" and collectively the "Guarantors"
and collectively, together with Borrower, the "Credit Parties"), in connection
with the preparation, negotiation, execution and delivery of the following
documents (collectively, the "Credit Documents"):
1. the Agreement
2. the Revolving Credit Notes
3. the Security Agreement
4. the Financing Statements
5. the Guaranty Agreement
6. the Contribution Agreement
7. the Assignments
8. the Collateral Assignments
9. the Agreements Not to Encumber; and
10. the form of the Assignment and Acceptance Agreement.
In connection with this opinion, we have examined and relied on the
executed originals of the Credit Documents and the following certificates,
instruments and documents relating to the Credit Parties:
<PAGE>
1. The representations and warranties given by the Credit Parties in
the Credit Documents and the certificates and other documents delivered by
the officers of the Credit Parties thereunder;
2. Articles of Incorporation or Charter of each of the Credit Parties,
in each case, certified by the Secretary of State of the state of each such
entity's incorporation;
3. Certificates of Good Standing and Qualification with respect to
each of the Credit Parties issued, in each case, by the Secretary of State
of the state of incorporation and, with respect to Certificates of
Qualification, all additional states in which any Credit Party is qualified
to do business;
4. Copies of the By-Laws of each of the Credit Parties.
5. Copies of corporate resolutions authorizing the Credit Documents,
in each case, certified by the Secretary or Assistant Secretary of the
respective Credit Parties;
6. The Closing Certificate of the Credit Parties.
We have also examined the Leases.
We have also made such investigations of law and fact as we have deemed
necessary as the basis for the opinions expressed herein.
We have assumed: (i) the genuineness of all signatures (other than those on
behalf of the Credit Parties) on, and authenticity of, all documents submitted
to us as originals and the conformity to original documents of all documents
submitted to us as copies, and (ii) the due authorization, execution and
delivery of all Credit Documents by all parties thereto other than the Credit
Parties.
Based on the foregoing, and subject to the qualifications hereinafter set
forth, we are of the opinion that:
1. Each of the Credit Parties (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, (b) has the corporate power and authority to own and operate
its property and to conduct its business as now conducted, and (c) is duly
qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where the ownership of its property or the conduct of its
business requires such
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<PAGE>
qualification and where the failure so to qualify would have a Material
Adverse Effect.
2. Each of the Credit Parties has the corporate power and authority to
make, deliver and perform the Credit Documents to which it is a party and
has taken all necessary corporate action to authorize the execution,
delivery and performance of such Credit Documents.
3. No consent, approval or authorization of, or registration,
declaration or filing with, any United States, federal, state, local or
other governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of the Credit Documents
or the use of the proceeds of the Revolving Loans made under the Agreement.
4. Neither the execution, delivery and performance by each of the
Credit Parties of the Credit Documents to which it is it party nor the
consummation of the transactions contemplated therein do not and will not
4. violate 4. any existing Requirement of Law applicable to such Credit
Party 4. any provision of its certificate or articles of incorporation or
its bylaws or, 4. to the best of our knowledge, any provision of any
existing Contractual Obligation of such Credit Party, and 4. do not and
will not result in the creation or imposition of any Lien on any of its
properties assets or revenues.
5. Each of the Credit Parties has duly authorized, executed and
delivered each Credit Document to which it is a party. Each of the Credit
Documents is governed by the laws of the State of Florida, constitutes the
legal, valid and binding obligation of each of the Credit Party that is a
party thereto, and is enforceable against each such Credit Party in
accordance with its terms except as the enforceability of the foregoing may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws or equitable principles affecting enforcement of creditors'
rights generally or by laws or judicial decisions limiting such
enforceability.
6. To the best of our knowledge, there is no litigation, investigation
or proceeding of or before any court, tribunal, arbitrator or governmental
authority pending or threatened by or against any of the Credit Parties or
against any of their respective properties or revenues (a) with respect to
the Credit Documents or any of the transactions contemplated thereby or (b)
which, if adversely determined, would be expected to have a Material
Adverse Effect.
