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EXHIBIT 10(b)
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$375,000,000
CREDIT AGREEMENT
Dated as of March 22, 2001
Among
FLORIDA EAST COAST INDUSTRIES, INC.
as Borrower
The Banks Listed Herein
and
BANK OF AMERICA, N.A.
as Administrative Agent for the Banks,
and as Swingline Bank and Letter of Credit Issuing Bank
FIRST UNION NATIONAL BANK
as Syndication Agent
and
SUNTRUST BANK
as Documentation Agent for the Banks
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BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Book Manager
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TABLE OF CONTENTS
ARTICLE I LOANS..................................................................................................1
SECTION 1.01. Commitments...............................................................................1
SECTION 1.02. Method of Borrowing.......................................................................2
SECTION 1.03. Notes; Principal Payments.................................................................3
SECTION 1.04. Interest..................................................................................4
SECTION 1.05. Fees; Termination and Reduction of Commitments............................................4
SECTION 1.06. Additional Interest; Alternate Rate of Interest; Maximum Interest Rate....................6
SECTION 1.07. Continuation and Conversion of Revolving Loans............................................7
SECTION 1.08. Optional Prepayment of Loans..............................................................8
SECTION 1.09. Mandatory Payments........................................................................8
SECTION 1.10. Manner of Payment.........................................................................8
SECTION 1.11. Increased Cost and Reduced Return.........................................................9
SECTION 1.12. Illegality...............................................................................10
SECTION 1.13. Indemnity for Eurodollar Loans...........................................................11
SECTION 1.14. Taxes....................................................................................11
SECTION 1.15. Bank's Duty to Mitigate..................................................................12
SECTION 1.16. Pro Rata Treatment.......................................................................13
SECTION 1.17. Certain Notices..........................................................................13
SECTION 1.18. Extension of Commitment Termination Date.................................................15
SECTION 1.19. Additional Provisions Relating to Swingline Loans........................................16
SECTION 1.20. Additional Provisions Relating to Letters of Credit......................................16
ARTICLE II COLLATERAL AND GUARANTIES............................................................................20
SECTION 2.01. Collateral...............................................................................20
SECTION 2.02. Guaranty.................................................................................21
SECTION 2.03. Loan Documents...........................................................................21
ARTICLE III CONDITIONS OF LENDING...............................................................................21
SECTION 3.01. Initial Loans............................................................................21
SECTION 3.02. All Loans................................................................................21
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................................................................22
SECTION 4.01. Organization; Powers; Qualification......................................................22
SECTION 4.02. Authorization; Enforceability............................................................22
SECTION 4.03. Consents and Approvals...................................................................23
SECTION 4.04. Financial Statements.....................................................................23
SECTION 4.05. No Material Adverse Change...............................................................24
SECTION 4.06. Borrower Group...........................................................................24
(i)
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SECTION 4.07. Litigation...............................................................................25
SECTION 4.08. Tax Returns..............................................................................25
SECTION 4.09. Properties...............................................................................25
SECTION 4.10. Employee Benefit Plans...................................................................25
SECTION 4.11. Government Regulation....................................................................26
SECTION 4.12. Margin Stock.............................................................................26
SECTION 4.13. SEC Filings..............................................................................26
SECTION 4.14. Necessary Rights.........................................................................27
SECTION 4.15. Hazardous Wastes.........................................................................27
SECTION 4.16. No Brokers or Finders....................................................................27
SECTION 4.17. No Default of Debt; Solvency.............................................................27
SECTION 4.18. Agreements...............................................................................28
SECTION 4.19. Compliance with Law......................................................................28
SECTION 4.20. Labor Controversies......................................................................28
SECTION 4.21. No Material Misstatements................................................................28
ARTICLE V AFFIRMATIVE COVENANTS.................................................................................29
SECTION 5.01. Corporate Existence and Maintenance of Properties........................................29
SECTION 5.02. Compliance with Laws.....................................................................29
SECTION 5.03. Insurance................................................................................32
SECTION 5.04. Obligations and Taxes....................................................................32
SECTION 5.05. Accounting Methods and Financial Records.................................................32
SECTION 5.06. Financial Statements, Certificates and Reports...........................................33
SECTION 5.07. Access to Property and Records...........................................................34
SECTION 5.08. Notice of Default........................................................................35
SECTION 5.09. Notice of Litigation and Other Actions...................................................35
SECTION 5.10. Notice of Strikes, Labor Controversies, etc..............................................35
ARTICLE VI NEGATIVE COVENANTS...................................................................................35
SECTION 6.01. Liens....................................................................................35
SECTION 6.02. Debt.....................................................................................36
SECTION 6.03. Liquidation, Sale of Assets and Merger...................................................37
SECTION 6.04. Acquisitions and Investments.............................................................37
SECTION 6.05. Guarantees...............................................................................39
SECTION 6.06. Sale and Leaseback, Rentals..............................................................39
SECTION 6.07. No Distributions or Management Fees......................................................39
SECTION 6.08. Breach or Violation......................................................................39
SECTION 6.09. Use of Proceeds..........................................................................39
SECTION 6.10. Transactions with Affiliates.............................................................40
SECTION 6.11. Restrictive Covenants....................................................................40
SECTION 6.12. Issuance or Disposition of Capital Securities............................................40
SECTION 6.13. ERISA Compliance.........................................................................40
SECTION 6.14. Future Group Members.....................................................................41
(ii)
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ARTICLE VII FINANCIAL COVENANTS.................................................................................41
SECTION 7.01. Maximum Leverage Ratio...................................................................41
SECTION 7.02. Minimum Group Net Worth..................................................................41
SECTION 7.03. Minimum Fixed Charge Coverage Ratio......................................................42
SECTION 7.04. Maximum Global Leverage Ratio............................................................42
ARTICLE VIII EVENTS OF DEFAULT..................................................................................42
SECTION 8.01. Events of Default........................................................................42
SECTION 8.02. Exercise of Remedies.....................................................................44
ARTICLE IX THE AGENT............................................................................................45
SECTION 9.01. Appointment, Powers and Immunities.......................................................45
SECTION 9.02. Reliance by Administrative Agent.........................................................46
SECTION 9.03. Defaults.................................................................................46
SECTION 9.04. Rights as Bank...........................................................................46
SECTION 9.05. Indemnification..........................................................................47
SECTION 9.06. Non-Reliance on Administrative Agent and Other Banks.....................................47
SECTION 9.07. Resignation of Administrative Agent......................................................47
SECTION 9.08. Benefit of Article IX....................................................................48
SECTION 9.09. Administrative Agent's Compensation......................................................48
ARTICLE X MISCELLANEOUS.........................................................................................48
SECTION 10.01. Modification............................................................................48
SECTION 10.02. Waiver..................................................................................48
SECTION 10.03. Expenses; Indemnification...............................................................49
SECTION 10.04. Notices.................................................................................50
SECTION 10.05. Governing Law...........................................................................51
SECTION 10.06. Invalid Provisions......................................................................51
SECTION 10.07. Nonliability of Banks...................................................................51
SECTION 10.08. Binding Effect and Assignability........................................................52
SECTION 10.09. Entirety; Conflicts.....................................................................52
SECTION 10.10. Headings, etc...........................................................................52
SECTION 10.11. Survival................................................................................52
SECTION 10.12. Assignments and Participations..........................................................52
SECTION 10.13. No Third Party Beneficiary..............................................................54
SECTION 10.14. WAIVER OF JURY TRIAL....................................................................54
SECTION 10.15. Multiple Counterparts...................................................................54
SECTION 10.16. Disclosures.............................................................................54
SECTION 10.17. Right of Setoffs; Adjustments...........................................................55
SECTION 10.18. Repayments in Bankruptcy................................................................55
ARTICLE XI DEFINITIONS..........................................................................................56
(iii)
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SECTION 11.01. Definitions.............................................................................56
SECTION 11.02. Other Definitional Provisions...........................................................56
SECTION 11.03. Accounting Matters......................................................................56
EXHIBIT A - DEFINITIONS.........................................................................................A-1
EXHIBIT B-1- FORM OF REVOLVING NOTE.............................................................................B-1
EXHIBIT B-2 - FORM OF SWINGLINE NOTE............................................................................B-2
EXHIBIT C - FORM OF PLEDGE AGREEMENT............................................................................C-1
EXHIBIT D - FORM OF GUARANTY AGREEMENT..........................................................................D-1
EXHIBIT E - CONDITIONS TO INITIAL LOANS.........................................................................E-1
EXHIBIT F - COMMITMENT TRANSFER SUPPLEMENT......................................................................F-1
EXHIBIT G - FORM OF COMPLIANCE CERTIFICATE......................................................................G-1
EXHIBIT H - FORM OF TRAFFIC SUMMARY.............................................................................H-1
EXHIBIT I - FORM OF NOTICE OF BORROWING.........................................................................I-1
(iv)
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of March 22, 2001, among FLORIDA EAST
COAST INDUSTRIES, INC., a Florida corporation (the "Borrower"), the Banks set
forth on the signature page hereto (the "Banks"), BANK OF AMERICA, N.A., a
national banking association, as administrative agent for the Banks under this
Agreement (in such capacity, the "Administrative Agent") and as Swingline Bank
and Letter of Credit Issuing Bank, FIRST UNION NATIONAL BANK, a national banking
association, as syndication agent (in such capacity, the "Syndication Agent"),
and SUNTRUST BANK, a Georgia banking corporation, as documentation agent for the
Banks under this Agreement (in such capacity, the "Documentation Agent") (unless
otherwise indicated, capitalized terms herein have the meanings set forth in
Exhibit A hereto), recites and provides as follows:
RECITALS
WHEREAS, the Borrower has requested that the Banks make Loans to the
Borrower in an aggregate principal amount of up to $375,000,000 to be utilized
by the Borrower and other Group Members (i) for working capital, capital
expenditures, investments and/or loans to EPIK and other lawful corporate
purposes, (ii) to finance certain acquisitions and (iii) to finance capital
stock repurchases, all subject to the limits set forth herein; and
WHEREAS, the Banks are willing to extend such credit on the terms and
subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises set forth herein
and for other valuable consideration, the parties agree as follows:
ARTICLE I
LOANS
SECTION 1.01.00 Commitments.
Subject to the terms and conditions and relying upon the
representations and warranties herein,
(a) Revolving Credit Facility Commitment. Each Bank, severally and not
jointly, agrees to make revolving credit loans ("Revolving Loans") to the
Borrower, from time to time on or after the Closing Date and until the
Commitment Termination Date, in an aggregate principal amount at any time
outstanding not exceeding the amount of its Commitment, provided that the
aggregate principal amount of Revolving Loans at any one time outstanding (after
giving effect to the Loan requested) shall not exceed the aggregate Commitments
less the aggregate principal amount of Swingline Loans outstanding less the
aggregate stated amount of Letters of Credit outstanding. The Borrower may
borrow, repay and reborrow Revolving Loans on or after the Closing Date and
prior to the Commitment Termination Date, subject to the terms and conditions
herein.
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(b) Swingline Commitment. The Swingline Bank agrees to make revolving
credit loans (the "Swingline Loans") to the Borrower, from time to time on or
after the Closing Date and until the Commitment Termination Date, provided that
(i) the aggregate principal amount of Swingline Loans at any time outstanding
shall not exceed Ten Million Dollars ($10,000,000) and (ii) the aggregate
principal amount of Revolving Loans and Swingline Loans plus the aggregate
stated amount of Letters of Credit outstanding at any time shall not exceed the
aggregate Commitments. The Borrower may borrow, repay and reborrow Swingline
Loans on or after the Closing Date and prior to the Commitment Termination Date,
subject to the terms and conditions herein. Swingline Loans shall be subject to
the additional terms and conditions set forth in Section 1.19 below.
(c) Letter of Credit Commitment. The Issuing Bank shall issue, until
the Commitment Termination Date, and the Banks shall participate in, such
standby and commercial Letters of Credit in U.S. Dollars as the Borrower may
request for its own account or for the account of other Group Members, in a form
acceptable to the Issuing Bank, for the purposes hereinafter set forth; provided
that (i) the aggregate stated amount of Letters of Credit outstanding shall not
exceed Twenty-Five Million Dollars ($25,000,000) at any time and (ii) the
aggregate principal amount of Revolving Loans and Swingline Loans plus the
aggregate stated amount of Letters of Credit outstanding at any time shall not
exceed the aggregate Commitments. Letters of Credit issued hereunder shall not
have an original expiry date more than one year from the date of issuance or
extension. No Letter of Credit issued hereunder shall have an expiry date,
whether as originally issued or by extension, later than one week prior to the
Commitment Termination Date. Each Letter of Credit shall comply with the related
LOC Documents and such additional terms and conditions as the Issuing Bank may
reasonably require. The issuance date of each Letter of Credit shall be a
Business Day. Letters of Credit shall be subject to the additional terms and
conditions set forth in Section 1.20 below.
(d) Purpose. The Borrower and other Group Members will utilize the
proceeds of the Loans (i) for working capital, capital expenditures, investments
in or loans to EPIK and other lawful corporate purposes, (ii) to finance
acquisitions permitted by Section 6.04 hereof and (iii) to finance capital stock
repurchases permitted by Section 6.07 hereof.
SECTION 1.02.00 Method of Borrowing.
(a) Revolving Loans.
(i) Each Revolving Loan shall be either a Eurodollar Loan or a
Base Rate Loan as the Borrower may request subject to and in accordance
with this Section. Revolving Loans made by the Banks in any one
borrowing shall be in a minimum aggregate principal amount of
$5,000,000 and in integral multiples of $1,000,000 in excess thereof.
Revolving Loans shall be made ratably by the Banks in accordance with
their respective Percentages; provided, however, that the failure of
any Bank to make its Loan shall not in itself relieve any other Bank of
its obligation to lend hereunder. Each Bank may, at its option, fulfill
its commitment with respect to any Eurodollar Loan by causing a foreign
branch or Affiliate of such Bank to make such Loan, provided that any
exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of the applicable
Revolving Note. Subject to the other provisions of this
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Section and the provisions of Section 1.07, Loans of more than one type
may be outstanding at the same time.
(ii) The Borrower shall give notice as provided in Section
1.17(a) to the Administrative Agent of each requested borrowing of
Revolving Loans. Upon receipt by the Administrative Agent of notice
from the Borrower pursuant to this paragraph, the Administrative Agent
shall notify the Banks thereof and each Bank shall make its ratable
share (determined by its Percentage) of the borrowing available to the
Borrower as provided in Section 1.17(b).
(iii) Notwithstanding any provision in this Agreement to the
contrary, the Borrower shall not in any notice of borrowing under this
Section 1.02(a) request any Eurodollar Loan that would not be permitted
if characterized as a continuation or conversion pursuant to Section
1.07.
(b) Swingline Loans. Each Swingline Loan made by the Swingline Bank in
any one borrowing shall be in a minimum principal amount of $250,000. The
Borrower shall give notice as provided in Section 1.17(a) to the Swingline Bank
(with a copy to the Administrative Agent) of each requested borrowing of
Swingline Loans. Each such request for borrowing shall be irrevocable and shall
specify (i) that a Swingline Loan is requested, (ii) the date of the requested
borrowing (which shall be a Business Day), and (iii) the principal amount to be
borrowed.
(c) Letters of Credit. The Borrower shall give notice as provided in
Section 1.17 to the Issuing Bank (with a copy to the Administrative Agent) of
each request for issuance or extension of a Letter of Credit. Each such request
shall be irrevocable and shall specify, among other things, (i) that a Letter of
Credit issuance or extension is requested, (ii) the date of the requested
issuance or extension, (iii) the type, amount, expiry date and terms on which
the Letter of Credit is to be issued or extended, (iv) the form of the Letter of
Credit requested, and (v) the beneficiary of the Letter of Credit requested.
SECTION 1.03.00 Notes; Principal Payments.
(a) The Revolving Loans made by each Bank and the Borrower's obligation
to repay the Revolving Loans with interest in accordance with the terms of this
Agreement shall be evidenced by this Agreement, the records of such Bank and the
Revolving Notes, duly executed on behalf of the Borrower, dated the Closing
Date, in substantially the form attached hereto as Exhibit B-1, payable to the
order of such Bank in a maximum principal amount equal to its Commitment. Each
Revolving Note shall bear interest from its date on the outstanding principal
balance thereof as set forth in Section 1.04. Absent manifest error, the records
of the Administrative Agent shall be prima facie evidence of the Revolving Loans
of each Bank and accrued interest thereon and of all payments made in respect
thereof.
(b) The Swingline Loans made by the Swingline Bank and the Borrower's
obligation to repay the Swingline Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of the
Swingline Bank and the Swingline Note, duly executed on behalf of the Borrower,
dated the Closing Date, in substantially the form attached
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hereto as Exhibit B-2, payable to the order of the Swingline Bank in a maximum
principal amount equal to $10,000,000. The Swingline Note shall bear interest
from its date on the outstanding principal balance thereof as set forth in
Section 1.04. Absent manifest error, the records of the Administrative Agent
shall be prima facie evidence of the Swingline Loans and accrued interest
thereon and of all payments made in respect thereof.
(c) If not sooner paid, the entire unpaid principal balance of the
Loans shall be due and payable on the Commitment Termination Date (as such date
may be extended pursuant to Section 1.18 hereof).
