REIMBURSEMENT AGREEMENT
FOR STANDBY LETTER(S) OF CREDIT
THIS REIMBURSEMENT AGREEMENT FOR STANDBY LETTER(S) OF CREDIT (this
"Agreement") is made as of this 3rd day of February, 2000, by STV GROUP,
INCORPORATED and STV INCORPORATED and its SUBSIDIARIES listed on the attached
Schedule A (individually and collectively, the "Applicant"), with an address at
205 West Welsh Drive, Douglassville, Pennsylvania 19518 in favor of PNC BANK,
NATIONAL ASSOCIATION (the "Bank"), with an address at 237 Fifth Avenue, Third
Floor Annex, Pittsburgh, PA 15222. From time to time by submitting an
application on a form approved by the Bank (an "Application"), the Applicant may
request the Bank to issue one or more letters of credit (each, a "Credit"). The
Bank may issue any such Credit, but the Bank shall have no obligation to do so
unless otherwise agreed in writing. The Applicant agrees that the following
terms and conditions shall apply in the event the Bank issues any Credit:
1. Definitions and Interpretation. (a) In addition to terms defined
elsewhere in this Agreement: "Base Rate" means a fluctuating rate per annum
equal to the greater of (i) the interest rate per annum announced from time to
time by the Bank as its then prime rate, which rate may not be the lowest rate
then being charged commercial borrowers by the Bank; or (ii) the rate applicable
to overnight federal funds transactions, as reasonably determined by the Bank,
plus .50%; "Business Day" means any day other than a Saturday, Sunday or other
day on which banks in Pittsburgh, Pennsylvania, or any other city of which the
Bank may give the Applicant notice from time to time, are authorized or required
by law to close; "Dollar Equivalent" means, with respect to an amount in any
currency other than U.S. dollars, as of any date, the amount of U.S. dollars
into which such amount in such currency may be converted at the spot rate at
which U.S. dollars are offered by the Bank in Pittsburgh for such currency at
approximately 11:00 a.m., Prevailing Time, on such date, plus all actual costs
of settlement, including amounts incurred by the Bank to comply with currency
exchange requirements of any Governmental Authority; "Governmental Authority"
means any de facto or de jure domestic or foreign government, court, tribunal,
agency, or other purported authority; "Prevailing Time" means the prevailing
time in Pittsburgh, Pennsylvania (or any other city of which the Bank may have
given the Applicant notice) on the date in question; "Taxes" means all taxes,
fees, duties, levies, imposts, deductions, charges or withholdings of any kind
(other than taxes on the Bank's net income); and "UCP" means the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, and any subsequent official revision thereof.
(b) If this Agreement is signed by two or more persons, each shall be
deemed to make to the Bank all the representations, warranties and covenants
contained herein, and each shall be jointly and severally liable hereunder. Any
reference herein to this Agreement, an Application, a Credit, or any other
instrument, agreement or document related hereto or thereto shall be deemed to
refer to all amendments, modifications, extensions and renewals hereof and
thereof. Except to the extent the context clearly otherwise requires, terms not
defined herein shall have the
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respective meanings ascribed to them by the UCP or, if not defined therein, then
by relevant provisions of the Uniform Commercial Code (the "UCC") of
Pennsylvania or such other jurisdiction of which the Bank may give the Applicant
notice, with the definitions of Article 5 of the UCC controlling over any
conflicting definitions in other UCC Articles. Determinations made by the Bank
pursuant to the terms hereof shall be conclusive absent manifest error.
2. Payments. (a) The Bank will notify Applicant of any demand for
payment made under a Credit, and the Applicant will pay to the Bank the amount
to be paid by the Bank with respect to each draft or other payment demand made
under a Credit no later than 10 a.m., Prevailing Time, on the date such payment
is to be made by the Bank, or such earlier time as the Bank may reasonably
require. If a Credit calls for the delivery by the Bank of an item other than
money, the Applicant shall deliver or cause to be delivered such item to the
Bank at such time, in advance of the time the Bank is to deliver such item, as
the Bank may reasonably require.