7. None of the Credit Parties is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company" or of a "subsidiary
company"
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<PAGE>
of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
8. The making of any Revolving Loans under the Agreement and the
application of the proceeds thereof as provided in the Agreement do not
violate Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System.
9. Except as noted on Exhibit "A" attached hereto, the Borrower or a
Wholly Owned Subsidiary of the Borrower is the owner and holder of one
hundred percent (100%) of the issued and outstanding common stock of each
of the Guarantors.
10. The Credit Parties have executed the Security Documents granting
to the Administrative Agent and the Lenders a first priority security
interest in the Collateral described therein and, upon filing of the
Financing Statements and recording of the Agreements Not to Encumber in the
appropriate jurisdictions, the Agent's and the Lenders' first priority
security interest in the Collateral will be properly perfected and no other
filings are required.
11. Pursuant to the Guaranty Agreement, the Guarantors have
unconditionally guaranteed payment and performance of all the Obligations.
The Guaranty Agreement is enforceable against the Guarantors in accordance
with its terms.
12. The Leases have been duly executed and delivered, are in full
force and effect, constitute legal, valid and binding obligations of the
parties executing same under the laws of Florida, enforceable in
accordance with their respective terms, and convey to the Borrower a valid
leasehold estate in the real property described therein.
This opinion has been delivered solely for the benefit of the Lenders, the
Administrative. Agent, the Syndication Agent, their respective counsel and
successors and assigns, and may not be relied upon by any other person or entity
or for any other purpose without the express written permission of the
undersigned.
Very truly yours,
HOLLAND & KNIGHT, LLP
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<PAGE>
EXHIBIT K
FORM OF
JOINDER BY SUBSIDIARY
The undersigned, being and constituting a Subsidiary of ABLE TELCOM HOLDING
CORP., a Florida corporation (the "Borrower"), does hereby join in and agree to
be bound by all provisions applicable to a Restricted Subsidiary in that certain
Senior Secured Revolving Credit Agreement (the "Loan Agreement"), dated as of
April 6, 1998, by and between SunTrust Bank, South Florida, National
Association, individually and as Administrative Agent (the "Administrative
Agent"), and the other Lenders from time to time parties thereto and the
Borrower with joinder by all existing Subsidiaries of the Borrower.
The undersigned Subsidiary of the Borrower hereby agrees to execute and
deliver to the Administrative Agent a Supplement to Security Agreement,
appropriate financing statements to perfect the security interests granted in
the Security Agreement, a Supplement to Subsidiary Guaranty Agreement and a
Supplement to Contribution Agreement, the form and substance of which shall be
satisfactory to the Administrative Agent and the Required Lenders (as defined in
the Loan Agreement).
Dated this _____ day of _________________, 1998.
ATTEST: SUBSIDIARY
__________________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
<PAGE>
EXHIBIT L
FORM OF
SUPPLEMENT TO
SUBSIDIARY GUARANTY AGREEMENT
THIS SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT (this "Supplement"), dated
as of __________________, 199__, made by _______________________ corporation
(whether one or more, collectively, the "Additional Guarantor"), in favor of
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION, a national banking
association, individually and in its capacity as administrative agent for
Lenders at any time parties to the Loan Agreement (as hereinafter defined) (the
"Administrative Agent") and each assignee thereof becoming a "Lender" as
provided therein (the "Lenders"; the Lenders and the Administrative Agent being
collectively referred to herein as the "Guaranteed Parties").