SECTION 1.04.00 Interest.
(a) Base Rate Loans. Subject to the provisions of Section 1.06, each
Base Rate Loan and each other amount (other than principal on Loans) becoming
due hereunder shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365/366 days) equal to the Base
Rate plus the Applicable Margin.
(b) Eurodollar Loans. Subject to the provisions of Section 1.06, each
Eurodollar Loan shall bear interest at a rate per annum (computed on the basis
of the actual number of days elapsed over a year of 360 days) equal to the
Adjusted Eurodollar Rate plus the Applicable Margin. The Administrative Agent
shall determine the applicable Adjusted Eurodollar Rate for each such Loan as of
11:00 a.m., Charlotte, North Carolina time, or as soon as practicable
thereafter, on the date when such determination is to be made in respect of such
Interest Period and shall promptly notify the Borrower and the Banks of the
Adjusted Eurodollar Rate so determined.
(c) Swingline Loans. Subject to the provisions in Section 1.06, each
Swingline Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the Floating
LIBOR Rate plus the Applicable Margin.
(d) Interest Payment Date. Interest on each Loan shall be payable on
each applicable Interest Payment Date commencing with the first of such dates
after the date of such Loan, and on each Conversion Date and the Commitment
Termination Date.
SECTION 1.05.00 Fees; Termination and Reduction of Commitments.
(a) Commitment Fee. In consideration of the Commitments hereunder, the
Borrower shall pay in immediately available funds to the Administrative Agent,
for the pro rata account of each Bank, on the last Business Day of each calendar
quarter, commencing with the first such date after the date hereof, and within
five (5) Business Days of the date of any reduction or termination of the
Commitments of the Banks hereunder, a commitment fee (hereinafter called the
"Commitment Fee") in an amount equal to the Applicable Commitment Fee Percentage
times the daily average amount of the unused portion of the Commitment during
the period or quarter then ending (computed on the basis of the actual number of
days over a year of 360 days). The Commitment Fee shall commence to accrue as of
the date hereof, and shall cease to accrue on the Commitment Termination Date.
For purposes of calculating the Commitment Fee, Swingline
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Loans shall not be considered outstanding for purposes of determining the unused
portion of the Commitment.
(b) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent the additional fees in the amounts and on the dates agreed
to in the Administrative Agent's Fee Letter.
(c) Letter of Credit Fees.
(i) The Borrower shall pay to the Administrative Agent, for
the pro rata account of each Bank, Letter of Credit fees in an amount
equal to the rate per annum equal to the Applicable Margin on
Eurodollar Loans times the average daily aggregate stated amount of all
Letters of Credit outstanding during the term of this Agreement. Such
fees shall be payable to the Administrative Agent for the pro rata
account of the Banks in arrears on the last Business Day of each
calendar quarter and shall be calculated according to the average daily
stated amount of Letters of Credit outstanding during such quarter and
shall be calculated based on a year of 360 days and the actual number
of days elapsed.
(ii) The Borrower agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, the standard fees and charges of
the Issuing Bank for issuing, administering, amending, renewing, paying
and canceling letters of credit, as and when assessed, including,
without limitation, a fronting fee at a rate equal to 1/8 of 1% per
annum based on the aggregate stated amount of Letters of Credit issued
by the Issuing Bank, which shall be due and payable upon issuance of
each Letter of Credit.
(d) Mandatory Commitment Reductions. The aggregate amount of the
Commitments shall permanently reduce upon the occurrence of each of the
following events and in the following amounts:
(i) upon the sale by any Group Member of any assets (including
Capital Securities owned by such Group Members) by an amount equal to
100% of the Net Cash Proceeds of such sales, provided that such
reduction shall not be required with respect to (A) sales of assets in
the ordinary course of business or the disposition of obsolete assets
or assets no longer useful to the businesses of any Group Member, (B)
the sale of any Capital Securities or assets of EPIK, (C) other sales
of assets in an aggregate amount not to exceed $10,000,000 in any
fiscal year provided that the proceeds of such sale are reinvested in
the business of the Borrower Group and (D) dispositions permitted by
Section 6.03(w);
(ii) upon the issuance by any Group Member of Debt, by an
amount equal to 100% of the Net Cash Proceeds of such issuance,
provided that such reduction shall not be required with respect to (A)
Non-recourse Debt issued by Flagler or (B) Debt permitted under Section
6.02(c); and
(iii) upon the issuance by any Group Member of Capital
Securities, by an amount equal to 100% of the Net Cash Proceeds from
such issuance, provided that such reduction
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shall not be required with respect to (A) the issuance or exercise of
stock or other equity options to management or other employees of a
Group Member or EPIK as employee benefits and (B) the issuance of
Capital Securities of EPIK.
(e) Optional Commitment Reductions. The Borrower may, by written notice
to the Administrative Agent (as provided in Section 1.17) irrevocably terminate
in full, or from time to time permanently reduce in part, the unutilized portion
of the aggregate Commitments. Each such voluntary partial reduction of the
unutilized portion of the aggregate Commitments shall only be permitted with
respect to amounts in excess of any outstanding Swingline Loans and the
aggregate stated amount of Letters of Credit outstanding and shall be in an
aggregate principal amount of $5,000,000 and in integral multiples of $1,000,000
in excess thereof.
(f) Pro Rata Treatment. Each reduction in the aggregate Commitments
shall be made ratably among the Banks in accordance with each Bank's Percentage.
Once reduced, the Commitments cannot be reinstated without the unanimous consent
of the Banks.
SECTION 1.06.00 Additional Interest; Alternate Rate of Interest;
Maximum Interest Rate.
(a) Upon the occurrence and during the continuation of an Event of
Default, the outstanding principal balance of the Loans and all other amounts
becoming due hereunder, shall accrue interest at a rate per annum equal to 2%
above the rate that would otherwise be payable under Section 1.04.
(b) If the Administrative Agent determines that by reason of
circumstances affecting the relevant market adequate and reasonable means do not
exist for ascertaining the Adjusted Eurodollar Rate, or if the Majority Banks
determine and notify the Administrative Agent that the rate at which such dollar
deposits are being offered will not adequately and fairly reflect the cost to
the Banks of making or maintaining the principal amount of such requested
Eurodollar Loan during such Interest Period, the Administrative Agent shall, as
soon as practicable thereafter, give written or telephonic notice of such
determination to the Borrower and the Banks. After such notice has been given
and until the circumstances giving rise to such notice no longer exist, each
request for a Eurodollar Loan or for conversion to or maintenance of a
Eurodollar Loan shall be deemed to be a request for a Base Rate Loan. Each
determination by the Administrative Agent and the Majority Banks hereunder shall
be conclusive absent manifest error.
(c) Nothing contained in this Agreement or any Note shall require the
Borrower at any time to pay interest at a rate on any Loan exceeding the Maximum
Permitted Rate. If interest payable to any Bank on any Loan on any date would
exceed the maximum amount permitted by the Maximum Permitted Rate, such interest
payment shall automatically be reduced to such maximum permitted amounts, and,
to the extent lawful, the interest that would have been payable in respect of
such Loan but was not payable as a result of the operation of this Section shall
be cumulated and the interest payable to such Bank in respect of other Loans or
periods shall be increased (but not above the Maximum Permitted Rate therefor)
until such cumulated amount, together with interest thereon at the Federal Funds
Rate to the date of repayment, shall have been received by such Bank.
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SECTION 1.07.00 Continuation and Conversion of Revolving Loans.
Subject to Sections 1.06(b), 1.11 and 1.12, the Borrower may, by
written notice to the Administrative Agent (as provided in Section 1.17) at any
time, continue any Eurodollar Loan or portion thereof into a subsequent Interest
Period and convert any Revolving Loan or portion thereof into a Revolving Loan
of a different type, subject in each case to the following:
(a) no Default (except in the case of conversion to Base Rate Loans)
shall have occurred and be continuing at the time of such notice or such
continuation or conversion;
(b) on and as of the date of such continuation or conversion, each
representation and warranty set forth in Article IV shall be true and correct in
all material respects, as determined by the Administrative Agent, it being
understood that the representations and warranties set forth in Sections 4.04
and 4.05 shall be deemed to apply to the most recent financial statements
furnished pursuant to the terms hereof by the Borrower to the Banks prior to
such Loan;
(c) the notice given to the Administrative Agent by the Borrower shall
specify the Loans (identified by reference to the aggregate amount of such Loans
by all of the Banks) to be continued or converted;
(d) such continuation or conversion shall be made pro rata among the
Banks in accordance with their respective Percentages;
(e) in the case of a continuation or conversion of less than all
Revolving Loans, the aggregate principal amount continued or converted shall not
be less than $5,000,000 and in integral multiples of $1,000,000 in excess
thereof;
(f) no Loan may be continued or converted to a Eurodollar Loan having
an Interest Period that would extend beyond the scheduled Commitment Termination
Date;
(g) a Eurodollar Loan may be converted to another type of Loan only on
the last day of the current Interest Period;
(h) the Conversion Date must be a Business Day with respect to the new
Loan;
(i) no Loan (or portion thereof) may be converted to a Eurodollar Loan
if, after such conversion, and after giving effect to any prepayment of Loans,
an aggregate of more than five (5) separate Eurodollar Loans of any Bank would
be outstanding hereunder, it being understood that for such purposes Loans
having different Interest Periods, regardless of whether they commence or end on
the same date, shall be considered separate Loans;
(j) each request for continuation of or conversion into a Eurodollar
Loan that fails to state an applicable Interest Period shall be deemed to be a
request for an Interest Period of one-month duration;
(k) in the event that the Borrower fails to give notice to continue any
Eurodollar Loan into a subsequent Interest Period or convert any such Loan into
a Loan of another type, such
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Loan (unless repaid in full) shall automatically become a Base Rate Loan at the
expiration of the then current Interest Period; and
(l) each continuation or conversion shall be effected by each Bank as
if the proceeds of the new Loan were applied to payment of the Loan (or portion
thereof) being continued or converted, and accrued interest on the Loan (or
portion thereof) being continued or converted shall be paid by the Borrower on
and as of the Conversion Date.
SECTION 1.08.00 Optional Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time
to prepay any Base Rate Loan in whole or in part, without premium or penalty,
upon prior written notice to the Administrative Agent; provided, however, that
each such partial prepayment of Revolving Loans shall be in the principal amount
of at least $2,500,000 and in integral multiples of $500,000 in excess thereof.
(b) The Borrower shall have the right to prepay any Eurodollar Loan, in
whole or in part, upon prior written notice to the Administrative Agent (as
provided in Section 1.17); provided, however, that each such partial prepayment
shall be in the principal amount of at least $5,000,000 and in integral
multiples of $1,000,000 in excess thereof. If the Borrower prepays any
Eurodollar Loan except on the last day of the Interest Period in effect for such
Loan, then the Borrower shall make the payments required by Section 1.13.
Otherwise, there shall be no prepayment premium or penalty.
(c) Each notice of prepayment shall specify which Loan(s) is to be
prepaid, the prepayment date and the principal amount of each Loan to be
prepaid. All prepayments under this Section shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment.
Amounts of Loans prepaid pursuant to this Section prior to the Commitment
Termination Date shall be available to be reborrowed from the Banks hereunder in
accordance with the terms hereof.
SECTION 1.09.00 Mandatory Payments.
The Borrower shall repay the Revolving Loans upon reduction of the
Commitments pursuant to Section 1.05 in an amount sufficient to reduce the
outstanding principal balance of the Revolving Loans to an amount not greater
than the aggregate reduced Commitments less the aggregate principal amount of
Swingline Loans outstanding less the aggregate stated amount of Letters of
Credit outstanding. All repayments under this Section shall be accompanied by
accrued interest on the principal amount being repaid to the date of repayment.
SECTION 1.10.00 Manner of Payment.
(a) All principal, interest and other amounts to be paid by the
Borrower under this Agreement and the other Loan Documents shall be made to the
Administrative Agent, at its office in Charlotte, North Carolina at the address
provided herein, for the account of each Bank in Dollars and in federal or other
immediately available funds by 11:00 a.m., Charlotte, North Carolina time, on
the date on which such payment is due, in all cases without any deduction or
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withholdings whatsoever, including any deduction or withholding for any setoff,
recoupment, counterclaim or tax. Interest in respect of any Loan hereunder shall
accrue from and including the date of such Loan to but excluding the date on
which such Loan is paid in full. If such payments are not received by the
Administrative Agent within five (5) Business Days after the due date thereof,
such payments may be deducted by the Banks in accordance with Section 10.17, it
being understood that the Banks' rights under Section 10.17 are in addition to
all other rights the Banks' may have hereunder (including the ability to call an
Event of Default pursuant to Section 8.01(a) immediately upon such non-payment).
(b) Except with respect to payments of principal, interest and other
amounts on Swingline Loans and reimbursements for advances in respect of Letters
of Credit, all payments received by the Administrative Agent shall be remitted
to the Banks on the Business Day on which such payments are received or deemed
to be received by the Administrative Agent. With respect to payments of
principal, interest and other amounts on Swingline Loans and reimbursements for
advances in respect of Letters of Credit, all payments received by the
Administrative Agent shall be remitted to the Swingline Bank on the Business Day
on which such payments are received or deemed to be received by the
Administrative Agent.
SECTION 1.11.00 Increased Cost and Reduced Return.
(a) If after the date hereof, the adoption of any applicable law, rule
or regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
Governmental Authority:
(i) shall subject such Bank (or its Applicable Lending Office)
to any Tax with respect to any Eurodollar Loans, its Note, or its
obligation to make Eurodollar Loans, or change the basis of taxation of
any amounts payable to such Bank (or its Applicable Lending Office)
under this Agreement or its Note in respect of any Eurodollar Loans
(other than taxes imposed on the overall net income of such Bank by the
jurisdiction in which such Bank has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Bank (or its Applicable Lending Office), including the Commitment of
such Bank hereunder; or
(iii) shall impose on such Bank (or its Applicable Lending
Office) or the London interbank market any other condition affecting
this Agreement or its Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making, converting into, continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Bank (or its Applicable Lending Office) under
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this Agreement or its Note with respect to any Eurodollar Loans, then the
Borrower shall pay to such Bank on demand such amount or amounts as will
compensate such Bank for such increased cost or reduction. If any Bank requests
compensation by the Borrower under this Section 1.11, the Borrower may, by
notice to such Bank (with a copy to the Administrative Agent), suspend the
obligation of such Bank to make or continue Loans of the type with respect to
which such compensation is requested, or to convert Loans of any other type into
Loans of such type, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 1.07 shall be
applicable); provided that such suspension shall not affect the right of the
Bank to receive the compensation so requested.
(b) If, after the date hereof, any Bank shall have determined that the
adoption of any applicable, law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, has or would have
the effect of reducing the rate of return on the capital of such Bank or any
corporation controlling such Bank as a consequence of such Bank's obligations
hereunder to a level below that which such Bank or corporation could have
achieved but for such adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy), then from time to
time upon demand the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction.
(c) Any Bank claiming compensation under this Section 1.11 shall
furnish to the Borrower and the Administrative Agent a statement setting forth
the additional amount or amounts to be paid to it hereunder and the calculation
and the basis therefor and shall be conclusive in the absence of manifest error.
In determining such amount, such Bank may use any reasonable averaging and
attribution methods.
SECTION 1.12.00 Illegality.
Notwithstanding any provision in this Agreement to the contrary, if any
Regulatory Change shall make it unlawful for a Bank to make or maintain a
Eurodollar Loan or to give effect to its obligations as contemplated hereby with
respect to a Eurodollar Loan, then, by written notice to the Borrower and the
Administrative Agent, such Bank may:
(a) declare that Eurodollar Loans will not thereafter be made by such
Bank hereunder, whereupon the Borrower shall be prohibited from requesting
Eurodollar Loans from such Bank hereunder unless such declaration is
subsequently withdrawn; and
(b) to the extent that maintenance of any Eurodollar Loan has been made
unlawful, require that all outstanding Eurodollar Loans made by it be converted
to Base Rate Loans, whereupon all of such Eurodollar Loans shall be
automatically converted to Base Rate Loans upon receipt by the Borrower of such
notice and the Borrower shall make the payments, if any, required by Section
1.13.
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SECTION 1.13.00 Indemnity for Eurodollar Loans.
The Borrower shall reimburse each Bank on demand for any loss incurred
or to be incurred by it in the reemployment of the funds released by any
prepayment or conversion of any Eurodollar Loan required or permitted by any
other provision of this Agreement if such Loan is prepaid or converted other
than on the last day of the Interest Period for such Loan. Such loss shall be
the difference as determined by such Bank between (a) the amount that would have
been realized by such Bank for the remainder of such Interest Period for such
Loan and (b) any lesser amount that would be realized by such Bank in
reemploying such funds by purchasing on the date of prepayment or conversion a
U.S. Treasury security in the principal amount prepaid or converted that matures
on the last day of the Interest Period of the Loan being prepaid or converted.
Without duplication of the foregoing indemnity payments, the Borrower shall
indemnify each Bank against any actual loss or expense that such Bank may
sustain or incur as a consequence of any default in payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued thereon, as
and when due and payable (at the due date thereof, by notice of prepayment or
otherwise), or the occurrence of any Event of Default, including but not limited
to any loss or expense sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any part
thereof. Each Bank demanding indemnification under this Section 1.13 shall
provide to the Borrower a statement, signed by an officer of such Bank,
explaining the amount of any such loss or expense, which statement shall, in the
absence of manifest error, be conclusive with respect to the parties hereto.