(b) The Applicant will pay to the Bank upon receipt of the Bank's
invoice therefor (i) interest on all amounts payable to the Bank hereunder from
the date due to the date of payment, at the Base Rate plus 4% (or, if this
Agreement is delivered in connection with a separate credit agreement, loan
agreement, promissory note or other agreement governing the payment of interest
by the Applicant to the Bank, then at the rate of interest applicable following
the occurrence of an event of default thereunder); provided that in no event
shall the Applicant pay hereunder interest in excess of the maximum rate
permitted by applicable law; (ii) the Bank's fees as separately agreed to by the
Applicant and the Bank, as well as the customary commissions and other charges
regularly charged by the Bank for letters of credit; and (iii) all charges and
expenses paid or incurred by the Bank or any of its correspondents in connection
with this Agreement or any Credit, including all reasonable legal fees and
expenses, whether of internal or external counsel to the Bank. All periodic
interest, fees and commissions shall be calculated on the basis of the actual
days elapsed in a 360 day year, and interest shall continue to accrue at the
applicable rate set forth herein notwithstanding one or more defaults or the
entry of any judgment.
(c) All amounts payable hereunder by the Applicant shall be paid to the
Bank at its address set forth above or at such other place as the Bank may give
notice from time to time, in immediately available funds in the currency
specified by the Bank, without set off, defense, recoupment, deduction,
cross-claim or counterclaim of any kind; and free and clear of, and without
deduction for, any present or future Taxes. If the Bank or the Applicant pays
any Taxes, whether or not correctly or legally assessed, the amounts payable
hereunder shall be increased so that, after the payment of such Taxes, the Bank
shall have received an amount equal to the sum the Bank would have received had
no such Taxes been paid. If any amount payable hereunder is denominated in a
currency other than U.S. dollars, the Applicant shall make payment in such
currency or, at the Bank's option, shall pay the Dollar Equivalent thereof. To
effect any payment due hereunder, the Bank may debit any account that the
Applicant may have with the Bank or any of its affiliates.
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3. Nature of Obligations. (a) The Applicant's obligations to the Bank
under this Agreement are absolute, unconditional and irrevocable, and shall be
paid and performed in accordance with the terms hereof irrespective of any act,
omission, event or condition, including, without limitation (i) the form of, any
lack of power or authority of any signer of, or the lack of validity,
sufficiency, accuracy, enforceability or genuineness of (or any defect in or
forgery of any signature or endorsement on) any draft, demand, document,
certificate or instrument presented in connection with any Credit, or any fraud
or alleged fraud in connection with any Credit or any obligation underlying any
Credit, in each case, even if the Bank or any of its correspondents have been
notified thereof; (ii) any claim of breach of warranty that might be made by the
Applicant or the Bank against any beneficiary of a Credit, or the existence of
any claim, set off, recoupment, counterclaim, cross-claim, defense, or other
right that the Applicant may at any time have against any beneficiary, any
successor beneficiary, any transferee or assignee of the proceeds of a Credit,
the Bank or any correspondent or agent of the Bank, or any other person, however
arising; (iii) any acts or omissions by, or the solvency of, any beneficiary of
any Credit, or any other person having a role in any transaction or obligation
relating to a Credit; (iv) any failure by the Bank to issue any Credit in the
form requested by the Applicant, unless the Bank receives written notice from
the Applicant of such failure within one Business Day after the Applicant shall
have received (by facsimile transmission or otherwise) a copy of such Credit and
such error is material; and (v) any action or omission (including failure or
compulsion to honor a presentation under any Credit) by the Bank or any of its
correspondents in connection with a Credit, draft or other demand for payment,
document, or any property relating to a Credit, and resulting from any
censorship, law, regulation, order, control, restriction, or the like,
rightfully or wrongly exercised by any Governmental Authority, or from any other
cause beyond the reasonable control of the Bank or any of its correspondents, or
for any loss or damage to the Applicant or to anyone else, or to any property of
the Applicant or anyone else, resulting from any such action or omission.