W I T N E S S E T H:
WHEREAS, ABLE TELCOM HOLDING CORP., a Florida corporation (the "Borrower"),
the Lenders and the Administrative Agent are parties to a Senior Secured
Revolving Credit Agreement, dated as of April 6, 1998, 1998 (as the same may
hereafter be amended, restated, supplemented or otherwise modified from time to
time, the "Loan Agreement") pursuant to which the Lenders have made commitments
to make loans to the Borrower;
WHEREAS, certain Subsidiaries (the "Subsidiary Guarantors") of the
Borrower have executed and delivered a Subsidiary Guaranty Agreement dated as of
April 6, 1998 (the "Subsidiary Guaranty") pursuant to which the Subsidiary
Guarantors have agreed to guarantee all of the obligations of the Borrower under
the Loan Agreement and the other Credit Documents (as defined in the Loan
Agreement);
WHEREAS, the Borrower, the Subsidiary Guarantors and the Additional
Guarantor share an identity of interests as members of a consolidated group of
companies engaged in substantially similar businesses; the Borrower provides
certain centralized financial, accounting and management services to the
Additional Guarantor; the making of the loans will facilitate expansion and
enhance the overall financial strength and stability of the Borrower's corporate
group, including the Additional Guarantor; and by virtue of intercompany
advances and loans, the financial accommodations to the Borrower under the Loan
Agreement shall inure to the direct and material benefit of the Additional
Guarantor; and
WHEREAS, it is a condition subsequent to the Lenders' obligation to make
Loans to the Borrower under the Loan Agreement that the Additional Guarantor
execute and
<PAGE>
deliver to the Administrative Agent this Supplement, and the Additional
Guarantor desires to execute and deliver this Supplement to satisfy such
condition subsequent;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make the Loans to the Borrower under the Loan Agreement, the
Additional Guarantor hereby agrees as follows:
1. DEFINED TERMS. Capitalized terms not otherwise defined herein which are
used in the Subsidiary Guaranty are used herein with the meanings given to such
terms in the Subsidiary Guaranty and any capitalized terms not otherwise defined
herein or in the Subsidiary Guaranty which are used in the Loan Agreement are
used herein with the meanings given to such terms in the Loan Agreement.
2. ADDITIONAL GUARANTOR. The Additional Guarantor agrees that it hereby
becomes a Guarantor for all purposes of the Subsidiary Guaranty and shall be
fully liable thereunder to the Administrative Agent and the other Guaranteed
Parties to the same extent and with the same effect as though the Additional
Guarantor had been one of the Guarantors originally executing and delivering the
Subsidiary Guaranty. Without limiting the foregoing, the Additional Guarantor
hereby jointly and severally (with respect to the guaranties made by the
Subsidiary Guarantors under the Subsidiary Guaranty), irrevocably and
unconditionally, guarantees the punctual and full payment when due, whether at
stated maturity by acceleration or otherwise, of all Loans and all other
Obligations owing by the Borrower to the Lenders and the Agents, or any of them,
jointly or severally, under the Loan Agreement, the Notes and the other Credit
Documents, including all renewals, extensions, modifications and refinancings
thereof, now or hereafter owing, whether for principal, interest, fees, expenses
or otherwise, and any and all reasonable out-of-pocket expenses (including
reasonable attorneys' fees actually incurred and reasonable out-of-pocket
expenses whether suit be brought or not, including reasonable attorneys' fees,
costs and expenses if an appeal is taken) incurred by the Agents or any other
Guaranteed Party in enforcing any rights under the Subsidiary Guaranty (as
supplemented hereby), subject, however, to the limitations expressly provided in
the Subsidiary Guaranty in Section 15 thereof All references in the Subsidiary
Guaranty to "Guarantors" or any "Guarantor", shall be deemed to include and to
refer to the Additional Guarantor.
3. GOVERNING LAW; SUBMISSION TO JURISDICTION; FULL FAITH AND CREDIT; WAIVER
OF JURY TRIAL.
(a) THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF FLORIDA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT, THE
SUBSIDIARY GUARANTY OR OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE CIRCUIT
COURT OF PALM BEACH COUNTY OF TEE STATE OF FLORIDA OR IN THE DISTRICT COURT OF
THE
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<PAGE>
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF FLORIDA, AND, BY EXECUTION
AND DELIVERY OF THIS SUPPLEMENT, THE ADDITIONAL GUARANTOR HEREBY CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID
COURTS. THE ADDITIONAL GUARANTOR 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 ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN
RESPECT OF THIS SUPPLEMENT, THE SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED
THERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF SUCH AGENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE ADDITIONAL GUARANTOR IN ANY OTHER JURISDICTION.