SECTION 1.14.00 Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Taxes; provided, that if the Borrower shall be required to deduct any Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, any Bank,
the Swingline Bank or the Issuing Bank (as the case may be) shall receive an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) The Borrower shall indemnify the Administrative Agent, each Bank,
the Swingline Bank and the Issuing Bank, within five (5) Business Days after
written demand therefor, for the full amount of any Taxes paid by the
Administrative Agent, such Bank, the Swingline Bank or the Issuing Bank, as the
case may be, on or with respect to any payment by or on account of any
obligation of the Borrower hereunder (including Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Bank, the Swingline Bank or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Bank,
the Swingline Bank or the Issuing Bank, shall be conclusive absent manifest
error.
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(c) As soon as practicable after any payment of Taxes by the Borrower
to a Governmental Authority, the Borrower shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(d) Any Foreign Bank that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Bank agrees that it will deliver to the Administrative
Agent and the Borrower (or in the case of a participant, to the Bank from which
the related participation shall have been purchased) two (2) duly completed
copies of Internal Revenue Service Form W-8BEN or any successor thereto
(relating to such Person and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Person by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Person by the Borrower pursuant to
this Agreement), as the case may be, or such other evidence satisfactory to the
Borrower and the Administrative Agent that such Person is entitled to an
exemption from, or reduction of, U.S. withholding tax. Each such Foreign Bank
shall deliver to the Borrower and the Administrative Agent such forms on or
before the date that it becomes a party to this Agreement (or in the case of a
participant, on or before the date such participant purchases the related
participation). In addition, each such Bank shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
Bank. Each such Bank shall promptly notify the Borrower and the Administrative
Agent at any time that it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
SECTION 1.15.00 Bank's Duty to Mitigate.
(a) Each Bank agrees that, as promptly as practicable after it becomes
aware of an event or existence of a condition which would cause it to be
affected under Section 1.11 or 1.12, it will use all commercially reasonable
efforts to make, fund or maintain its Loans through a different Applicable
Lending Office, if as a result the effect of such event or condition on the
Borrower under Section 1.11 or 1.12 would be materially reduced and will not, in
the judgment of the Bank, be otherwise disadvantageous to it. If any Bank makes,
funds or maintains its Loans through a different Applicable Lending Office, it
shall, as between the Borrower and such Bank, be treated as if the Bank made the
Loan and the Borrower and the Bank continue to be debtor and creditor with
respect to such Loan. Such arrangement shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of the applicable Note.
(b) If any Bank requests compensation under Section 1.11, or if the
Borrower is required to pay any additional amount to any Bank or any
Governmental Authority on the account of any Bank pursuant to Section 1.14, then
the Borrower may, at its sole expense and effort, upon
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notice to such Bank and the Administrative Agent, require such Bank to assign
and delegate, without recourse (in accordance with and subject to the
restrictions set forth in Section 10.12) all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Bank); provided, that (i) such Bank
shall have received payment of an amount equal to the outstanding principal
amount of all Loans owed to it, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, from the assignee (in the case of such
outstanding principal and accrued interest) and from the Borrower (in the case
of all other amounts) and (ii) in the case of a claim for compensation under
Section 1.11 or payments required to be made pursuant to Section 1.14, such
assignment will not result in a reduction in such compensation or payments. A
Bank shall not be required to make any such assignment and delegation if , prior
thereto, as a result of a waiver by such Bank or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 1.16.00 Pro Rata Treatment.
Except with respect to Swingline Loans and except as otherwise provided
in Sections 1.11, 1.12, 1.13, 1.14, 1.19 and 1.20, all payments and prepayments
of principal and interest in respect of the Loans, all payments of Commitment
Fees and all borrowings hereunder shall be made pro rata among the Banks in
accordance with their respective Percentages.
SECTION 1.17.00 Certain Notices.
(a) Notices (which may be in writing or by telecopy, telex or
telegraph, or by telephone, if immediately confirmed in writing, substantially
in the form attached hereto as Exhibit I) (a "Notice of Borrowing") by the
Borrower to the Administrative Agent of any terminations or reductions of the
Commitments, of borrowings and prepayments of Loans, of the type of Loans and of
the duration of Interest Periods shall be irrevocable and shall be effective
only if received by the Administrative Agent not later than 11:00 a.m.
Charlotte, North Carolina time on the number of Business Days prior to the date
of the relevant termination, reduction, borrowing, or prepayment or the first
day of such Interest Period specified below (it being understood that notices
received by the Administrative Agent after 11:00 a.m. Charlotte, North Carolina
time shall be considered timely received on the next Business Day):
NUMBER OF BUSINESS
NOTICE DAYS PRIOR
------ ------------------
Voluntary termination or reduction of 2
Commitment
Borrowing or prepayment of Base Rate Loans 1
Borrowing or prepayment of, or notification of 3
duration of Interest Period for, Eurodollar
Loans
Borrowing of Swingline Loans 0
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Issuance of Letter of Credit 3
Each such notice of termination or reduction shall specify the amount of the
Commitment to be terminated or reduced. Each such notice of borrowing or
prepayment shall specify the Loans to be borrowed or prepaid and the amount and
type of the Loans to be borrowed or prepaid and the date of borrowing or
prepayment (which shall be a Business Day). Each such notice of the duration of
an Interest Period shall specify the Loans to which such Interest Period is to
relate. In the event that the Borrower fails to select within the time period
and otherwise as provided in this Section 1.17 the type of Loan or the duration
of the Interest Period for any Eurodollar Loan, such Loan shall be automatically
converted into a Base Rate Loan on the last day of the then current Interest
Period for such Loan or will remain as, or will be made as, a Base Rate Loan.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank by telephone, telex, or telecopy of the contents
thereof, the amount of such Bank's portion of such Revolving Loan and the
applicable interest rate. In the case of a Notice of Borrowing for a Base Rate
Loan which is received by the Administrative Agent prior to 11:00 a.m.,
Charlotte, North Carolina time, the Administrative Agent shall provide such
notice to each Bank not later than 12:00 p.m., Charlotte, North Carolina time on
the day on which such notice is received. In the case of any other Notice of
Borrowing which is received by the Administrative Agent prior to 12:00 p.m.,
Charlotte, North Carolina time, the Administrative Agent shall provide such
notice not later than 1:00 p.m., Charlotte, North Carolina time, on the day on
which such notice is received. Subject to the satisfaction of all conditions
precedent thereto as set forth herein, each Bank shall, not later than 2:00
p.m., Charlotte, North Carolina time, on the date specified in the Notice of
Borrowing, deposit to the Administrative Agent's Account, in federal or other
immediately available funds, such Bank's Percentage of such Revolving Loan.
Unless the Administrative Agent shall have received prior notice from a Bank (by
telephone or otherwise, such notice to be promptly confirmed by telex, telecopy
or other writing) that such Bank will not make available such Bank's Percentage
of such Revolving Loan, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on the date of such
Revolving Loan in accordance with this Section, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent such Bank shall not have made
such amount available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand (but
without duplication) such amount together with interest thereon for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent (i) with respect to the Borrower,
at the interest rate applicable at the time the type of Revolving Loan is
chosen, or (ii) with respect to the Bank, at the Federal Funds Rate. Such
payment by the Borrower, however, shall be without prejudice to its rights
against such Bank. If such Bank shall repay to the Administrative Agent such
amount together with interest, such amount so repaid shall constitute such
Bank's Revolving Loan for purposes of this Agreement, which Revolving Loan shall
be deemed to have been made by such Bank on the borrowing date applicable
thereto, but without prejudice to the Borrower's rights against such Bank.
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SECTION 1.18.00 Extension of Commitment Termination Date.
(a) The Borrower may request an extension of the initial Commitment
Termination Date, or if previously extended, the then-applicable Commitment
Termination Date, for an additional twelve (12) month period in the case of each
such extension by delivering an irrevocable written notice to the Administrative
Agent, accompanied by projections prepared by the Borrower with respect to such
extension period containing such information as may be reasonably requested by
the Administrative Agent (which notice, together with such projections, shall
promptly be forwarded by the Administrative Agent to the Banks), not more than
one hundred twenty (120) nor less than ninety (90) days prior to the first and
second anniversaries of the Closing Date (any such request, an "Extension
Request"). Upon receipt of such Extension Request, each Bank shall respond to
the Borrower and the Administrative Agent in writing no later than sixty (60)
days prior to such anniversary of the Closing Date, either irrevocably
consenting to such Extension Request or declining to extend such Bank's
Commitment. Any determination by any Bank to consent to an extension of the
Commitment Termination Date shall be in its sole and absolute discretion and,
subject to receipt by the Borrower and the Administrative Agent of such consent,
there shall be no obligation on the part of any Bank hereunder, whether express
or implied, to extend the Commitment Termination Date. Any Bank which fails to
respond by the date set forth above shall be deemed to have declined the
Extension Request. Upon receipt of the written consent to such Extension Request
by the Borrower and the Administrative Agent from Banks holding 100% of the
aggregate Commitments, the Administrative Agent shall notify the Borrower and
the Banks that the Commitment Termination Date has been extended for an
additional twelve (12) month period.
(b) In the event any Bank shall fail to consent to an Extension Request
within the time provided in paragraph (a) above (each such Bank, a
"Non-Extending Bank"), the Borrower may obtain one or more other Banks or, with
the consent of the Administrative Agent, one or more other purchasing Banks
willing to replace such Non-Extending Bank (each such purchasing Bank, a
"Replacement Bank"); provided that any replacement must occur on or prior to the
anniversary of the Closing Date that precedes the then-effective Commitment
Termination Date by one year. Any Non-Extending Bank that is being replaced
shall assign its Loans and its Commitment hereunder to the applicable
Replacement Bank upon not less than five (5) days' prior written notice from the
Borrower in accordance with the assignment procedure set forth in Section 10.12
hereof; provided that the Borrower shall pay the administrative fee for such
assignment to the Administrative Agent specified in Section 10.12. Upon receipt
of duly executed Commitment Transfer Supplements with respect to the Commitments
and outstanding Loans of each Non-Extending Bank and the satisfaction of the
conditions set forth therein and in Section 10.12, the Administrative Agent
shall notify the Borrower and the Banks that the Commitment Termination Date has
been extended for an additional twelve (12) month period.
(c) If the Borrower does not replace each Non-Extending Bank with one
or more Replacement Banks assuming all of the Loans and Commitments of such
Non-Extending Banks by the anniversary of the Closing Date that precedes the
then-Effective Commitment Termination Date by one year, the Commitment
Termination Date shall not be extended beyond its then-existing date unless the
Borrower, the Administrative Agent and each of the Banks (other than
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any Non-Extending Banks) shall otherwise agree; provided that the Non-Extending
Banks shall not be bound by any such agreement.
SECTION 1.19.00 Additional Provisions Relating to Swingline Loans.
The Swingline Bank may, at any time, in its sole discretion, by written notice
to the Borrower, the Administrative Agent and the Banks, demand repayment of its
Swingline Loans by way of a Revolving Loan advance, in which case the Borrower
shall be deemed to have requested a Base Rate Loan in the amount of such
Swingline Loans; provided, however, that any such demand shall be deemed to have
been given one (1) Business Day prior to the Commitment Termination Date and on
the date of the occurrence of any Event of Default described in Section 8.01 and
upon acceleration of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 8.02. Each Bank hereby irrevocably
agrees to make its advance of each such Revolving Loan in the amount, in the
manner and on the date specified in the preceding sentence notwithstanding (i)
the amount of such borrowing may not comply with the minimum amount for advances
of Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 3.02 are then unsatisfied, (iii) whether a Default or an
Event of Default then exists, (iv) failure of any such request or deemed request
for a Base Rate Loan to be made by the time otherwise required hereunder, (v)
whether the date of such borrowing is a date on which Base Rate Loans are
otherwise permitted to be made hereunder or (vi) any termination of the
Commitments relating thereto immediately prior to or contemporaneously with such
borrowing. In the event that any Revolving Loan cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any other Group Member), then each Bank hereby agrees that it shall
forthwith purchase (as of the date such borrowing could otherwise have occurred,
but adjusted for any payments received from the Borrower on or after such date
and prior to such purchase) from the Swingline Bank such participation interest
in the outstanding Swingline Loans as shall be necessary to cause each such Bank
to share in such Swingline Loans ratably based upon its Percentage, provided
that (a) all interest payable on the Swingline Loans shall be for the account of
the Swingline Bank until the date as of which the respective participation
interest is funded and (b) at the time any purchase of participation interests
pursuant to this sentence is actually made, the purchasing Bank shall be
required to pay to the Swingline Bank, to the extent not paid to the Swingline
Bank by the Borrower in accordance with the terms of Section 1.04, interest on
the principal amount of participation interests purchased for each day from and
including the day upon which such borrowing would otherwise have occurred to but
excluding the date of payment for such participation interests, at a per annum
rate equal to the Federal Funds Rate.
SECTION 1.20.00 Additional Provisions Relating to Letters of Credit.
(a) Reports. The Issuing Bank will provide to the Administrative Agent
and the Borrower at least monthly, and more frequently upon request, a detailed
summary report on the Letters of Credit and the activity thereon, in form and
substance acceptable to the Administrative Agent. In addition, the Issuing Bank
will provide to the Administrative Agent and the Borrower for dissemination to
the Banks at least quarterly, and more frequently upon request, a detailed
summary report on the Letters of Credit and the activity thereon, including,
among other things,
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the beneficiary, the face amount, and the expiry date. The Issuing Bank will
provide copies of the Letters of Credit to the Administrative Agent and the
Banks promptly upon request.
(b) Participation. Each Bank, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a risk participation from the
Issuing Bank in such Letter of Credit and the obligations arising thereunder, in
each case in an amount equal to its pro rata share of the obligations under such
Letter of Credit (based on the respective Percentages of the Banks) and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and be obligated to pay to the Issuing Bank therefor and discharge
when due, its pro rata share of the obligations arising under such Letter of
Credit. Without limiting the scope and nature of each Bank's participation in
any Letter of Credit, to the extent that the Issuing Bank has not been
reimbursed as required hereunder or under any such Letter of Credit, each Bank
shall pay to the Issuing Bank its pro rata share of such unreimbursed drawing in
same day funds on the day of notification by the Issuing Bank of an unreimbursed
drawing pursuant to the provisions of subsection (d) hereof. The obligation of
each Bank to so reimburse the Issuing Bank shall be absolute and unconditional
and shall not be affected by the occurrence of a Default, an Event of Default or
any other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the Issuing Bank
under any Letter of Credit, together with interest as provided herein.
(c) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Bank will promptly notify the Borrower. Unless the Borrower
shall immediately notify the Issuing Bank that the Borrower intends to otherwise
reimburse the Issuing Bank for such drawing, the Borrower shall be deemed to
have requested that the Banks make a Revolving Loan in the amount of the drawing
as provided in subsection (d) hereof on the related Letter of Credit, the
proceeds of which will be used to satisfy the related reimbursement obligations.
The Borrower promises to reimburse the Issuing Bank on the day of drawing under
any Letter of Credit (either with the proceeds of a Revolving Loan obtained
hereunder or otherwise) in same day funds. If the Borrower shall fail to
reimburse the Issuing Bank as provided hereinabove, the unreimbursed amount of
such drawing shall bear interest at a per annum rate equal to the Base Rate plus
two percent (2%). The Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment the Borrower may claim or have
against the Issuing Bank, the Administrative Agent, the Banks, the beneficiary
of the Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the Borrower to receive
consideration or the legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Bank will promptly notify the Administrative
Agent, who will in turn promptly notify the other Banks of the amount of any
unreimbursed drawing and each Bank shall promptly pay to the Administrative
Agent for the account of the Issuing Bank in U.S. Dollars and in immediately
available funds, the amount of such Bank's Percentage of such unreimbursed
drawing. Such payment shall be made on the day such notice is received by such
Bank from the Issuing Bank if such notice is received at or before 2:00 P.M.
Charlotte, North Carolina time otherwise such payment shall be made at or before
12:00 Noon Charlotte, North Carolina time on the Business Day next succeeding
the day such notice is received. If such Bank does not pay such amount to the
Issuing Bank in full upon such request, such Bank shall, on demand, pay to the
Administrative Agent for the account of the Issuing Bank interest on the unpaid
amount during the period from
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the date of such drawing until such Bank pays such amount to the Issuing Bank in
full at a rate per annum equal to, if paid within two (2) Business Days of the
date that such Bank is required to make payments of such amount pursuant to the
preceding sentence, the Federal Funds Rate, and thereafter at a rate equal to
the Base Rate. Each Bank's obligation to make such payment to the Issuing Bank,
and the right of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and without
regard to the termination of this Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Bank to the Issuing Bank, such Bank shall,
automatically and without any further action on the part of the Issuing Bank or
such Bank, acquire a participation in an amount equal to such payment (excluding
the portion of such payment constituting interest owing to the Issuing Bank) in
the related unreimbursed drawing portion of the LOC Obligation and in the
interest thereon and in the related LOC Documents, and shall have a claim
against the Borrower with respect thereto.