(b) The Bank is authorized to honor any presentation under a Credit
without regard to, and without any duty on the Bank's part to inquire into, any
transaction or obligation underlying such Credit, or any disputes or
controversies between the Applicant and any beneficiary of a Credit, or any
other person, notwithstanding that the Bank may have assisted the Applicant in
the preparation of the wording of any Credit or documents required to be
presented thereunder or that the Bank may be aware of any underlying transaction
or obligation or be familiar with any of the parties thereto.
(c) The Applicant agrees that any action or omission by the Bank or any
of its correspondents in connection with any Credit or presentation thereunder
shall be binding on the Applicant and shall not result in any liability to the
Bank or any of its correspondents in the absence of the gross negligence or
willful misconduct of the Bank. Without limiting the generality of the
foregoing, the Bank and each of its correspondents (i) may rely on any oral or
other communication believed in good faith by the Bank or such correspondent to
have been authorized or given by or on behalf of the Applicant; (ii) may honor
any presentation if the documents presented appear on their face substantially
to comply with the terms and conditions of the relevant Credit; (iii) shall not
be liable to the Applicant for any consequential, punitive or special damages,
or for any damages resulting from any change in the value of any property
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relating to a Credit; (iv) may honor a previously dishonored presentation under
a Credit, whether such dishonor was pursuant to a court order, to settle or
compromise any claim of wrongful dishonor, or otherwise, and shall be entitled
to reimbursement to the same extent as if such presentation had initially been
honored, together with any interest paid by the Bank; (v) may honor any drawing
that is payable upon presentation of a statement advising negotiation or
payment, upon receipt of such statement (even if such statement indicates that a
draft or other document is being separately delivered), and shall not be liable
for any failure of any such draft or other document to arrive, or to conform in
any way with the relevant Credit; and (vi) may pay any paying or negotiating
bank claiming that it rightfully honored under the laws or practices of the
place where such bank is located.
(d) If the Applicant or any other person seeks to delay or enjoin the
honor by the Bank of a presentation under a Credit, the Bank shall have no
obligation to delay or refuse to honor the presentation until validly so ordered
by a court of competent jurisdiction.
4. Set Off. The Applicant grants the Bank a right of set off against,
to the fullest extent permitted under applicable law, all of the Applicant's (a)
property relating to any Credit; (b) property relating to any transaction or
obligation underlying a Credit; and (c) property in the possession of, on
deposit with, or in transit to, the Bank, now or hereafter, regardless of how
obtained or held (whether in a general or special account or deposit, jointly or
with someone else, in safekeeping, or otherwise). The Bank's right of set off
may be exercised without demand on or notice to the Applicant. The Bank shall be
deemed to have exercised its right of set off immediately upon the occurrence of
an Event of Default, although the Bank may enter such set off on its books and
records at a later time. The Applicant waives mutuality and maturity of debt in
connection with such right of set off. The Applicant agrees from time to time to
deliver to the Bank, on demand, such security or additional security as the Bank
may require to further secure the Applicant's obligations hereunder.
5. Representations, Warranties, Covenants. The Applicant represents,
warrants, and covenants that (a) if not a natural person, the Applicant is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and duly qualified to do business in those
jurisdictions in which its ownership of property or the nature of its business
activities makes such qualification necessary; (b) the Applicant has the
requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; and all such action has been duly authorized
by all necessary proceedings on the Applicant's part, and neither now nor
hereafter shall contravene or result in a breach of any organizational document
of the Applicant, any agreement, document, or instrument binding on the
Applicant or its property, or any law, treaty, regulation, or order of any
Governmental Authority, or require any notice, filing, or other action to or by
any Governmental Authority; (c) all financial statements and other information
received from the Applicant by the Bank prior to the date hereof fairly and
accurately present its financial condition in accordance with generally accepted
accounting principles, and there shall occur no material adverse change in the
Applicant's financial condition or business operations since the date hereof;
(d) from time to time, the Applicant shall
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execute and deliver such further instruments and agreements and take and permit
such further actions as may be reasonably necessary to carry out the provisions
and purposes of this Agreement, and the Applicant shall provide such evidence of
compliance with the terms hereof and such financial statements and other
information concerning the Applicant's financial condition and/or business
operations as the Bank may reasonably request; and (e) the Applicant and each
transaction and obligation underlying each Credit are and shall remain in
compliance with all laws, treaties, rules, and regulations of any Governmental
Authority, including, without limitation, foreign exchange control, United
States foreign assets control, and currency reporting laws and regulations, now
or hereafter applicable.