(c) TO THE EXTENT THAT ANY GUARANTEED PARTY OBTAINS ANY JUDGMENT AGAINST
THE ADDITIONAL GUARANT0R UNDER THIS SUPPLEMENT AND THE SUBSIDIARY GUARANTY, THE
ADDITIONAL GUARANTOR DOES HEREBY AGREE THAT SUCH JUDGMENT SHALL BE ENTITLED TO
"FULL FAITH AND CREDIT" WITH THE SAME FORCE AND EFFECT AS IF SUCH JUDGMENT WAS
RENDERED AGAINST SUCH ADDITIONAL GUARANTOR BY A COURT OR OTHER TRIBUNAL LOCATED
IN THE DOMICILE OF SUCH ADDITIONAL GUARANTOR, IF DIFFERENT FROM THAT IN WHICH
SUCH JUDGMENT IS RENDERED. THE ADDITIONAL GUARANTOR HEREBY AGREES TO THE
VALIDITY AND ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT SEEK TO
CHALLENGE OR "GO BEHIND" THE FACE OF SUCH JUDGMENT.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ADDITIONAL GUARANTOR
HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS SUPPLEMENT, THE SUBSIDIARY GUARANTY OR ANY OTHER CREDIT
DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE GUARANTEED PARTIES TO EXTEND CREDIT
TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE, BORROWER. FURTHER,
GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE GUARANTEED
PARTIES NOR ANY COUNSEL FOR THE GUARANTEED PARTIES HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE GUARANTEED PARTIES WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF JURY TRIAL PROVISION. NO
REPRESENTATIVE OR AGENT OF THE GUARANTEED PARTIES NOR COUNSEL FOR THE GUARANTEED
PARTIES HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.
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<PAGE>
IN WITNESS WHEREOF, the Additional Guarantor has caused this Supplement to
be duly executed and delivered by its duly authorized officers as of the date
first above written.
ADDRESS FOR NOTICES: ADDITIONAL GUARANTOR:
_______________________________ ________________________________________
_______________________________
_______________________________
By: ____________________________________
Print Name: ____________________________
Title: _________________________________
Attest: ___________________________
Name: _____________________________
Title: ____________________________
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<PAGE>
EXHIBIT M
FORM OF
SUPPLEMENT TO CONTRIBUTION AGREEMENT
SUPPLEMENT NO. __ dated as of _________________________, 1998, to the
CONTRIBUTION AGREEMENT dated as of _________________________, 1998 (the
"Contribution Agreement:) by and among ABLE TELCOM HOLDING CORP., a Florida
corporation ("the Borrower"), the parties listed on Schedule A attached hereto
(together with any successors, referred to herein individually as a "Guarantor"
and collectively as "Guarantors") and SUNTRUST BANK, SOUTH FLORIDA, NATIONAL
ASSOCIATION, individually and as Administrative Agent (the "Administrative
Agent") for the Lenders parties to the Senior Secured Revolving Credit Loan
Agreement dated as of ________________, 1998, among the Borrower, the Lenders
and the Administrative Agent (as amended, modifier or supplemented from time to
time, the "Loan Agreement"; capitalized terms used herein but not otherwise
defined herein have the meanings assigned to such terms in the Loan Agreement or
the Contribution Agreement, as the case may be).
Guarantors have entered into the Contribution Agreement in order to induce
the Lenders to make the Loans. Pursuant to Section 7.10 of the Loan Agreement,
each Subsidiary. that was not in existence or incorporated on the date thereof
is required to enter into the Contribution Agreement as a Guarantor upon
becoming a Subsidiary of the Borrower. Section 14 of the Contribution Agreement
provides that additional Subsidiaries of the Borrower may become Guarantors
under the Contribution Agreement by execution and delivery of an instrument in
the form of this Supplement. The undersigned ("New Guarantor") is a Subsidiary
of the Borrower and is executing this Supplement in accordance with the
requirements of the Loan Agreement to become a Guarantor under the Contribution
Agreement in order to induce the Lenders to make additional Loans and as
consideration for the Loans previously made.