(d) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan to
reimburse a drawing under a Letter of Credit, the Administrative Agent shall
give notice to the Banks that a Revolving Loan has been requested or deemed
requested by the Borrower to be made in connection with a drawing under a Letter
of Credit, in which case a Revolving Loan comprised of Base Rate Loans shall be
immediately made to the Borrower by all Banks (notwithstanding any termination
of the Commitments pursuant to Section 8.02) pro rata based on the respective
Percentages of the Banks (determined before giving effect to any termination of
the Commitments pursuant to Section 8.02) and the proceeds thereof shall be made
directly to the Issuing Bank for application to the respective LOC Obligations.
Each such Bank hereby irrevocably agrees to make its pro rata share for each
such Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 3.02 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure for any such
request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each such Bank hereby agrees
that it shall forthwith purchase (as of the date such borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the Issuing Bank such
participation in the outstanding LOC Obligations as shall be necessary to cause
each such Bank to share in such LOC Obligations ratably based upon the
respective Percentages of the Banks (determined before giving effect to any
termination of the Commitments pursuant to Section 8.02), provided that in the
event such payment is not made on the day of drawing, such Bank shall pay in
addition to the Issuing Bank interest on the amount of its
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unfunded participation interest at a rate equal to, if paid within two (2)
Business Days of the date of drawing, the Federal Funds Rate, and thereafter at
the Base Rate.
(e) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(f) Uniform Customs and Practices. The Issuing Bank may have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits (the "UCP") or the International Standby Practices 1998 (the "ISP98"),
in either case as published as of the date of issue by the International Chamber
of Commerce, in which case the UCP or the ISP98, as applicable, may be
incorporated therein and deemed in all respects to be a part thereof.
(g) Indemnification; Nature of Issuing Bank's Duties.
(i) In addition to its other obligations under this Section
1.20, the Borrower hereby agrees to protect, indemnify, pay and save
the Issuing Bank harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that the Issuing Bank may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of
any Letter of Credit or (B) the failure of the Issuing Bank to honor a
drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions,
herein called "Government Acts").
(ii) As between the Borrower and the Issuing Bank, the
Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing Bank shall not
be responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of the Issuing
Bank, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the Issuing
Bank's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Bank, under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good faith,
shall not put such Issuing Bank under any resulting liability to the
Borrower. It is
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the intention of the parties that this Agreement shall be construed and
applied to protect and indemnify the Issuing Bank against any and all
risks involved in the issuance of the Letters of Credit, all of which
risks are hereby assumed by the Borrower, including, without
limitation, any and all Government Acts. The Issuing Bank shall not, in
any way, be liable for any failure by the Issuing Bank or anyone else
to pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Issuing
Bank.
(iv) Nothing in this subsection (g) (except as provided in
clause (v) below), is intended to limit the reimbursement obligations
of the Borrower contained in subsection (d) above. The obligations of
the Borrower under this subsection (g) shall survive the termination of
this Agreement. No act or omission of any current or prior beneficiary
of a Letter of Credit shall in any way affect or impair the rights of
the Issuing Bank to enforce any right, power or benefit under this
Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (g), the Borrower shall have no obligation to indemnify the
Issuing Bank in respect of any liability incurred by the Issuing Bank
(A) arising solely out of the negligence or willful misconduct of the
Issuing Bank, as determined by a court of competent jurisdiction, or
(B) caused by the Issuing Bank's failure to pay under any Letter of
Credit after presentation to it of a request strictly complying with
the terms and conditions of such Letter of Credit, as determined by a
court of competent jurisdiction, unless such payment is prohibited by
any law, regulation, court order or decree.
(h) Responsibility of Issuing Bank. It is expressly understood and
agreed that the obligations of the Issuing Bank hereunder to the Banks are only
those expressly set forth in this Agreement and that the Issuing Bank shall be
entitled to assume the conditions precedent set forth in Section 3.02 have been
satisfied unless it shall have acquired actual knowledge that any such condition
precedent has not been satisfied; provided, however, that nothing set forth in
this Section 1.20 shall be deemed to prejudice the right of any Bank to recover
from the Issuing Bank any amounts made available by such Bank to the Issuing
Bank pursuant to this Section 1.20 in the event that it is determined by a court
of competent jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of the Issuing
Bank.
(i) Conflict with LOC Documents. In the event of any conflict between
this Agreement and any LOC Document (including any letter of credit
application), this Agreement shall control.
ARTICLE II
COLLATERAL AND GUARANTIES
SECTION 2.01. 00 Collateral.
The Loan and all other Obligations shall be:
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(a) secured by a first priority, perfected security interest in all of
the issued and outstanding Capital Securities of FECR (the "Collateral")
pursuant to a Pledge Agreement substantially in the form attached hereto as
Exhibit C. Notwithstanding the foregoing, such pledge shall be released on the
later of (i) the second anniversary of the Closing Date and (ii) the last day of
the second consecutive quarter in which the Leverage Ratio has been less than
2.25x, provided, however, that if the Leverage Ratio is greater than or equal to
2.25x at any time after such pledge has been released, the Borrower shall
re-pledge the Collateral to the Banks and take all actions necessary to effect
such pledge; and
(b) subject to a negative pledge pursuant to Section 6.01 below.
SECTION 2.02.00 Guaranty.
Payment of the Obligations shall be unconditionally guaranteed, jointly
and severally, by each Group Member (other than the Borrower) pursuant to, and
as more specifically set forth in, a guaranty agreement substantially in the
form of Exhibit D hereto (the "Guaranty Agreement").
SECTION 2.03.00 Loan Documents.
The Borrower agrees to execute and deliver, or cause to be executed and
delivered, all Loan Documents and other instruments, in form and substance
satisfactory to the Administrative Agent and its counsel, reasonably necessary
or desirable, in the opinion of such counsel, to evidence the Loans and the
guaranties thereof, at such time or times as the Administrative Agent requests.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01.00 Initial Loans.
In addition to the conditions precedent in Section 3.02, the
obligations of the Banks to make initial Loans under this Agreement on or after
the Closing Date hereunder are subject to the following conditions precedent:
(a) Satisfaction of each of the conditions set forth on Exhibit E
hereto, the satisfaction of which shall be determined by the Banks and the
Administrative Agent in their sole discretion.
(b) All legal matters incident to this Agreement and the Loans shall be
reasonably satisfactory to Hunton & ▇▇▇▇▇▇▇▇, special counsel for the
Administrative Agent.
SECTION 3.02.00 All Loans.
As conditions to each Loan to be made hereunder:
(a) The Administrative Agent or Swingline Bank, as the case may be,
shall have received a notice of such Loan as required by Section 1.02.
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(b) On and as of the date of such Loan, both before and after giving
effect to such Loan and applying the proceeds thereof:
(i) each representation and warranty set forth in Article IV
shall be true and correct in all material respects, as determined by
the Administrative Agent, it being understood that the representations
and warranties set forth in Sections 4.04 and 4.05 shall be deemed to
apply to the most recent financial statements furnished pursuant to the
terms hereof by the Borrower to the Banks prior to such Loan and that
the representations and warranties shall be deemed to be updated by any
disclosures made to the Administrative Agent and the Banks after the
Closing Date that the Majority Banks have expressly consented to for
purposes of this Section 3.02(b)(i); and
(ii) the Borrower shall be in compliance with all the terms
and provisions of this Agreement on its part to be observed or
performed, and no Default shall have occurred and be continuing.
(c) Such Loan will not contravene any Legal Requirement applicable to
the Administrative Agent or any Bank.
The Borrower shall be deemed to make representations and warranties on the date
of each Loan as to the matters specified in paragraph (b) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Banks to enter into this
Agreement and to make Loans hereunder, the Borrower (as to itself and the other
Group Members) represents and warrants to the Administrative Agent and to each
of the Banks that:
SECTION 4.01.00 Organization; Powers; Qualification.
The Borrower (a) is a corporation duly organized, validly existing and
in good standing under the laws of Florida, (b) has the power and authority to
own its properties and to carry on its businesses as now conducted, (c) is
qualified to do business in the jurisdictions indicated on Schedule 4.01, (d) is
not required to be qualified in any other jurisdiction where the failure to be
so qualified would have a Material Adverse Effect, and (e) has the power to
execute, deliver and perform its obligations under this Agreement, to borrow
hereunder and to execute and deliver the Notes and the other Loan Documents and
to perform its obligations thereunder.
SECTION 4.02.00 Authorization; Enforceability.
The execution, delivery and performance of this Agreement, the
borrowings hereunder, the execution, delivery and performance of the Notes and
the other Loan Documents and the transactions contemplated hereby and thereby
(a) have been duly authorized by all requisite action on the part of the
Borrower and the other Group Members and (b) will not (i) violate (A) any
provision of law, the Organizational Documents of the Borrower or any other
Group Member or
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(B) any applicable order of any Governmental Authority, (ii) violate, conflict
with, breach or constitute (with due notice or lapse of time or both) a default
under any indenture, agreement for borrowed money, bond, note, instrument or
other agreement to which the Borrower or any other Group Member is a party or by
which the Borrower or any other Group Member or any of their respective property
is bound or (iii) except for the Permitted Liens, result in the creation or
imposition of any Lien of any nature whatsoever upon any property or assets of
the Borrower or any other Group Member. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and the Notes and the other Loan
Documents to which the Borrower or any other Group Member is a party when
executed and delivered will constitute, legal, valid and binding obligations of
the Borrower and such Group Members, as applicable, enforceable against such
parties in accordance with their respective terms, except as may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and (b) general principles of equity
(whether considered in a proceeding in at law or in equity).
SECTION 4.03.00 Consents and Approvals.
No action, consent or approval of, or registration or filing with, or
any other action by the STB, the FRA, the Securities and Exchange Commission or
any other Governmental Authority or of stockholders of any Group Member is
required to effect (a) the execution, delivery and performance by the Borrower
of this Agreement, the borrowings hereunder or the execution, delivery and
performance of the Notes or any other Loan Document to which it is a party or
(b) the execution, delivery and performance by each Group Member of each Loan
Document to which it is a party.
SECTION 4.04.00 Financial Statements.
(a) The Borrower has heretofore furnished the following financial
statements relating to the operations of the Consolidated Group prior to the
Closing Date to each of the Banks: (i) the audited consolidated balance sheet of
the Consolidated Group as of December 31, 1999, and the related consolidated
statements of income, retained earnings and cash flows of the Consolidated Group
for the fiscal year then ended, certified by KPMG LLP, independent public
accountants, and (ii) the unaudited consolidated balance sheet of the
Consolidated Group as of December 31, 2000, and the related consolidating
statements of income, retained earnings and cash flows of the Consolidated Group
for the fiscal year then ended, duly certified by the chief financial officer of
the Borrower. Such financial statements fairly present the consolidated and
consolidating financial condition of the Consolidated Group as of the dates
thereof and the consolidated and consolidating results of the operations of the
Consolidated Group for the periods covered thereby and are complete and correct
in all material respects. All such financial statements were prepared in
accordance with Generally Accepted Accounting Principles applied on a consistent
basis (subject, in the case of such interim statements, to the omission of
footnotes and normal year-end audit adjustments).
(b) The Borrower has heretofore furnished the following pro forma
financial statements and projections relating to the operations of the Borrower
Group after the Closing Date to each of the Banks: (i) the pro forma balance
sheet of the Borrower Group dated as of December 31,
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2000, and (ii) the pro forma cash flow projections of the Borrower Group for the
fiscal years ending in December 2001 through December 2004, copies of which are
attached to the Certificate Regarding Solvency being delivered on the Closing
Date. Such pro forma balance sheet shows in all material respects the projected
assets and liabilities of and shareholders equity in the Borrower Group
immediately upon giving effect to the transactions contemplated by the EPIK
Capitalization Plan and the making of the initial Loans hereunder. Immediately
after the consummation of the transactions contemplated by the EPIK
Capitalization Plan and this Agreement, the fair market value of the properties
and assets of the Borrower Group will not, in the aggregate, be materially less
than the amounts reflected on such pro forma opening balance sheet. The pro
forma cash flow statements are a reasonable projection of the cash flows of the
Borrower Group, in each case after giving effect to the transactions
contemplated by the EPIK Capitalization Plan and this Agreement. Such pro forma
balance sheet and pro forma cash flow projections are based on information
available to the Borrower, which includes without limitation the financial
information described in Section 4.04(a), historical financial statements and
records of the Borrower, and the assumptions described in the notes accompanying
such pro forma financial statements, all of which are reasonable.
(c) The financial statements, if any, that the Borrower has most
recently delivered to each of the Banks pursuant to Section 5.06 (relating to
the operations and financial condition of the Consolidated Group and EPIK after
the Closing Date) fairly present the consolidated and consolidating financial
condition of the Consolidated Group and EPIK as of the dates thereof and the
consolidated and consolidating results of the operations of the Consolidated
Group and EPIK for the periods covered thereby and are complete and correct in
all material respects. All such financial statements were prepared in accordance
with Generally Accepted Accounting Principles applied on a consistent basis
(subject, in the case of such interim statements, to the omission of footnotes
and normal year-end audit adjustments).
SECTION 4.05.00 No Material Adverse Change.
There has been no material adverse change in the business, assets,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects, results of operations or business prospects of the
Borrower Group taken as a whole or FECR since December 31, 1999.
SECTION 4.06.00 Borrower Group.
(a) Set forth on Schedule 4.06 is a complete and accurate list of each
Group Member (other than the Borrower) on the date hereof, showing as to each
such Group Member, the jurisdiction of its organization, its type of entity, its
principal place of business, the nature of its primary business, its federal
employer identification number, and its ownership structure. All the outstanding
Capital Securities of each Group Member have been validly issued, are fully paid
and nonassessable and are owned free and clear of all Liens except Permitted
Liens. Each owner of Capital Securities indicated on Schedule 4.06 has the
unrestricted right to vote, and (subject to limitations imposed by applicable
law and this Agreement) to receive dividends and distributions on, such Capital
Securities.
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(b) Each Group Member (other than the Borrower) is (i) duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and is the type of entity described in Schedule 4.06, (ii) has the
power and authority to own its properties and to carry on its businesses as now
conducted, (iii) is qualified to do business in every jurisdiction where such
qualification is necessary and failure to qualify would have a Material Adverse
Effect and (iv) has the power to execute, deliver and perform its obligations
and to execute and deliver the Loan Documents to which it is a party and to
perform its obligations thereunder.
SECTION 4.07.00 Litigation.
Except as set forth in Schedule 4.07, as supplemented pursuant to
Section 5.09, there is no action, suit or proceeding at law or in equity or by
or before any court or Governmental Authority now pending or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any other Group
Member or any property or rights of the Borrower or any Group Member that, if
adversely determined (independently or collectively), could reasonably be
expected to have a Material Adverse Effect.
SECTION 4.08.00 Tax Returns.
Except as set forth in Schedule 4.08, the Borrower and the other Group
Members have filed or caused to be filed all material federal, state and local
tax returns that are required to be filed and have paid or caused to be paid all
taxes as shown on such returns or on any assessment received by any of them to
the extent that such taxes have become due, except taxes the validity of which
is being contested in good faith by appropriate proceedings (including informal
dispute resolution with appropriate authorities) and with respect to which the
Borrower or such Group Member, as the case may be, has set aside adequate
reserves.
SECTION 4.09.00 Properties.
Except as disclosed in Schedule 4.09, the Borrower and the other Group
Members have good and marketable title (subject to Permitted Liens) (whether fee
simple, leasehold, easement, licenses or indefeasible rights to use, in the case
of real property) to all of their properties and assets reflected on the
consolidated balance sheet of the Consolidated Group dated December 31, 2000,
referred to in Section 4.04, except for such properties and assets as have been
disposed of since such date as no longer necessary in the conduct of its
business or as have been disposed of in the ordinary course of business. The
Borrower and the other Group Members have good and marketable title (whether fee
simple, leasehold, easement, licenses or indefeasible rights to use, in the case
of real property) to all their respective properties and assets and own all such
properties and assets, free and clear of any Liens except Permitted Liens.
SECTION 4.10.00 Employee Benefit Plans.
Schedule 4.10 sets forth a true and complete list of each Plan that the
Borrower or any other Group Member maintains, or expects to maintain, or to
which the Borrower or any other Group Member is, or is expected to be, required
to make any contribution. The Borrower, the other Group Members and each Plan
are in compliance in all material respects with the applicable
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provisions of law, including the applicable provisions of ERISA and the
regulations and published interpretations thereunder. No Reportable Event has
occurred with respect to any Plan administered by the Borrower or any other
Group Member or any administrator designated by the Borrower or any other Group
Member. The Borrower and each other Group Member have met their minimum funding
requirements under ERISA and the Internal Revenue Code with respect to all Plans
and have not incurred any material liability to the PBGC, any Multiemployer Plan
or any entity succeeding to any or all of their functions under ERISA in
connection with any such Plan. Except for the continued coverage requirements of
the Consolidated Omnibus Budget Reconciliation Act of 1985 and subsequent
legislation and as disclosed in Schedule 4.10, the Borrower and the other Group
Members are not obligated to provide medical benefits, hospitalization benefits
or benefits under any other employee welfare benefit plan (within the meaning of
Section 3(1) of ERISA) to any former employee or the spouse or dependent of any
former employee.