6. Events of Default. The occurrence of any of the following is an
"Event of Default" hereunder: (a) the Applicant's failure to pay when due any
obligation to the Bank or any of its affiliates under this Agreement or
otherwise; (b) the Applicant's failure to perform or observe any other term or
covenant of this Agreement, or any representation or warranty contained in this
Agreement or in any document given now or hereafter by the Applicant in
connection herewith is materially false, erroneous, or misleading; (c) the
occurrence of any event of default or default and the lapse of any notice or
cure period under any other debt, liability or obligation of the Applicant to
the Bank or any of its affiliates; (d) the failure to pay or perform any
material obligation to any other person if such failure may cause any such
obligation to be due or performable immediately; (e) any levy, garnishment,
attachment, or similar proceeding is instituted against the Applicant's property
in possession of, on deposit with, or in transit to, the Bank; (f) the
Applicant's dissolution or termination, or the institution by or against the
Applicant or any of its property of any proceeding relating to bankruptcy,
receivership, insolvency, reorganization, liquidation, conservatorship,
foreclosure, execution, attachment, garnishment, levy, assignment for the
benefit of creditors, relief of debtors, or similar proceeding (and, in the case
of any such proceeding instituted against the Applicant, such proceeding is not
dismissed or stayed within 30 days of the commencement thereof); (g) the entry
of a material final judgment against the Applicant and the failure of the
Applicant to discharge the judgment within 10 days of the final entry thereof;
(h) any material adverse change in the business, assets, operations, financial
condition or results of operations of the Applicant; (i) the death or legal
incompetency of an individual Applicant or, if the Applicant is a partnership,
the death or legal incompetency of any individual general partner; (j) the
occurrence of any of the above events with respect to any person which has now
or hereafter guarantied or provided any collateral for any of the Applicant's
obligations hereunder; or (k) any guarantee, or any document, instrument or
agreement purporting to provide the Bank security for the Applicant's
obligations hereunder shall be challenged, repudiated, or unenforceable for any
reason.
7. Remedies. Upon the occurrence of any Event of Default (a) the Bank
may exercise from time to time any of the rights and remedies available to the
Bank under this Agreement, under any other documents now or in the future
evidencing or securing obligations of the Applicant to the Bank, or under
applicable law, and all such remedies shall be cumulative and not exclusive; and
(b) the Applicant shall promptly deliver to the Bank in immediately available
funds, as collateral for any and all obligations of the Applicant to the Bank,
an amount equal to
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105% of the maximum aggregate amount then or at any time thereafter available to
be drawn under all outstanding Credits, and the Applicant hereby pledges to the
Bank and grants to the Bank a security interest in all such funds as security
for such obligations, acknowledges that the Bank shall at all times have control
of such funds and shall be authorized to give entitlement orders (as defined in
the UCC) with respect to such funds, without further consent of the Applicant or
any other person, and agrees promptly to do all further things that the Bank may
deem necessary in order to grant and perfect the Bank's security interest in
such funds. The Applicant waives presentment, protest, dishonor, notice of
dishonor, demand, notice of protest, notice of non-payment, and notice of
acceptance of this Agreement, and any other notice or demand of any kind from
the Bank.
8. Subrogation. The Bank, at its option, shall be subrogated to the
Applicant's rights against any person who may be liable to the Applicant on any
transaction or obligation underlying any Credit, to the rights of any holder in
due course or person with similar status against the Applicant, and to the
rights of any beneficiary or any successor or assignee of any beneficiary.