Accordingly, Administrative Agent and New Guarantor agree as follows:
SECTION 1. JOINDER TO CONTRIBUTION AGREEMENT. In accordance with Section 14
of the Contribution Agreement, New Guarantor by its signature below becomes a
Guarantor under the Contribution Agreement with the same force and effect as if
originally named therein as a Guarantor, and New Guarantor hereby agrees to all
the terms and provisions of the Contribution Agreement applicable to it as a
Guarantor thereunder. Each reference to a "Guarantor" in the Contribution
Agreement shall be deemed to include New Guarantor. The Contribution Agreement
is hereby incorporated herein by reference.
SECTION 2. ENFORCEABILITY. This Supplement has been duly authorized,
executed and delivered by New Guarantor and constitutes a legal, valid and
binding obligation of New Guarantor, enforceable against it in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors
rights generally and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
<PAGE>
SECTION 3. COUNTERPARTS. This Supplement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
shall constitute but one and the same instrument.
SECTION 4. EFFECTIVE DATE. This Supplement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto, and written or
telephonic notification of such execution and authorization of delivery thereof
has been received by New Guarantor and Administrative Agent.
SECTION 5. RATIFICATION OF CONTRIBUTION AGREEMENT. As expressly
supplemented hereby, the Contribution Agreement shall remain in full force and
effect.
SECTION 6. CHOICE OF LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 7. SEVERABILITY. In case any provision in or obligation under this
Supplement shall be invalid, illegal or unenforceable 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 8. NOTICES. All communications and notices hereunder shall be in
writing and given as provided in Section 16 of the Contribution Agreement. All
communications and notices hereunder to New Guarantor shall be given to it at
the address set forth under its signature.
SECTION 9. FEES AND EXPENSES. New Guarantor agrees to reimburse
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, disbursements and other
charges of counsel for Administrative Agent, whether suit be brought or not,
and all reasonable attorneys' fees, costs and expenses if an appeal is taken.
IN WITNESS WHEREOF, New Guarantor and Administrative Agent have duly
executed this Supplement to Contribution Agreement as of the day and year first
above written.
NEW GUARANTOR:
By: ____________________________________
Print Name: ____________________________
Title: _________________________________
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<PAGE>
Address: _______________________________
________________________________________
________________________________________
AGENT:
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION, AS ADMINISTRATIVE
AGENT
By: ____________________________________
Print Name: ____________________________
Title: _________________________________
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<PAGE>
SCHEDULE A
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<PAGE>
EXHIBIT "N"
FORM OF
COLLATERAL ASSIGNMENT OF LEASES
This Collateral Assignment of Leases made this ______ day of
_______________________, 1998, by the corporations listed on Schedule I attached
hereto (the "Lessees"), in favor of SUNTRUST BANK, SOUTH FLORIDA, NA as
Administrative Agent (the "Agent") for the Lenders under that certain Senior
Secured Revolving Credit Agreement dated 1998 (the "Credit Agreement"),
witnesseth that:
RECITALS
By those certain leases listed on Schedule 2 attached hereto (the "Leases")
Lessees leased the premises described on Schedule 2.
Pursuant to the Credit Agreement the Lenders have agreed to make the loans
to Able Telcom Holding Corp. ("Borrower") and one of the conditions of the
Credit Agreement requires that Lessees collaterally assign their rights, title
and interest in the Leases on the terms and conditions hereafter set forth; and
NOW, THEREFORE, for and in consideration of the making of the Loans,
Lessees do hereby assign, transfer and set over unto the Agent, with the right
to reassign, all of its rights, title and interest in and to the Leases upon the
following terms, covenants, limitations and conditions:
1. The foregoing recitals are hereby incorporated into and comprise a part
of this Agreement. Capitalized terms used herein which are defined in the Credit
Agreement shall have the meanings provided therein when used herein.