SECTION 4.11.00 Government Regulation.
Neither the Borrower nor any other Group Member is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or the Investment Company Act of 1940 (as any of such acts may be
amended) or any other law (other than Regulation X and as described in the
following sentence) that regulates the incurring by the Borrower or any other
Group Member of indebtedness. The Borrower and certain Group Members are subject
to regulation under Subtitle IV of Title 49 of the United States Code; however,
such act does not require any governmental action with respect to, or prohibit,
the Borrower's entering into this Agreement or the other Loan Documents, the
guaranty of the Obligations by the other Group Members or the acceptance or
repayment of the Loans in accordance with the terms hereof.
SECTION 4.12.00 Margin Stock.
The aggregate value of Margin Stock at any time owned or held by the
Group Members shall not exceed an amount equal to 25% of the value of all assets
subject at such time to any "arrangement" (as such term is used in the
definition of "indirectly secured" in Section 221.2 of Regulation U) hereunder
or under any of the other Loan Documents.
SECTION 4.13.00 SEC Filings.
The Borrower has filed all reports and statements required to be filed
with the Securities and Exchange Commission. As of their respective dates, such
reports and statements complied with all rules and regulations promulgated by
the Securities and Exchange Commission and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
SECTION 4.14.00 Necessary Rights.
Each of the Borrower and the other Group Members possesses adequate
assets, licenses, patents, patent applications, copyrights, trademarks, service
marks, trademark applications, trade
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names, technology, processes and permits and other governmental approvals and
authorizations to conduct its business. There are no existing or, to the
knowledge of the Borrower, threatened claims of any Person based on the use of
such permits, patents, trademarks, trade names, copyrights, technology and
processes by the Borrower or any other Group Member and to the knowledge of the
Borrower, no such use infringes on the rights of any Person which could
reasonably be expected to have a Material Adverse Effect.
SECTION 4.15.00 Hazardous Wastes.
Except as set forth in Schedule 4.15, all land owned, leased or used by
the Borrower or any other Group Member is free from reportable quantities of
Hazardous Wastes, and no portion of such land would subject any Borrower or
other Group Member to liability, in either case which could reasonably be
expected to have a Material Adverse Effect under federal, state or local law or
regulation because of the presence of stored, leaked or spilled Toxic Substances
or Hazardous Wastes, underground storage tanks, "asbestos" (as defined in 40
C.F.R. ss. 61.141) or the past or present accumulation, spillage or leakage of
any such substance, nor has the Borrower or any other Group Member arranged for
disposal or treatment (or arranged with a transporter for transport for disposal
or treatment) of any such substance to any other location except in compliance
in all material respects with Environmental Laws. Except with respect to
investigations and remediations relating to the matters set forth in Schedule
4.15, neither the Borrower nor any other Group Member has received any notice
from the Environmental Protection Agency or any other Governmental Authority
alleging that it is a "responsible party" which could reasonably be expected to
have a Material Adverse Effect.
SECTION 4.16.00 No Brokers or Finders.
No broker or finder brought about or contributed to the obtaining,
making or closing of the Loans made pursuant to this Agreement, and the Borrower
has no obligation to any person in respect of any finder's or brokerage fees in
connection with the Loans contemplated by this Agreement except for the fees
payable to the Administrative Agent and the Banks hereunder and pursuant to the
Administrative Agent's Fee Letter.
SECTION 4.17.00 No Default of Debt; Solvency.
(a) After giving effect to the transactions contemplated by this
Agreement, neither the Borrower nor any other Group Member is in default of any
Debt in excess of $500,000 and no holder of any such Debt has given notice of an
asserted default thereunder. Except as permitted under Section 6.03, no
liquidation, dissolution or other winding up of the Borrower or any other Group
Member and no bankruptcy or similar proceedings relative to them or their
property are pending or, to the knowledge of the Borrower, threatened against
them.
(b) On the date hereof, each of the Borrower and the other Group
Members is, and after consummation of the transactions contemplated by this
Agreement and the Guaranty Agreements and after giving effect to all Debt
incurred (assuming the entire Commitment is fully advanced on the Closing Date)
by the Borrower and the other Group Members in connection herewith and therewith
will be, Solvent.
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SECTION 4.18.00 Agreements.
Except as set forth in Schedule 4.18, neither the Borrower nor any
other Group Member is a party to any agreement or instrument or subject to any
provision in its Organizational Documents that could reasonably be expected to
have a Material Adverse Effect or conflict with or constitute a Default under
this Agreement or any other Loan Document. Neither the Borrower nor any other
Group Member is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement or
instrument to which it is a party in any manner that could reasonably be
expected to have a Material Adverse Effect.
SECTION 4.19.00 Compliance with Law.
Each of the Borrower and the other Group Members has complied with all
applicable statutes, rules, regulations, orders and restrictions of any
Governmental Authority where the failure to comply could reasonably be expected
to have a Material Adverse Effect.
SECTION 4.20.00 Labor Controversies.
Schedule 4.20 lists each of the collective bargaining agreements to
which any of the Borrower and the other Group Members is a party. Except to the
extent set forth in Schedule 4.20, as supplemented pursuant to Section 5.10,
each of the Borrower and the other Group Members (a) is in compliance with all
applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours where the failure to comply could
reasonably be expected to have a Material Adverse Effect, and is not engaged in
any unfair labor practice that could reasonably be expected to have a Material
Adverse Effect, (b) is not the subject of any labor strike, slowdown, stoppage
or material dispute actually pending, threatened or otherwise affecting it, and
(c) is not the subject of or otherwise involved in any grievance or any
arbitration proceeding arising out of and under a collective bargaining
agreement that could reasonably be expected to have a Material Adverse Effect.
SECTION 4.21. 00 No Material Misstatements.
All information, financial statements and documents furnished to the
Administrative Agent and the Banks in connection herewith are complete and
accurate in all material respects. No information, report, financial statement,
exhibit or schedule furnished by or on behalf of the Borrower to the
Administrative Agent or any Bank in connection with the negotiation, execution,
delivery or performance of this Agreement, any Note or any other Loan Document
hereunder, or any schedule hereto or thereto contains any material misstatement
of fact or omitted or omits to state any material fact necessary to make the
statements herein or therein not misleading. There is no event or fact that the
Borrower has not disclosed to the Banks that causes a Material Adverse Effect
or, so far as the Borrower can now foresee, is likely to cause a Material
Adverse Effect.
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ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Administrative Agent and the
Banks that until the Repayment Date, unless the Majority Banks otherwise consent
in writing, as follows:
SECTION 5.01.00 Corporate Existence and Maintenance of Properties.
The Borrower shall, and shall cause each of the other Group Members to,
do or cause to be done all things necessary to preserve, maintain, renew and
keep in full force and effect its corporate existence (except as permitted under
Section 6.03), material rights, licenses, permits and franchises; conduct its
business in substantially the same manner as heretofore conducted; at all times
maintain and preserve all property used or useful in the conduct of its business
and keep the same in good repair, working order and condition (ordinary wear and
tear excepted), and from time to time make, or cause to be made, all necessary
and proper repairs, renewals and replacements thereto, so that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02.00 Compliance with Laws.
The Borrower shall, and shall cause each of the other Group Members to,
do or cause to be done all things necessary to comply with all laws and
regulations applicable to it where the failure to comply could reasonably be
expected to have a Material Adverse Effect, including without limitation the
following:
(a) STB and FRA Filings. The Borrower shall make, and shall cause each
of the other Group Members to make, on a timely basis, all filings, if any, it
is required to make with the STB and FRA.
(b) ERISA. The Borrower shall comply, and shall cause each of the other
Group Members to comply, in all material respects with the applicable provisions
of ERISA and as soon as possible, and in any event within ten (10) days after
the Borrower knows or has reason to know that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan have occurred or
exist, the Borrower shall deliver to the Administrative Agent a statement signed
by the chief financial officer of the Borrower setting forth details describing
such event or condition and the action, if any, that the Borrower or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any report or
notice required to be filed with or given to PBGC by the Borrower or an ERISA
Affiliate with respect to such event or condition):
(i) any Reportable Event, with respect to a Plan, as to which
PBGC has not by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within thirty (30) days of the occurrence of
such event (provided that a failure to meet the minimum funding
standard of Section 12 of the Internal Revenue Code or Section 302 of
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ERISA shall be a Reportable Event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Internal Revenue
Code);
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or the receipt by the Borrower or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has
been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Borrower or any
ERISA Affiliate under Section 4203 or 4205 of ERISA from a
Multiemployer Plan, or receipt by the Borrower or any ERISA Affiliate
of a notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A or ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
thirty (30) days; and
(vi) the present value of liabilities of any Plan being
materially greater than the fair market value of the Plan's assets.
(c) Environmental Laws. The Borrower shall, and shall cause each of the
other Group Members to, comply in all material respects with all Environmental
Laws. In furtherance of such covenant, the Borrower agrees as follows:
(i) The Borrower shall not, and shall not permit any other
Group Member or any subtenant, licensee, occupant or any other parties
(collectively, the "Occupants") using any real estate owned, leased or
used by the Borrower or any other Group Member (the "Property"), to
conduct any activity at or near the Property, except for the operation
of the Borrower's and the other Group Members' and Occupants' business
in the ordinary course in compliance with Environmental Laws, which
could lead to (A) the imposition of any liability on the Borrower or
any other Group Member or other subsequent or former owner of the
Property under any Environmental Laws which could reasonably be
expected to have a Material Adverse Effect or (B) the creation of a
lien on the Property under any Environmental Laws securing a liability
of the type described in the preceding clause (A).
(ii) The Borrower shall, and shall cause each of the other
Group Members and the Occupants to, obtain and maintain all licenses,
permits, or other governmental or regulatory actions necessary to
comply in all material respects with all Environmental Laws, including
without limitation environmental event response capability relating to
FECR's chemical traffic. Further, the Borrower shall (A) promptly
notify the Administrative Agent and the Banks in the event of any
discharge, release or spillage of Hazardous Wastes or Toxic Substances
at the Property which could reasonably be
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expected to have a Material Adverse Effect and that has not previously
been disclosed pursuant to Section 4.15 and (B) promptly forward to the
Administrative Agent and the Banks copies of all orders, notices,
permits, applications or other communications and reports in connection
with any such discharge, release or spillage of Hazardous Wastes or
Toxic Substances at or from the Property that has not previously been
disclosed pursuant to Section 4.15 and shall give prompt written notice
of any assertion of material liability by a third party, or of any
condition or event which reasonably could be expected to give rise to a
claim by such third party against the Administrative Agent or any Bank.
(iii) If at any time the Administrative Agent has reasonable
cause to believe there are Hazardous Wastes or Toxic Substances upon
the Property in quantities imposing material risks that have not
previously been disclosed in writing to the Administrative Agent and
the Banks, the Borrower shall, at the request of the Administrative
Agent, promptly obtain at the Borrower's cost an environmental site
assessment or environmental audit report from a firm acceptable to the
Administrative Agent and the Banks, to assess with a reasonable degree
of certainty (A) the presence of any Hazardous Wastes or Toxic
Substances and (B) the cost in connection with the abatement, cleanup
or removal of such. If the Borrower refuses or fails to comply with
such request or such environmental site assessment or environmental
audit report is not delivered to the Administrative Agent within 90
days after the date of request, the Administrative Agent may obtain
such environmental site assessment or environmental audit report at the
Borrower's cost.
(iv) In the event any investigation, monitoring, cleanup,
containment, restoration, removal or other remedial work (collectively
"Remedial Work") of Hazardous Wastes or Toxic Substances at, on or
under the Property is required of the Borrower or any other Group
Member by a Governmental Authority under any Environmental Law, then
the Borrower shall perform or cause to be performed the Remedial Work
in compliance with applicable Environmental Laws.
(v) The Borrower acknowledges that the Administrative Agent
and the Banks have entered into this Agreement and made the Loans in
reliance upon the Borrower's representations and warranties in Section
4.15 and its covenants in this Section 5.02(c). Accordingly, the
Borrower hereby agrees that the Borrower shall be liable for all costs
and expenses incurred by or asserted against the Administrative Agent
or any Bank arising under violations of the terms of this Section
5.02(c) or a breach of any representation or warranty contained in
Section 4.15 of this Agreement. All of the representations and
warranties contained in Section 4.15 and the Borrower's covenants under
this Section 5.02(c) shall survive the Repayment Date.
(vi) Any amounts disbursed by the Administrative Agent
pursuant to the provisions of this Section 5.02(c) shall be added to,
and deemed a part of, the Obligations, and shall bear interest from the
date of the disbursements thereof at the rates specified herein, and
shall, together with the interest thereon, be payable by the Borrower
on demand.
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(d) SEC Filings. The Borrower shall make, on a timely basis, all of the
filings it is required to make with any securities exchange or with the
Securities and Exchange Commission, including, but not limited to, annual,
quarterly and special reports (including 8-K, 10-K and 10-Q reports).
SECTION 5.03.00 Insurance.
The Borrower shall maintain, and shall cause each of the other Group
Members to maintain, insurance with financially sound insurance companies or
associations, in such amounts and covering such risks as is usually carried by
companies engaged in the same or similar businesses and owning similar
properties in the same general areas in which the Borrower and each of the other
Group Members operates and furnish to the Administrative Agent, upon request,
full information (including certificates and originals or certified copies of
the policies) as to the insurance carried.
SECTION 5.04.00 Obligations and Taxes.
The Borrower shall settle, and shall cause each of the other Group
Members to settle, all car hire and interline accounts in a timely and customary
manner. The Borrower shall pay, and shall cause each of the other Group Members
to pay, all of its Debt and obligations in a timely and customary manner and pay
and discharge promptly all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become in default or delinquent, as the case may be, as
well as all lawful claims for labor, materials and supplies or otherwise that,
if unpaid, could reasonably be expected to become a Lien upon such properties or
any part thereof; provided, however, that neither the Borrower nor any other
Group Member shall be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof is contested in good faith by appropriate proceedings
(including informal dispute resolution with appropriate authorities) and the
Borrower or such other Group Member, as the case may be, sets aside adequate
reserves therefor.
SECTION 5.05.00 Accounting Methods and Financial Records.
The Borrower shall maintain, and shall cause each other Group Member to
maintain, a system of accounting and financial records in accordance with
Generally Accepted Accounting Principles, and keep such books, records and
accounts (which shall be true and complete), as may be required or necessary to
permit (a) the preparation of financial statements required to be delivered
pursuant to Section 5.06 and (b) the determination of the Borrower's compliance
with the terms of this Agreement. All financial reports and projections
furnished by the Borrower to the Administrative Agent and the Banks pursuant to
this Agreement shall be prepared in such form and such detail as shall be
reasonably satisfactory to the Administrative Agent and the Banks, shall be
prepared in accordance with Generally Accepted Accounting Principles
consistently applied.
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SECTION 5.06.00 Financial Statements, Certificates and Reports.
The Borrower shall furnish to the Administrative Agent and the Banks:
(a) Quarterly Financial Statements. As soon as available, and in any
event within forty-five (45) days after the end of each fiscal quarter, copies
of consolidated and consolidating balance sheets of the Consolidated Group
(including EPIK) as of the end of such quarter and copies of the related
statements of earnings and cash flows of the Consolidated Group (including EPIK)
for such quarter and for the portion of the fiscal year ending with such
quarter, setting forth in comparative form the figures for the corresponding
period of the preceding fiscal year, all in reasonable detail, and certified by
the chief financial officer of the Borrower as being true, correct and complete
in all material respects and being prepared in accordance with Generally
Accepted Accounting Principles, subject to normal year-end audit adjustments and
the omission of footnotes;
(b) Annual Statements. As soon as available and in any event within
ninety (90) days after the close of each fiscal year of the Borrower, copies of
the consolidated and consolidating balance sheets of the Consolidated Group
(including EPIK) as of the close of such fiscal year and consolidated and
consolidating statements of earnings and cash flows of the Consolidated Group
and EPIK for such fiscal year, in each case setting forth in comparative form
the figures for the preceding fiscal year, all in reasonable detail and
accompanied by an unqualified opinion thereon of KPMG LLP, or any successor
accounting firm or any other independent public accountants selected by the
Borrower and satisfactory to the Banks, to the effect that such consolidated
financial statements of the Consolidated Group and financial statements of EPIK
have been prepared in accordance with Generally Accepted Accounting Principles
consistently maintained and applied (except for changes in accounting principles
required by the Financial Accounting Standards Board or American Institute of
Certified Public Accountants as disclosed therein) and that the examination of
such accounts in connection with such financial statements has been made in
accordance with generally accepted auditing standards and, accordingly, includes
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(c) Annual Budget. As soon as available and in any event within thirty
(30) days after adoption or approval by the Borrower's board of directors (but
not later than April 15 of each year), copies of the annual budget for the
Borrower Group.