9. Indemnification. The Applicant shall indemnify and hold the Bank and
its affiliates and agents, and each of their respective officers, directors,
shareholders and employees (each, an "Indemnified Party") harmless from and
against any and all claims, liabilities, losses, damages, Taxes, penalties,
interest, judgments, costs and expenses (including reasonable legal fees and
costs, whether of internal or external counsel to the Bank), which may be
incurred by or awarded against any Indemnified Party, and which arise out of or
in connection with (a) any Credit, this Agreement, or the preparation for a
defense of any investigation, litigation, or proceeding arising out of or in
connection herewith or therewith (and irrespective of who may be the prevailing
party); (b) any payment or action taken in connection with any Credit,
including, without limitation, any action or proceeding seeking to restrain any
drawing under a Credit or to compel or restrain any payment or any other action
under a Credit or this Agreement (and irrespective of who may be the prevailing
party); (c) the enforcement of this Agreement or the collection or sale of any
property or collateral; and (d) any act or omission of any Governmental
Authority or other cause beyond the Bank's reasonable control; except, in each
case, to the extent such claim, liability, loss, damage, Tax, penalty, interest,
judgment, cost or expense is found by a final judgment of a court of competent
jurisdiction to have resulted from the Bank's gross negligence or willful
misconduct.
10. Miscellaneous. All notices, demands, requests, consents, approvals
and other communications required or permitted hereunder shall be in writing,
will be effective upon receipt, and shall be delivered by registered mail,
return receipt requested, by facsimile transmission with confirmation of
delivery, or by nationally recognized overnight courier service, to the intended
recipient at its address set forth in this Agreement, or at such other address
of which such party shall have given notice to the other in accordance herewith.
No delay or omission of the Bank to exercise any right or power arising
hereunder shall impair any
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such right or power or be considered to be a waiver of any such right or power.
No modification, amendment or waiver of any provision of this Agreement, or
consent to any departure therefrom, will be effective unless made in a writing
signed by the Bank, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. If any provision of
this Agreement is found to be invalid by a court, all the other provisions of
the Agreement will remain in full force and effect. If this Agreement is
executed by more than one Applicant, each Applicant waives any and all defenses
to payment and performance hereunder based upon principles of suretyship,
impairment of collateral, or otherwise and, without limiting the generality of
the foregoing, each Applicant consents to: any change in the time, manner, or
place of payment of or in any other term of all or any of the obligations of any
other Applicant hereunder or otherwise, and any exchange or release of any
property or collateral, or the release or other amendment, extension, renewal,
waiver of, or consent to departure from, the terms hereof or of any guaranty or
security agreement or any other agreement related hereto. This Agreement will be
binding upon and inure to the benefit of the Applicant and the Bank and their
respective heirs, executors, administrators, successors and assigns; provided,
however, that the Applicant may not assign this Agreement in whole or in part
without the Bank's prior written consent and the Bank may at any time assign
this Agreement in whole or in part. The Applicant hereby authorizes the Bank,
from time to time without notice to the Applicant, to record telephonic and
other electronic communications of the Applicant and provide any information
pertaining to the financial condition, business operations or creditworthiness
of the Applicant to or at the direction of any Governmental Authority, to any of
the Bank's correspondents, and the Bank's affiliates, and to any of its or their
directors, officers, employees, auditors and professional advisors, to any
person which in the ordinary course of its business makes credit reference
inquiries, to any person which may succeed to or participate in all or part of
the Bank's interest hereunder, and as may be necessary or advisable for the
preservation of the Bank's rights hereunder. This is a continuing Agreement and
shall remain in full force and effect until no obligations of the Applicant and
no Credit exist hereunder; provided, however, that termination of this Agreement
shall not release the Applicant from any payment or performance that is
subsequently rescinded or recouped, and the obligation to make any such payment
or performance shall continue until paid or performed as if no such payment or
performance ever occurred. Provisions concerning payment, indemnification,
increased costs, Taxes, immunity, and jurisdiction shall survive the termination
of this Agreement.