2. As between Agent and Lessees, Lessees shall retain possession of the
Premises in accordance with the terms and conditions of the Lease as long as No
Event of Default occurs.
3. If an Event of Default shall occur, then Agent shall have the option of
taking over the Premises, provided, however, that in the event Agent elects to
exercise said option of taking over the Premises, written notice of its election
so to do shall be mailed promptly to the lessors under the Lease (the
"Lessors"). Agent shall not have the right to possession of the Premises until
such notice is received by the Lessors. Upon the receipt of notice of exercise
of such option, the Agent shall be deemed to be substituted as lessee in said
Lease in the place and instead of Lessees, and shall be deemed to have assumed
expressly all of the terms, covenants, and obligations of the Lease thereafter
otherwise applicable to Lessees, and shall likewise be entitled to enjoy all of
the rights and privileges granted to Lessees under the terms and conditions of
the Lease. The Agent shall also have the right to reassign all of the Lessees'
rights and obligations under the Lease. Agent shall have the right to exercise
such right as to one or some portion of the Leases but not the others or all of
the Leases in Agent's sole discretion.
<PAGE>
4. It is understood and agreed that as long as Agent has not exercised the
option under the foregoing provisions hereof as to the Premises, it shall not be
liable for rent or any obligation of Lessees under or in connection with the
Leases, and Lessees shall remain liable for such rent and obligations.
5. The Lessees hereby agree to indemnify and hold the Agent and the Lenders
harmless against and from any and all liability, loss, damage, and expense,
including reasonable attorneys' fees, which it may or shall incur under any of
said Leases, or by reason of this Assignment, or by reason of any action taken
by the Agent or any Lender hereunder, and against and from any and all claims
and demands whatsoever which may be asserted against the Agent or any Lender by
reason of any alleged obligation or undertaking on its part to perform or
discharge any of the terms, covenants and conditions contained in any of the
Leases. Should the Agent or any Lender incur any such liability, loss, damage or
expense, the amount thereof, together with interest thereon at the Default Rate,
shall be payable by the Lessees to the Agent or any Lender immediately upon
demand. Nothing contained herein shall obligate or be construed to obligate the
Agent or any Lender to perform any of the terms, covenants or conditions
contained in any Lease or otherwise to impose any obligation upon the Agent or
any Lender with respect to any of said Leases. Prior to actual entry into and
taking possession of the Property by the Agent, this Assignment shall not
operate to place upon the Agent or any Lender any responsibility for the
operation, control, care, management or repair of the Premises, and the
execution of this Assignment by the Lessees shall constitute conclusive evidence
that all responsibility for the operation, control, care, management and repair
of the Premises is and shall be that of the Lessees, prior to such actual entry
and taking of possession.
6. The Lessees represent and warrant that the Lessees shall duly and
punctually perform all and singular the terms, conditions and covenants of the
Leases on Lessees' part to be kept, observed and performed.
7. The Lessees agree to execute and deliver to the Lender, at any time or
times during which this Assignment shall be in effect, such further instruments
as the Agent may deem necessary to make effective this Assignment and the
several covenants of the Lessees herein contained.
8. Failure of the Agent to avail itself of any of the terms, covenants and
conditions of this Assignment for any period of time, or at any time or times,
shall not be construed or deemed to be a waiver of any of its rights hereunder.
The rights and remedies of the Agent under this instrument are cumulative and
are not in lieu of but are in addition to any other rights and remedies which
the Agent shall have under or by virtue of the Credit Documents. The rights and
remedies of the Agent hereunder may be exercised from time to time and as often
as such exercise is deemed expedient by Agent.
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<PAGE>
9. The Agent shall have the right to assign to any subsequent
Administrative Agent, the Lessees' rights, title and interest in any Lease
hereby or hereafter assigned, subject, however, to the provisions of this
Assignment.