(d) SEC Filings. Promptly upon the filing thereof or otherwise becoming
available, copies of all financial statements, annual, quarterly and special
reports (including, without limitation, Borrower's 8-K, 10-K, and 10-Q 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 Borrower with any
securities exchange or with the Securities and Exchange Commission, 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 Group Members;
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(e) Audit Reports. Promptly upon receipt thereof, copies of material
financial statements of, and material reports submitted by, independent public
accountants to Borrower in connection with each annual, interim, or special
audit of Borrower's financial statements, including without limitation, the
comment letter submitted by such accountants to management in connection with
their annual audit;
(f) Accountants Certificates. Within the period provided in paragraph
(b) above, a certificate of the accountants who render an opinion with respect
to such financial statements (i) stating that they have reviewed the Compliance
Certificate prepared by the Borrower setting forth the Borrower's calculation of
the covenants set forth in Article VII of this Agreement based on such financial
statements and that such calculations are reasonable and (ii) stating that, in
making the examination necessary for their report on such financial statements,
nothing came to their attention that caused them to believe that, as of the date
of such financial statements, the Company failed to comply with the terms,
covenants, provisions or conditions of this Agreement insofar as they relate to
accounting matters or, if such is not the case, specifying any Default and its
nature, when it occurred and whether it is continuing;
(g) Compliance Certificate. As soon as available, and in any event
within forty-five (45) days after the end of each fiscal quarter of each fiscal
year and within ninety (90) days after the end of the fourth quarter of each
fiscal year of the Borrower hereafter, a Compliance Certificate;
(h) Traffic Summaries. As soon as available, and in any event within
ninety (90) days after the end of each fiscal year of the Borrower hereafter, an
annual Traffic Summary;
(i) STB and FRA Filings. As soon as available and in any event within
ten (10) days after the filing thereof, copies of all material filings and
reports filed by the Borrower or any other Group Member with the STB and the
FRA, excluding routine filings and reports in the ordinary course of business;
(j) Notices of Discrepancies. Immediately after Borrower's discovery
thereof, written notice of any inaccuracy or incorrect statement contained in
any of the foregoing that is material or that changes any of the financial
calculations under this Agreement, including a statement containing the correct
information required; and
(k) Other Information. Such other information concerning the business,
properties or financial condition of the Borrower and the other Group Members as
the Administrative Agent may reasonably request.
SECTION 5.07.00 Access to Property and Records.
The Borrower shall permit, and shall cause each other Group Member to
permit, representatives of the Administrative Agent and the Banks to have
reasonable access to the financial records and the premises of the Borrower and
each other Group Member at reasonable times and to make copies of such records
and, upon request of the Administrative Agent, to provide the Administrative
Agent and the Banks with copies of all material contracts and agreements with
other rail carriers and/or shippers and all agreements between and among the
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Borrower and affiliates, including material management agreements, marketing
agreements, transportation agreements and tax sharing agreements.
SECTION 5.08.00 Notice of Default.
The Borrower shall give the Administrative Agent and each Bank prompt
written notice of any Default, which shall indicate the Borrower's evaluation
thereof and its plans, if any, for the cure thereof.
SECTION 5.09.00 Notice of Litigation and Other Actions.
The Borrower shall deliver or cause to be delivered to the
Administrative Agent and each Bank, promptly after learning of the occurrence
thereof, (a) notice of the institution of or threat of, any action, suit,
proceeding, governmental investigation (including actions by the STB, the FRA
and the Securities and Exchange Commission) or arbitration against or affecting
the Borrower or any other Group Member not previously disclosed to the
Administrative Agent and the Banks pursuant to Section 4.07 or this Section
5.09, that could reasonably be expected to have a Material Adverse Effect and
(b) a description of any material development in any action, suit, proceeding,
governmental investigation or arbitration already disclosed hereunder.
SECTION 5.10.00 Notice of Strikes, Labor Controversies, etc..
The Borrower shall deliver or cause to be delivered to the
Administrative Agent and each Bank, promptly after learning of the occurrence of
any event described in Section 4.20 that has not previously been disclosed in
writing to the Administrative Agent and the Banks, (a) notice of such event, (b)
the Borrower's assessment of the effect such event is likely to have on the
financial condition of the Borrower and the other Group Members during the
following sixty days, (c) the Borrower's general plan for minimizing the adverse
effects of such event and (d) a description of any material development in any
such event.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with the Administrative Agent and the
Banks, until the Repayment Date, unless the Majority Banks otherwise consent in
writing, as follows:
SECTION 6.01.00 Liens.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member, directly or indirectly, to create, incur, assume or suffer to
exist any Lien upon or with respect to any of its assets or properties, now
owned or hereafter acquired, or assign or otherwise convey any right to receive
income; provided that the foregoing restrictions shall not apply to the
following Liens ("Permitted Liens"):
(a) for taxes, assessments or governmental charges or levies on its
property if they (i) are not delinquent at the time or (ii) thereafter can be
paid without penalty and are being contested in
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good faith and by appropriate proceedings (including informal dispute resolution
with appropriate authorities) and with respect to which it has set aside
adequate reserves in accordance with Generally Accepted Accounting Principles;
(b) imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens, that arise in the ordinary course of business
with respect to obligations not yet due or being contested in good faith and by
appropriate proceedings (including informal dispute resolution with appropriate
authorities) and with respect to which it has set aside adequate reserves in
accordance with Generally Accepted Accounting Principles;
(c) arising in the ordinary course of business out of pledges or
deposits under workmen's compensation laws, unemployment insurance, pensions, or
other social security or retirement benefits, or similar legislation;
(d) incidental to the conduct of its business or the ownership of its
property and assets (such as easements, zoning restrictions, trackage rights,
interchange agreements, crossing agreements, leases, licenses, and restrictive
covenants) not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the aggregate materially
detract from the value of its property or assets or materially impair the use
thereof in the operation of its business;
(e) arising out of pledges or deposits to secure performance in
connection with bids, tenders, contracts (other than contracts for the payment
of money) or leases (other than Capital Leases) to which the Borrower or any
other Group Member is a party in the ordinary course of business;
(f) in respect of property acquired or constructed by it after the date
hereof, including, without limitation, property of Subsidiaries acquired after
the date hereof, which Liens (including Capitalized Lease Obligations) exist or
are created at the time of acquisition or completion of construction of such
property or within thirty (30) days thereafter, to secure Debt assumed or
incurred to finance all or any part of the purchase price or cost of
construction of such property, but any such Liens shall cover only the property
so acquired or constructed and the aggregate amount secured by such Liens shall
not exceed $10,000,000 at any time outstanding; and
(g) in respect of property securing Non-recourse Debt of Flagler, but
any such Liens shall cover only the property of the project to which such
Non-recourse Debt relates and the aggregate amount secured by such Liens shall
not exceed $250,000,000 at any time outstanding.
SECTION 6.02.00 Debt.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member, directly or indirectly, to create, incur, assume or suffer to
exist any Debt, except (a) Debt hereunder and under the Loan Documents in
respect of the Notes, (b) Debt between and among Group Members, (c) equipment
acquisition financing, the aggregate amount of which shall not exceed
$10,000,000 and (d) with respect to Flagler, Non-recourse Debt, the aggregate
amount of which shall not exceed $250,000,000.
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SECTION 6.03.00 Liquidation, Sale of Assets and Merger.
(a) Except as otherwise provided herein, the Borrower shall not, and
shall not cause, permit or suffer any other Group Member to, (i) sell, lease,
transfer or otherwise dispose of any portion of its properties and assets to any
Person (other than in the ordinary course of business) or (ii) liquidate or
discontinue its business; provided, however, that (w) any Group Member (other
than the Borrower) may sell, lease or transfer all or substantially all of its
assets to the Borrower or another Group Member and the Borrower may acquire (for
an amount not exceeding the fair market value thereof) all or substantially all
of the properties and assets of the other Group Member so to be sold, leased or
transferred to it, if immediately before and after giving effect to such sale,
lease or transfer, no Default shall have occurred and be continuing, (x) any
Group Member may sell assets that are obsolete or no longer used or useful in
its business, (y) the Borrower may make transfers to EPIK in connection with the
EPIK Capitalization Plan; provided that the fair market value of any assets or
properties transferred by the Borrower or any other Group Member to EPIK in
connection with the EPIK Capitalization Plan shall not exceed $100,000,000 in
the aggregate and the book value of such assets or properties shall not exceed
$25,000,000 in the aggregate and (z) any Group Member may sell other assets,
provided that (A) immediately prior to such sale, no Default shall have occurred
and be continuing, (B) immediately after giving effect to such sale, no Default
shall have occurred or be continuing, and (C) the aggregate fair market value of
all such other assets sold during any fiscal year shall not exceed $10,000,000.
(b) The Borrower shall not, and shall not cause, permit or suffer any
other Group Member to, merge or consolidate with or into any other Person or,
subject to Section 6.04(a) below, acquire all or substantially all the equity
securities, properties or assets of any other Person, except that any Group
Member (other than the Borrower) may be merged into, or consolidated with, the
Borrower or another Group Member, if immediately before and after giving effect
to such sale, lease or transfer, no Default shall have occurred and be
continuing.
SECTION 6.04.00 Acquisitions and Investments.
(a) The Borrower shall not, and shall not cause, permit or suffer any
other Group Member to, directly or indirectly, make any Acquisition or enter
into any agreement to make any Acquisition for consideration consisting of cash
or cash equivalents, common stock of the Borrower (valued at the market value
thereof as of the date of issuance thereof), other securities or properties of
the Borrower or any other Group Member (valued in good faith by the board of
directors of the Borrower), the assumption of any debt (valued at the principal
amount thereof), any other consideration (valued in good faith by the board of
directors of the Borrower) or any combination of the foregoing; except that the
Borrower or any other Group Member may make Acquisitions provided that (i)
immediately prior to such Acquisition, no Default shall have occurred and be
continuing, (ii) immediately after giving effect to such Acquisition, no Default
shall have occurred or be continuing, (iii) the aggregate value of all cash
consideration (and assumed liabilities) for all Acquisitions and other
investments permitted under Section 6.04(b)(xii) made during the fiscal year
beginning January 1, 2001 shall not exceed $20,000,000, and (iv) the aggregate
value of all cash consideration (and assumed liabilities) for all Acquisitions
and other investments permitted under Section 6.04(b)(xii) made during each
fiscal year beginning on or
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after January 1, 2002 shall not exceed $20,000,000 plus an amount equal to the
lesser of (A) $5,000,000 and (B) $20,000,000 minus the aggregate cash
consideration (and assumed liabilities) made during the then immediately
preceding fiscal year.
(b) The Borrower shall not, and shall not cause, permit or suffer any
other Group Member to, make or commit to make any advance, loan, extension of
credit or capital contribution to, or purchase of any stock, bonds, notes,
debentures or other securities of, or make any other investment (by way of
guarantee or otherwise) in any Person other than (i) investments in obligations
of, and obligations of third parties that are fully guaranteed as to principal
and interest by, the United States of America; or (ii) investments in commercial
paper issued by any Person having at least an A2 credit rating from the
publication services of Standard & Poor's Credit Corp. ("S&P"), or P2 by ▇▇▇▇▇'▇
Investor Services, Inc. ("Moody's"), or similar ratings provided by successor
rating agencies; or (iii) demand deposits maintained in the ordinary course of
the Borrower's business or that of any of the other Group Members; or (iv)
repurchase agreements collateralized by the investments referred to in (i) or
(ii) above; or (v) certificates of deposit, master notes, bankers' acceptances,
or Eurodollar time deposits issued by commercial banks or trust companies having
capital and surplus in excess of $100,000,000; or (vi) obligations of states,
municipalities, counties, political subdivisions, agencies of the foregoing and
other similar entities, rated at least A, MIG-1, or MIG-2 by Moody's or at least
A by S&P, or similar ratings by successor rating agencies; or (vii) unrated
obligations of states, municipalities, counties, political subdivisions,
agencies of the foregoing and other similar entities, supported by irrevocable
letters of credit issued by commercial banks having capital and surplus in
excess of $100,000,000 and long-term debt that is rated at least A by Moody's or
S&P (or similar ratings by successor rating agencies) or commercial paper that
is rated at least A2 by Moody's or P2 by S&P (or similar ratings by successor
rating agencies); or (viii) unrated general obligations of states,
municipalities, counties, political subdivisions, agencies of the foregoing and
other similar entities, provided that the issuer has other outstanding general
obligations rated at least A, MIG-1 or MIG-2 by Moody's or A by S&P (or similar
ratings by successor rating agencies); or (ix) mutual funds that invest
exclusively in the investments permitted by the preceding clauses (i) through
(viii); or (ix) investments owned on the date hereof; (x) investments by the
Borrower and other Group Members in the Borrower and other Group Members; or
(xi) cash investments by the Group Members in EPIK (including the amount of Debt
of EPIK guarantied by the Group Members, equity investments and/or other
advances, but excluding the amount of all accrued and payment-in-kind interest
and dividends owing to the Group Members), which cash investments shall not, in
the aggregate, exceed $450,000,000; (xii) Acquisitions permitted by Section
6.04(a) and, provided no Default has occurred and is continuing or would result
therefrom, other investments which satisfy the conditions specified in clauses
(iii) and (iv) of Section 6.04(a); or (xiii) investments by Flagler in joint
ventures pursuant to the St. ▇▇▇ Management Agreement and pursuant to other
joint venture agreements existing on the date hereof, provided that (A)
immediately prior to such investment, no Default shall have occurred and be
continuing, (B) immediately after giving effect to such investment, no Default
shall have occurred or be continuing, and (C) the amount of cash and the book
value of other assets invested in such joint ventures shall not exceed
$100,000,000 in the aggregate.
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SECTION 6.05.00 Guarantees.
The Borrower shall not, and shall not cause, permit or suffer any of
the other Group Members to, issue any Guaranty, except that (a) the Borrower and
the other Group Members may execute and deliver the Guaranty Agreements and may
endorse checks for deposit in the ordinary course of business, (b) the Borrower
may guaranty the Debt of EPIK (subject to the limitations contained in Section
6.04(b)), (c) Flagler may execute and deliver performance guaranties to
municipalities in connection with specific projects in the ordinary course of
business and (d) any Group Member may Guaranty any obligations of any other
Group Member provided that the incurrence of the obligations so guaranteed is
not prohibited by this Agreement.
SECTION 6.06.00 Sale and Leaseback, Rentals.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member to, enter into any transaction involving the simultaneous sale or
disposition and leaseback of any of its property or assets; or enter into any
agreements to rent or lease, as lessor, property or assets except for (a)
trackage, operating and haulage rights and leases, (b) operating leases of
revenue and motive power and equipment in the ordinary course of business, (c)
Capital Leases permitted by Section 6.02 and (d) leases of real property by
Group Members in the ordinary course of business.
SECTION 6.07.00 No Distributions or Management Fees.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member to, make any Distribution or pay any management fees other than (a)
Distributions to the Borrower or any other Group Member, (b) service and
administrative fees payable to Affiliates in compliance with Section 6.10, (c)
interest and other sums due to the Administrative Agent or the Banks under this
Agreement, (d) ordinary dividends payable by the Borrower provided that after
giving effect to such dividend and the payment thereof no Default shall have
occurred and be continuing, (e) management fees paid under the St. ▇▇▇
Management Agreement, and (f) redemptions and repurchases of capital stock of
the Borrower and special dividends provided that after giving effect to such
redemptions and repurchases and special dividends no Default shall have occurred
and be continuing and the aggregate amount of such redemptions and repurchases
and special dividends after the date hereof shall not exceed $50,000,000.
SECTION 6.08.00 Breach or Violation.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member to, enter into any agreement containing any provision that would be
violated or breached by the performance of the Borrower's or any other Group
Member's obligations under this Agreement, the Notes or any of the other Loan
Documents.
SECTION 6.09.00 Use of Proceeds.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member to, use any of the proceeds of any of the Loans for any purpose
other than the purposes set forth in
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the Recitals herein. Without limiting the generality of the foregoing, no part
of the proceeds of the Loans hereunder will be used in a manner inconsistent
with Section 4.12.
SECTION 6.10.00 Transactions with Affiliates.
Except with respect to the St. ▇▇▇ Recapitalization Agreement and as
otherwise expressly permitted herein, the Borrower shall not, and shall not
cause, permit or suffer any other Group Member to effect any transaction with
any Affiliate of any Group Member, including EPIK, on a basis materially less
favorable to the Borrower or other Group Member than would at the time be
obtainable for a comparable transaction in arms-length dealing with an unrelated
third party.
SECTION 6.11.00 Restrictive Covenants.
Except as permitted by Sections 6.02 and 6.09, the Borrower shall not,
and shall not cause, permit or suffer any other Group Member to, enter into any
Contract, or otherwise create or cause or permit to exist or become effective
any consensual restriction, limiting the ability (whether by covenant, event of
default or otherwise) of any Subsidiary of such Person to (a) pay dividends or
make any other distributions on its Capital Securities held by the Group
Members, (b) pay any obligation owed to the Borrower or any other Group Member,
(c) make any loans or advances to or investments in the Borrower or in any other
Group Member, (d) transfer any of its property or assets to the Borrower or any
other Group Member, or (e) create any Lien upon its property or assets whether
now owned or hereafter acquired or upon any income or profits therefrom, except
that this clause (e) shall not apply to covenants applicable to Debt of Flagler
permitted pursuant to Section 6.02(d) and this Section 6.11 shall not apply to
Permitted Restrictive Covenants.