11. Financial Institution Applicant. If one of two or more Applicants
is a financial institution (the "Financial Institution"), the Financial
Institution shall be deemed to request the issuance of any Credit for its
customer (the "Customer") who has also executed this Agreement as an Applicant.
In consideration of any such issuance, and as a direct and primary obligation,
the Financial Institution agrees to pay the Bank all amounts that become due and
payable to the Bank under this Agreement, when and as due, in accordance with
the terms hereof. The Financial Institution hereby assigns to the Bank all
security interests now or at any time existing granted in favor of the Financial
Institution as security for the Customer's obligations to the Financial
Institution arising out of this Agreement or any Credit, and agrees to do all
things necessary from time to time to effect such assignment.
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12. Representative of Applicant. If this Agreement is executed by more
than one Applicant and neither is a Financial Institution, the Applicant whose
signature is first shown below shall have the exclusive right to deal with the
Bank in connection with the matters addressed herein, notwithstanding
conflicting instructions or requests from any other Applicant.
13. Waiver of Immunity. The Applicant acknowledges that this Agreement
is entered into, and each Credit will be issued, for commercial purposes and, if
the Applicant now or hereafter acquires any immunity (sovereign or otherwise)
from the jurisdiction of any court or from any legal process with respect to
itself or any of its property, the Applicant hereby irrevocably waives such
immunity.
14. Jurisdiction. The Applicant hereby irrevocably consents to the
non-exclusive jurisdiction of any state or federal court in the judicial
district or the state in which the Bank's office set forth above is located,
provided that nothing contained in this Agreement will prevent the Bank from
bringing any action, enforcing any award or judgment, or exercising any right
against the Applicant individually, against any security, or against any
property of the Applicant within any other jurisdiction. The Applicant agrees
that the venue provided above is the most convenient forum for the Bank and the
Applicant. The Applicant waives any objection to venue and any objection based
on a more convenient forum in any action under this Agreement.
15. WAIVER OF JURY TRIAL. THE APPLICANT IRREVOCABLY WAIVES ALL RIGHTS
APPLICANT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS AGREEMENT, ANY CREDIT, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS AGREEMENT OR ANY CREDIT, OR ANY OBLIGATION OR TRANSACTION
UNDERLYING ANY OF THE FOREGOING. THE APPLICANT ACKNOWLEDGES THAT THIS WAIVER IS
KNOWING AND VOLUNTARY.
16. Governing Law. This Agreement and each Credit shall be interpreted,
construed, and enforced according to (a) the laws of the Commonwealth of
Pennsylvania, including, without limitation, the UCC; and (b) the UCP, which is
incorporated herein by reference and which shall control (to the extent not
prohibited by the law referred to in (a)) in the event of any inconsistent
provisions of such law. In the event that a body of law other than that set
forth above is applicable to a Credit, the Applicant shall be obligated to pay
and reimburse the Bank for any payment made under such Credit if such payment
is, in the Bank's judgment, justified under either the law governing this
Agreement or the law governing such Credit.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
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STV GROUP, INCORPORATED
(First Applicant's Name)
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: CFO
STV INCORPORATED
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: CFO
STV CONSTRUCTION SERVICES, INC.
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: CFO
STV INTERNATIONAL, INC.
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: CFO
STV/ENVIRONMENTAL, INC.
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: CFO
STV SURVEYING, INC.
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: CFO
[SIGNATURES ARE CONTINUED ON THE FOLLOWING PAGE]
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<PAGE>
STV CONSTRUCTION, INC.
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: CFO
STV ARCHITECTS, INC.
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: Secretary
STV SILVER & ZISKIND ARCHITECTS,
P.C.
By: /s/ Peter W. Knipe (SEAL)
Print Name: Peter W. Knipe
Title: Secretary
STV ARCHITECTS, P.C.
By: /s/ Michael D. Garz (SEAL)
Print Name: Michael D. Garz
Title: President
M:\LEGAL\Simon\STV Group\Reimbursement3 Rev. 3/99
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