10. Upon payment in full of all the Obligations, as well as termination of
the Revolving Loan Commitments, this Assignment shall become and be void and of
no effect and, in that event, upon the request of the Lessees, the Agent
covenants to execute and deliver to the Lessees instruments effective to
evidence the termination of this Assignment and/or the reassignment to the
Lessees of the rights, power and authority granted herein. As against the Agent,
at all times during which this Assignment shall be in effect, there shall be no
merger of the Leases assigned hereunder or the leasehold estates created thereby
with the fee estate in the Premises by reason of the fact that said Leases or
any interest therein may be held by or for the account of any person, firm or
corporation which may be or become the owner of said fee estate, unless the
Assignee shall consent in writing to said merger.
11. In connection with any litigation arising out of this Assignment, if
the Agent or a Lender is the prevailing party in such litigation, the Agent or a
Lender shall be entitled to recover all costs incurred, including reasonable
attorneys' fees and attorneys' fees and costs incurred on appeal.
12. Any waiver or modification of the terms of this Assignment by the Agent
shall be in writing and signed by a duly authorized officer or agent of the
Agent.
13. In the event any one or more of the provisions contained herein shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall, at the option of Agent,
not affect any other provision hereof, and shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
14. No delay or omission on the part of Agent in exercising any right
hereunder shall operate as a waiver of that right or of any other right
hereunder or under the Credit Documents.
15. This Assignment shall be binding upon and inure to the benefit of the
Agent and the Lessees, their heirs, personal representatives, successors and
assigns.
16. This Assignment and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the law of the State of
Florida except to the extent the law of the jurisdiction of the location of the
Premises requires that such law control.
17. The terms "Lessees" and "Agent" as used herein shall in every instance
include said parties' heirs, executors, administrators, successors, legal
representatives and assigns and
-3-
<PAGE>
shall denote the singular and/or plural, and the masculine and/or feminine and
natural and/or artificial persons, whenever and wherever the context so requires
or admits.
ABLE TELCOM HOLDING CORP., a Florida
corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
TELECOMMUNICATION SERVICES GROUP, INC.,
a Florida corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
ABLE INTEGRATED SYSTEMS, INC., a Florida
corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
ABLE COMMUNICATION SERVICES, INC., a
Florida corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
H.C. CONNELL, INC., a Florida corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
DIAL COMMUNICATIONS, INC., a Florida
corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
-4-
<PAGE>
TRAFFIC MANAGEMENT GROUP, INC., a Florida
corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
TRANSPORTATION SAFETY CONTRACTORS,
INC., a Florida corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
TRANSPORTATION SAFETY CONTRACTORS OF
VIRGINIA, INC., a Virginia corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
GEORGIA ELECTRIC COMPANY, a Georgia
corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
COMMUNICATIONS DEVELOPMENT GROUP,
INC., a Florida corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
ABLE WIRELESS, INC., a Florida corporation
By: _________________________________________
Print Name: _________________________________
Title: ______________________________________
-5-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ABLE TELCOM
HOLDING CORP. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> OCT-31-1998
<PERIOD-START> NOV-01-1997
<PERIOD-END> APR-30-1998
<CASH> 6,053,814
<SECURITIES> 0
<RECEIVABLES> 24,745,172
<ALLOWANCES> 0
<INVENTORY> 3,578,516
<CURRENT-ASSETS> 5,667,937
<PP&E> 38,426,494
<DEPRECIATION> 10,636,831
<TOTAL-ASSETS> 83,067,629
<CURRENT-LIABILITIES> 30,943,897
<BONDS> 0
0
0
<COMMON> 9,756
<OTHER-SE> 23,615,319
<TOTAL-LIABILITY-AND-EQUITY> 83,067,629
<SALES> 56,819,639
<TOTAL-REVENUES> 56,819,639
<CGS> 0
<TOTAL-COSTS> 53,870,111
<OTHER-EXPENSES> (359,413)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 793,878
<INCOME-PRETAX> 2,515,063
<INCOME-TAX> 956,758
<INCOME-CONTINUING> 2,515,063
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,165,024
<EPS-PRIMARY> 0.10
<EPS-DILUTED> 0.09
</TABLE>