SECTION 6.12.00 Issuance or Disposition of Capital Securities.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member to, issue any of its Capital Securities or sell, transfer or
otherwise dispose of any Capital Securities of any Subsidiary of such Person,
except that this Section shall not apply to (a) any issuance by any Group Member
of any of its Capital Securities to all of the holders of its Capital Securities
made pro rata to the relative amounts of such Capital Securities held by such
holders, (b) any issuance by a Subsidiary of a Group Member of any of its
Capital Securities to the Borrower or any other Group Member, and (c) subject to
Section 1.05, any other issuance of Capital Securities by the Borrower.
SECTION 6.13.00 ERISA Compliance.
The Borrower shall not, and shall not cause, permit or suffer any other
Group Member to, significantly increase benefits under any Plan or adopt or
establish any new Plan subject to ERISA except for health, life insurance and
disability benefits. Additionally, the Borrower will not, and will not permit
any other Group Member to, incur any "accumulated funding deficiency" within the
meaning of Section 302(a)(2) of ERISA, or any liability under Section 4062 of
ERISA to the Pension Benefit Guaranty Corporation ("PBGC") established
thereunder in connection with any Plan.
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SECTION 6.14.00 Future Group Members.
The Borrower shall not, and shall not cause, permit or suffer any Group
Member to, create or acquire any interest in any Subsidiary (other than the
Group Members set forth on Schedule 4.06 and EPIK), unless (a) such Subsidiary
becomes a Group Member and executes and delivers to the Administrative Agent a
Guaranty Agreement within ten (10) days after it becomes a Subsidiary, and (b)
unless otherwise expressly agreed by the Banks, such Subsidiary becomes a member
of the Consolidated Group.
ARTICLE VII
FINANCIAL COVENANTS
The Borrower covenants and agrees with the Administrative Agent and the
Banks that, until the Repayment Date, unless the Majority Banks otherwise
consent in writing, it shall comply with the following financial covenants (each
of which shall be calculated for the Borrower Group based upon the financial
statements delivered pursuant to Section 5.06 hereof):
SECTION 7.01.00 Maximum Leverage Ratio.
The Borrower Group shall maintain at all times a Leverage Ratio not to
exceed the following:
Leverage Ratio
Period Not to Exceed
----------------------------- --------------
From the Closing Date through 3.00 to 1.00
12/31/02
01/01/03 through 12/31/03 2.75 to 1.00
01/01/04 and thereafter 2.50 to 1.00
SECTION 7.02.00 Minimum Group Net Worth.
The Borrower Group shall maintain at all times a minimum Group Net
Worth
(a) on the Closing Date and prior to March 31, 2001 of $675,000,000,
and (b) at all times on and after March 31, 2001, equal to $675,000,000, plus
the sum of (i) 50% of Group Net Income (but not less any net losses) for each of
the Borrower's fiscal quarters ending on or after March 31, 2001 and (ii) an
amount equal to 100% of the Net Cash Proceeds of any issuances by the Borrower
of any Capital Securities.
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SECTION 7.03.00 Minimum Fixed Charge Coverage Ratio.
The Borrower Group shall maintain at all times a Fixed Charge Coverage
Ratio, calculated on the last day of each fiscal quarter, of not less than 1.25
to 1.00.
SECTION 7.04.00 Maximum Global Leverage Ratio.
The Consolidated Group shall maintain at all times a Global Leverage
Ratio not to exceed 3.50 to 1.00.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01.00 Events of Default.
Each of the following shall constitute an "Event of Default", whatever
the reason for such event and whether it shall be voluntary or involuntary, or
within or beyond the control of the Borrower or any other Group Member, or be
effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any governmental or nongovernmental body:
(a) any payment of the principal of or interest on any Note or of the
Commitment Fee, the Administrative Agent's Fees, or any other amount due under
this Agreement, the Note or the Administrative Agent's Fee Letter shall not be
made, when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(b) any representation or warranty made herein or in any other Loan
Document or any statement or representation made in any report, certificate,
financial statement or other instrument furnished by the Borrower to the
Administrative Agent or the Banks pursuant to this Agreement shall prove to have
been false or misleading in any material respect when made or delivered or when
deemed made in accordance with the terms hereof and the facts and circumstances
related thereto could reasonably be expected to have a Material Adverse Effect;
(c) Borrower or any other Group Member shall fail to observe or perform
any covenant, warranty or agreement contained in or referred to in Sections
5.01, 5.02, 5.03 and 5.07 and Articles VI and VII; provided that in the case of
the maintenance of material rights, licenses, permits and franchises pursuant to
Section 5.01 and in the case of Section 5.03, such default continues unremedied
for ten (10) days after written notice thereof to the Borrower by the
Administrative Agent or the Majority Banks;
(d) Borrower or any other Group Member shall fail to observe or perform
any other covenant, condition or agreement to be observed or performed pursuant
to the terms hereof and such default shall continue unremedied for thirty (30)
days after written notice thereof to the Borrower by the Administrative Agent or
the Majority Banks;
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(e) the Borrower or any other Group Member shall fail to pay any Debt
other than the Loans hereunder greater than $5,000,000 owing by the Borrower or
such other Group Member, or any interest or premium thereon, when due (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or the Borrower
or any other Group Member shall fail to perform any term, covenant or agreement
on its part to be performed under any agreement or instrument evidencing or
securing or relating to any such Debt and as a result of such failure the holder
of such Debt is permitted to accelerate such Debt;
(f) the Borrower or any other Group Member shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code or any other federal, state or foreign bankruptcy,
insolvency or similar law, (ii) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any such proceeding or the filing
of any such petition, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator or similar official for the Borrower
or such other Group Member or for a substantial part of its property, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or fail generally to pay its
debts as they become due, or (vii) take corporate action for the purpose of
effecting any of the foregoing;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower or any other Group Member, or of a substantial part
of its property, under Title 11 of the United States Code or any other federal,
state or foreign bankruptcy, insolvency or similar law, (ii) the appointment of
a receiver, trustee, custodian, sequestrator or similar official for the
Borrower or such other Group Member or for a substantial part of its property or
(iii) the winding-up or liquidation of the Borrower or such other Group Member;
and such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall continue
unstayed and in effect for 30 days;
(h) a default or event of default shall have occurred and be continuing
pursuant to any other Loan Document after the giving of notice and the
expiration of any applicable cure period provided therein;
(i) a judgment or order for the payment of money shall be entered
against the Borrower or any other Group Member by any court and the aggregate
amount of all such judgments and orders exceeds $5,000,000 (less the amount
thereof which is insured pursuant to third-party liability insurance and for
which such insurer has assumed coverage), unless such judgment is being appealed
by the Borrower or other Group Member and enforcement proceedings shall have
been effectively stayed or enjoined pending completion of such appeal;
(j) the Borrower shall fail to deliver any notice required to be
delivered to the Administrative Agent and the Banks pursuant to any of Sections
5.06, 5.08, 5.09 and 5.10 within ten (10) days after the event giving rise to
the obligation to give notice thereunder;
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(k) there shall occur any Change of Control;
(l) any Reportable Event shall have occurred with respect to a Plan,
and thirty (30) days after notice thereof shall have been given to the Borrower
by the Administrative Agent or any Bank, (i) such Reportable Event shall still
exist and (ii) the sum (determined as of the date of occurrence of such
Reportable Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an Reportable Event described in
clauses (iii) through (vi) of the definition of Reportable Event shall have
occurred and then exist, the liability related thereto) exceeds $5,000,000;
(m) the Borrower, any of the Group Members or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower, any of the Group Members or any ERISA Affiliate as Withdrawal
Liability (determined as of the date of such notification), exceeds $5,000,000;
(n) the Borrower or any other Group Member shall challenge the validity
and binding effect of any provision of any Loan Document after delivery thereof
or shall state in writing its intention to make such a challenge; or
(o) a court of competent jurisdiction shall declare any provision of
any Loan Document to be invalid or non-binding.
SECTION 8.02.00 Exercise of Remedies.
Upon the occurrence of an Event of Default and in every such event and
at any time thereafter during the continuance of such event, the Administrative
Agent, upon written request from the Majority Banks, shall by written notice to
the Borrower, take one or more of the following actions, at the same or
different times:
(a) terminate the Commitments; and
(b) declare the Notes to be forthwith due and payable, whereupon the
Notes shall become forthwith due and payable, both as to principal and interest
(which, after such declaration, shall bear interest as provided in Section
1.06(a)), without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein or in the Notes to the contrary notwithstanding; and
(c) demand that the Borrower deposit with the Administrative Agent an
amount in cash or other immediately available funds in an amount equal to the
aggregate stated amount of Letters of Credit outstanding at such time, which
shall be held by the Administrative Agent in a segregated account as collateral
security exclusively for the satisfaction of the LOC Obligations, and the
Borrower hereby grants to the Administrative Agent for the benefit of the
Issuing Bank a security interest in such account and the proceeds thereof.
Notwithstanding the foregoing, if an Event of Default specified in paragraph (f)
or (g) of Section 8.01 occurs with respect to the Borrower or any other Group
Member, the Commitments shall
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automatically terminate and the Notes shall become immediately due and payable,
both as to principal and interest, without any action by any Bank or the
Administrative Agent and without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in the Notes to the contrary notwithstanding. The
Administrative Agent shall further be entitled to exercise, for the benefit of
the Banks, all of the rights and remedies available under the Loan Documents and
applicable law.
ARTICLE IX
THE AGENT
SECTION 9.01.00 Appointment, Powers and Immunities.
(a) Each Bank hereby irrevocably appoints and authorizes the
Administrative Agent to act as its agent under this Agreement and the other Loan
Documents with such powers and discretion as are specifically delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
9.05 and the first sentence of Section 9.06 hereof shall include its affiliates
and its own and its affiliates' officers, directors, employees, and agents): (i)
shall not have any duties or responsibilities except those expressly set forth
in this Agreement and shall not be a trustee or fiduciary for any Bank; (ii)
shall not be responsible to the Banks for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Loan Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability, or sufficiency of
any Loan Document, or any other document referred to or provided for therein or
for any failure by the Borrower or any other Person to perform any of its
obligations thereunder; (iii) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by the Borrower or any other Group Member or the
satisfaction of any condition or to inspect the property (including the books
and records) of the Borrower or any other Group Member; (iv) shall not be
required to initiate or conduct any litigation or collection proceedings under
any Loan Document; and (v) shall not be responsible for any action taken or
omitted to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct. The Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care.
(b) Each Bank hereby irrevocably designates First Union National Bank
as Syndication Agent and SunTrust Bank as Documentation Agent. The Syndication
Agent and the Documentation Agent, in such capacities, shall have no duties or
obligations whatsoever under this Agreement or any other Loan Document or any
other document or any matter related hereto or thereto, but shall nevertheless
be entitled to all the indemnities and other protection afforded to the
Administrative Agent under this Article IX.
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SECTION 9.02.00 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telecopy) believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for the Borrower or any other Group Member ), independent
accountants, and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts a Commitment Transfer Supplement executed in accordance
with Section 10.12 hereof. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding on all of the Banks; provided, however, that the Administrative Agent
shall not be required to take any action that exposes the Administrative Agent
to personal liability or that is contrary to any Loan Document or applicable law
or unless it shall first be indemnified to its satisfaction by the Banks against
any and all liability and expense which may be incurred by it by reason of
taking any such action.
SECTION 9.03.00 Defaults.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the
Administrative Agent has received written notice from a Bank or the Borrower
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent receives such a
notice of the occurrence of a Default or Event of Default, the Administrative
Agent shall give prompt notice thereof to the Banks. The Administrative Agent
shall (subject to Section 9.01 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Majority
Banks, provided, that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interest of the Banks.
SECTION 9.04.00 Rights as Bank.
With respect to its Commitment and the Loans made by it, Bank of
America (and any successor acting as Administrative Agent) in its capacity as a
Bank hereunder shall have the same rights and powers hereunder as any other Bank
and may exercise the same as though it were not acting as the Administrative
Agent, and the term "Bank" or "Banks" shall, unless the context otherwise
indicates, includes the Administrative Agent in its individual capacity. Bank of
America (and any successor acting as Administrative Agent) and its affiliates
may (without having to account therefor to any Bank) accept deposits from, lend
money to, make investments in, provide services to, and generally engage in any
kind of lending, trust, or other business with the Borrower or any other Group
Member as if it were not acting as Administrative Agent, and Bank of America
(and any successor acting as Administrative Agent) and its affiliates may accept
fees
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and other consideration from the Borrower and any other Group Member for
services in connection with this Agreement or otherwise without having to
account for the same to the Banks.
SECTION 9.05.00 Indemnification.
The Banks agree to indemnify the Administrative Agent (to the extent
not reimbursed under Section 10.03 hereof, but without limiting the obligations
of the Borrower under such Section) ratably in accordance with their respective
Commitments, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including attorneys'
fees), or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent (including by any
Bank) in any way relating to or arising out of any Loan Document or the
transactions contemplated thereby or any action taken or omitted by the
Administrative Agent under any Loan Document; provided that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any costs or expenses
payable by the Borrower under Section 10.03, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrower. The agreements contained in this Section shall survive payment in
full of the Loans and all other amounts payable under this Agreement.
SECTION 9.06.00 Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and the other Group Members and decision to enter into this Agreement
and that it will, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under the Loan Documents. Except for notices,
reports, and other documents and information expressly required to be furnished
to the Banks by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning the affairs, financial condition, or business of
the Borrower and the other Group Member that may come into the possession of the
Administrative Agent or any of its affiliates.
SECTION 9.07.00 Resignation of Administrative Agent.
The Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Borrower. Upon any such resignation, the Majority
Banks shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within thirty (30) days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent which shall be a commercial bank organized under the laws
of the United States of America
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having combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor,
such successor shall thereupon succeed to and become vested with all the rights,
powers, discretion, privileges, and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provision of this Article IX shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
SECTION 9.08.00 Benefit of Article IX.
The agreements contained in this Article IX are solely for the benefit
of the Administrative Agent and the Banks, and are not for the benefit of or to
be relied upon by, the Borrower or any third party.
SECTION 9.09.00 Administrative Agent's Compensation.
The Borrower shall pay to the Administrative Agent solely for the
Administrative Agent's account the fees specified in the Administrative Agent's
Fee Letter on the dates specified therein.
ARTICLE X
MISCELLANEOUS
SECTION 10.01.00 Modification.
All modifications, consents, amendments or waivers of any provision of
any Loan Document, or consent to any departure by the Borrower therefrom shall
be effective only if the same shall be in writing and concurred in by the
Majority Banks and then shall be effective only in the specific instance and for
the purpose for which given; provided, however, that (a) no waiver or release of
guarantors under the Guaranty Agreement and no change in the provisions of
Articles I (other than Section 1.05(d)) and III, this Section 10.01 or in the
definition of the Majority Banks shall be effective absent the written
concurrence of all of the Banks, (b) no change in the provisions of Section
1.05(d) shall be effective absent the written concurrence of Banks holding more
than 85% of the aggregate Commitments of all Banks, (c) no change in the
provisions of Article IX shall be effective absent the written concurrence of
the Administrative Agent, (d) no change in the provisions hereof relating to
Swingline Loans shall be effective absent the written concurrence of the
Swingline Bank and (e) no change in the provisions hereof relating to Letter of
Credit shall be effective absent the written concurrence of the Issuing Bank.
SECTION 10.02.00 Waiver.
No failure to exercise, and no delay in exercising, on the part of any
Bank, any right hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right. The rights of the Banks hereunder and under the
Loan Documents shall be in addition to all other rights provided by law.
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No modification or waiver of any provision of this Agreement, the Notes or any
Loan Documents, nor consent to departure therefrom, shall be effective unless in
writing and no such consent or waiver shall extend beyond the particular case
and purpose involved. No notice or demand given in any case shall constitute a
waiver of the right to take other action in the same, similar or other instances
without such notice or demand.
SECTION 10.03.00 Expenses; Indemnification.
(a) The Borrower agrees to pay on demand all reasonable costs and
expenses of the Administrative Agent in connection with the syndication,
preparation, execution, delivery, administration, modification, and amendment of
this Agreement, the other Loan Documents, and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent (including the reasonable
allocated cost of internal counsel) with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under
the Loan Documents. The Borrower further agrees to pay on demand all reasonable
costs and expenses of the Administrative Agent and the Banks, if any (including,
without limitation, reasonable attorneys' fees and expenses and the reasonable
allocated cost of internal counsel), in connection with the enforcement (whether
through negotiations, legal proceedings, or otherwise) of the Loan Documents and
the other documents to be delivered hereunder.
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Bank and each of their affiliates and their
respective officer, directors, employees, agents, and advisors (each, an
"Indemnified Party") from and against any and all claims damages, losses,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith) the
Loan Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such claim,
damage, loss, liability, cost, or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation, or other proceeding to which the indemnity in this
Section 10.03 applies, such indemnity shall be effective whether or not such
investigation, litigation, or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower agrees not to
assert any claim against the Administrative Agent, any Bank, any of their
affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 10.03 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
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SECTION 10.04.00 Notices.
All notices and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall (unless otherwise indicated) be given or made by telecopy or in
writing and telecopied, mailed or delivered to the intended recipient at the
address of such party as follows:
(a) The Borrower:
FLORIDA EAST COAST INDUSTRIES, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
With copies of such notice to:
FLORIDA EAST COAST INDUSTRIES, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
Sidley & Austin
Bank ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Gold, Esq.
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
(b) The Administrative Agent or any Bank at its address shown below its
name on the signature pages hereof.
With a copy of such notice to:
Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier, personally
delivered or, in the case of a mailed
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notice, upon receipt, in each case given or addressed as aforesaid. Any such
notice or communication that is delivered by mail shall be presumed to have been
received three Business Days after the day it is mailed. Unless otherwise
indicated, notices received after 5:00 p.m. Charlotte, North Carolina time on
any day from the Borrower pursuant to Article I shall be deemed for the purposes
of such Article to have been given by the Borrower on the next succeeding
Business Day. Any party may change its address for purposes of this Agreement by
giving notice of such change to the other parties pursuant to this Section
10.04.
SECTION 10.05.00 Governing Law.
This Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of New York (including, without
limitation, Sections 5-1401 and 5-1402 of the New York General Obligations Law),
but excluding, to the fullest extent permitted by applicable law, all other
choice of law and conflict of law rules.
SECTION 10.06.00 Invalid Provisions.
If any provision of any Loan Document is held to be illegal, invalid or
unenforceable under present or future laws during the term of this Agreement,
such provision shall be fully severable; such Loan Document shall be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of such Loan Document; and the remaining provisions of such
Loan Document shall remain in full force and effect and shall not be affected by
the illegal, invalid or unenforceable provision or by its severance from such
Loan Document. Furthermore, in lieu of each such illegal, invalid or
unenforceable provision shall be added as part of such Loan Document a provision
mutually agreeable to the Borrower, the Administrative Agent and the Majority
Banks as similar in terms to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable. In the event the Borrower,
the Administrative Agent, and the Majority Banks are unable to agree upon a
provision to be added to the Loan Document within a period of ten (10) Business
Days after a provision of the Loan Document is held to be illegal, invalid or
unenforceable, then a provision acceptable to the Administrative Agent and the
Majority Banks as similar in terms to the illegal, invalid or unenforceable
provision as is possible and be legal, valid and enforceable shall be added
automatically to such Loan Document. In either case, the effective date of the
added provision shall be the date upon which the prior provision was held to be
illegal, invalid or unenforceable.
SECTION 10.07.00 Nonliability of Banks.
The relationship between the Borrower and the Banks is, and shall at
all times remain, solely that of borrower and lenders, and the Banks and the
Administrative Agent neither undertake nor assume any responsibility or duty to
the Borrower to review, inspect, supervise, pass judgment upon, or inform the
Borrower of any matter in connection with any phase of the Borrower's business,
operations, or condition, financial or otherwise. The Borrower shall rely
entirely upon its own judgment with respect to such matters, and any review,
inspection, supervision, exercise of judgment, or information supplied to the
Borrower by any Bank or the Administrative Agent in connection with any such
matter is for the protection of the Banks and the Administrative Agent, and
neither the Borrower nor any third party is entitled to rely thereon.
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57
SECTION 10.08.00 Binding Effect and Assignability.
The Loan Documents shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent and the Banks and their respective
successors, assigns and legal representatives; provided, however, that (a) the
Borrower may not, without the prior written consent of the Administrative Agent
and the Banks, assign any rights, powers, duties or obligations thereunder and
(b) the Banks may only assign their interests pursuant to Section 10.12 below.
SECTION 10.09.00 Entirety; Conflicts.
The Loan Documents embody the entire agreement between the parties and
supersede all prior agreements and understandings, if any, relating to the
subject matter hereof and thereof. In the event of any conflict in the
provisions of this Agreement with the provisions of any other Loan Document, the
provisions of this Agreement shall govern.
SECTION 10.10.00 Headings, etc..
Article and Section headings and captions and the table of contents
hereto are for convenience of reference only and shall in no way affect the
interpretation of this Agreement.
SECTION 10.11.00 Survival.
All representations and warranties made by the Borrower herein shall
survive delivery of the Notes and the making of the Loans.
SECTION 10.12.00 Assignments and Participations.
(a) Each Bank may assign to one or more Eligible Assignees all or a
portion of its rights, obligations or rights and obligations under this
Agreement (including, without limitation, all or a portion of its Loans, its
Note, or its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Bank or an
assignment of all of a Bank's rights and obligations under this
Agreement, any such partial assignment shall be in an amount at least
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof;
(iii) each such assignment by a Bank shall be of a constant,
and not varying, percentage of all of its rights and obligations under
this Agreement and the Note; and
(iv) the parties to such assignment shall execute and deliver
to the Administrative Agent for its acceptance a Commitment Transfer
Supplement in the form of Exhibit F hereto, together with any Note
subject to such assignment, and the assigning Bank shall pay to the
Administrative Agent a processing fee of $3,500.
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58
Upon execution, deliver, and acceptance of such Commitment Transfer Supplement,
the assignee thereunder shall be party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Bank hereunder and
the assigning Bank shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the assignee.
(b) The Administrative Agent shall maintain at its address referred to
in Section 10.04 a copy of each Commitment Transfer Supplement delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and the
Borrower, Administrative Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower or any Bank at
any reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of a Commitment Transfer Supplement executed by
the parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Administrative Agent shall, if such
Commitment Transfer Supplement has been completed and is in substantially the
form of Exhibit F hereto, (i) accept such Commitment Transfer Supplement, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the parties thereto.
(d) Each Bank may sell participations to one or more Persons in all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and its Loans); provided, however, that (i) such
Bank's obligations under this Agreement shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the participant shall be entitled to the benefit of
the yield protection provisions contained in Section 1.11 and the right of
set-off contained in Section 10.17, and (iv) the Borrower shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement, and such Bank shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans and its Note and
to approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such Loans or
Note, extending any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Note, or extending its Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Bank may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Bank from its obligations hereunder.
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59
(f) Any Bank may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants).
(g) At no time shall there be more than twenty (20) Banks extending
Commitments pursuant to the terms of this Agreement.
SECTION 10.13.00 No Third Party Beneficiary.
Without limiting the effect of Sections 10.08, 10.12 and 10.17, the
parties do not intend the benefits of this Agreement to inure to any third
party, nor shall this Agreement be construed to make or render the
Administrative Agent or the Banks liable to any materialman, supplier,
contractor, subcontractor, purchaser or lessee of any property owned by the
Borrower, or for debts or claims accruing to any such persons against the
Borrower. Notwithstanding anything contained herein or in the Notes, or in any
other Loan Document, or any conduct or course of conduct by any or all of the
parties hereto, before or after signing this Agreement nor any other Loan
Document shall be construed as creating any right, claim or cause of action
against the Administrative Agent or the Banks, or any of their officers,
directors, agents or employees, in favor of any materialman, supplier,
contractor, subcontractor, purchaser or lessee of any property owned by the
Borrower, nor to any other person or entity other than the Borrower.
SECTION 10.14.00 WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGENT, EACH BANK AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE NOTES OR ANY
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (VERBAL
OR WRITTEN), OR ACTIONS OF THE AGENT, ANY BANK OR THE BORROWER. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING INTO THIS AGREEMENT.
SECTION 10.15.00 Multiple Counterparts.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
SECTION 10.16.00 Disclosures.
The Administrative Agent and each Bank may disclose to, and exchange
and discuss with, any other Person (the Administrative Agent, each Bank and each
such other Person being hereby irrevocably authorized to do so) any information
concerning the Borrower or any other Group Member (whether received by the
Administrative Agent, the Bank or such Person in connection with or pursuant to
this Agreement or otherwise) as may be required by applicable law or for the
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purpose of protecting, preserving, exercising or enforcing any rights hereunder
or under the Notes, or consulting with respect to any such rights or any rights
of the Borrower.
SECTION 10.17.00 Right of Setoffs; Adjustments.
(a) Upon the occurrence and during the continuance of any Event of
Default, each Bank (and each of its affiliates) is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Bank
(or any of its affiliates) to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Bank, irrespective of whether
such Bank shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Bank agrees promptly to notify
the Borrower after any such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Bank may have.
(b) If any Bank (a "benefitted Bank") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Bank, if any, in respect of such other Bank's
Loans owing to it, or interest thereon, such benefited Bank shall purchase for
cash from the other Banks a participating interest in such portion of such other
Bank's Loans owing to it, or shall provide such other Banks with the benefits of
any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Bank to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Banks; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Borrower agrees that any Bank so purchasing a participation from a Bank pursuant
to this Section 10.17 may, to the fullest extent permitted by law, exercise all
of its rights of payment (including the right of set-off) with respect to such
participation as fully as if such person were the direct creditor of the
Borrower in the amount of such participation.
SECTION 10.18.00 Repayments in Bankruptcy.
In the event any amount of the Debt of the Borrower to the
Administrative Agent and the Banks hereunder is paid by the Borrower and because
of bankruptcy or other laws relating to creditors' rights the Administrative
Agent or the Banks repay any such amounts to the Borrower or to any trustee,
receiver or otherwise, then the amounts so repaid shall again become part of the
Obligations payable by the Borrower.
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ARTICLE XI
DEFINITIONS
SECTION 11.01.00 Definitions.
For purposes of this Agreement, unless the context otherwise requires,
capitalized terms shall have the respective meanings assigned to them in Exhibit
A hereto.
SECTION 11.02.00 Other Definitional Provisions.
(a) Except as otherwise specified herein, all references herein (i) to
any Person shall be deemed to include such person's, successors, transferees and
assignees, but only, in the case of transferees and assignees of the Borrower,
the Administrative Agent and the Banks, to the extent the applicable transfer or
assignment complies with the provisions of this Agreement, (ii) to any
applicable law defined or referred to herein shall be deemed references to such
applicable law as the same may have been or may be amended or supplemented from
time to time and (iii) to any Contract defined or referred to herein shall be
deemed references to such 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) When used in this Agreement, the words "herein", "hereof", and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "section", "schedule"
and "exhibit" shall refer to Sections of and Schedules and Exhibits to this
Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and vice
versa.
(d) All terms defined in this Agreement shall have the defined meanings
when used in the Notes, and except as otherwise expressly stated therein, any
certificate, opinion or other Loan Document delivered pursuant hereto or
referred to herein.
SECTION 11.03.00 Accounting Matters.
Unless otherwise specified herein, all accounting determinations
hereunder and all computations utilized by the Borrower in complying with the
covenants contained herein shall be made, all accounting terms used herein shall
be interpreted, and all financial statements required to be delivered hereunder
shall be prepared, in accordance with Generally Accepted Accounting Principles,
except, in the case of such financial statements, for departures from Generally
Accepted Accounting Principles that may from time to time be approved in writing
by the independent certified accountants who are at the time in accordance with
Section 5.05 reporting on the Borrower's financial statements.
{SIGNATURES BEGIN ON THE FOLLOWING PAGE}
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers as of the day and year first
above written.
FLORIDA EAST COAST INDUSTRIES, INC.,
as Borrower
By:__________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Financial Officer
BANK OF AMERICA, N.A., as Administrative Agent
By:__________________________
▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Amounts Percentage
------- ----------
BANK OF AMERICA, N.A.,
as Bank, Swingline Bank and Issuing Bank
$75,000,000 20% By: ______________________
▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
FIRST UNION NATIONAL BANK,
as Syndication Agent and Bank
$60,000,000 16% By: ______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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SUNTRUST BANK,
as Documentation Agent and Bank
$60,000,000 16% By: ______________________
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
WACHOVIA BANK, N.A.,
as Bank
$50,000,000 13.33333333% By: ______________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
UNION PLANTERS BANK,
as Bank
$30,000,000 8% By: ______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FLEET NATIONAL BANK,
as Bank
$30,000,000 8% By: ______________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mailstop MADE10008D
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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LASALLE BANK NATIONAL ASSOCIATION,
as Bank
$30,000,000 8% By: ______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
First Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BNP PARIBAS,
as Bank
$15,000,000 4% By: ______________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director
By: ______________________
▇▇▇▇▇▇▇ ▇▇▇▇
Central Region Manager
Address:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
REPUBLIC BANK,
as Bank
$10,000,000 2.66666667% By: ______________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
Address:
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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COMPASS BANK,
as Bank
$10,000,000 2.66666667% By: _________________________
C. French ▇▇▇▇▇▇▇▇▇, Jr.
Senior Vice President
Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ISRAEL DISCOUNT BANK,
as Bank
$5,000,000 1.33333333% By: ______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Address:
2875 Northeast ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT A
DEFINITIONS
This is Exhibit A to that certain Credit Agreement dated as of March
22, 2001, among FLORIDA EAST COAST INDUSTRIES, INC., the Banks listed therein,
BANK OF AMERICA, N.A., , as Administrative Agent for the Banks, and as Swingline
Bank and Letter of Credit Issuing Bank, FIRST UNION NATIONAL BANK, as
Syndication Agent, and SUNTRUST BANK, as Documentation Agent for the Banks (the
"Agreement"). When used in this Exhibit, the words "herein", "hereof", and
"hereunder" and words of similar import shall refer to the Agreement, and the
words "section", "schedule" and "exhibit" shall refer to Sections of and
Schedules and Exhibits to the Agreement, unless otherwise specified.
"Acquisition" shall mean any transaction, or series of related
transactions, by which the Borrower and/or any other Group Member directly or
indirectly (a) acquires all or substantially all of the assets of any Person or
division thereof, whether through purchase of assets, merger or otherwise, (b)
acquires (in one transaction or as the most recent transaction in a series of
transactions) control of at least a majority in ordinary voting power of the
securities of a Person which have ordinary voting power for the election of
directors or (c) otherwise acquires control of more than 50% of the voting
equity interests in any such Person.
"Adjusted Eurodollar Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
Loan for such Interest Period by (b) one minus the Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"Administrative Agent" shall have the meaning assigned to such term in
the preamble hereof, and any successor thereto pursuant to Article IX hereof.
"Administrative Agent's Fee Letter" means the letter agreement between
the Administrative Agent and the Borrower dated as of January 24, 2001, relating
to the Administrative Agent's compensation for services as administrative agent
hereunder.
"Administrative Agent's Fees" shall have the meaning assigned to such
term in Section 1.05(b) hereof.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly, through one or more intermediaries, controlling,
controlled by, or under common control with, such first Person. For the purposes
of this definition, "control" (including the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting shares or by contract or otherwise. Unless otherwise
specified, "Affiliate" means an Affiliate of the Borrower.
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67
"Agreement" means this Credit Agreement among the Borrower, the Banks
and the Administrative Agent, dated as of March 22, 2001, as the same may be
amended, modified, supplemented or restated from time to time.
"Applicable Commitment Fee Percentage" means the percentage per annum
to be used to calculate the Commitment Fee payable to the Banks in respect of
the unused portion of the Commitments. For the period commencing on the Closing
Date and ending on the third Business Day after the Administrative Agent's
receipt of quarterly financial statements and a Compliance Certificate for the
period ending March 31, 2001, the Applicable Commitment Fee Percentage shall be
0.275% per annum. Thereafter, the Applicable Commitment Fee Percentage shall be
determined based upon the Leverage Ratio as of the last day of the fiscal
quarter most recently ended as follows:
Leverage Applicable Commitment Fee
Ratio Percentage
-------- -------------------------
Less than 1.25x 0.200%
Less than 1.75x but greater than or 0.225%
equal to 1.25x
Less than 2.25x but greater than or 0.275%
equal to 1.75x
Less than 2.75x but greater than or 0.325%
equal to 2.25x
Greater than or equal to 2.75x 0.375%
The ratio upon which a determination of "Applicable Commitment Fee Percentage"
is based shall be computed on the basis of the quarterly financial statements
and Compliance Certificate delivered by Borrower pursuant to Sections 5.06(a)
and (g). Changes in the Applicable Commitment Fee Percentage shall be effective
as of third Business Day after receipt by the Administrative Agent of such
financial statements and Compliance Certificate, provided that if such financial
statements and Compliance Certificate are not delivered on a timely basis, the
Applicable Commitment Fee Percentage shall be 0.375% until such financial
statements and Compliance Certificate are delivered. In the event that any
financial information provided by Borrower is subsequently determined to be
inaccurate and accurate information would have resulted in a higher Applicable
Commitment Fee Percentage, such higher Applicable Commitment Fee Percentage
shall be given effect retroactively and Borrower shall promptly pay to the
Administrative Agent for the benefit of the Banks such amount as is necessary to
give effect to such change.
"Applicable Lending Office" means, for each Bank and for each type of
Loan, the "Lending Office" of such Bank (or of an affiliate of such Bank)
designated for such type of Loan on the signature pages hereof or such other
office of such Bank (or an affiliate of such Bank) as such Bank may from time to
time specify to the Administrative Agent and the Borrower by
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written notice in accordance with the terms hereof as the office by which its
Loans of such type are to be made and maintained.
"Applicable Margin" means the annual rate of interest to be added to
the Base Rate, Floating LIBOR Rate and the Adjusted Eurodollar Rate, as
applicable, in calculating interest payable on the Notes. For the period
commencing on the Closing Date and ending on the third Business Day after the
Administrative Agent's receipt of quarterly financial statements and a
Compliance Certificate for the period ending March 31, 2001, the Applicable
Margin shall be 0% on Base Rate Loans, 1.125% on Eurodollar Rate Loans, and
1.125% on Swingline Loans. Thereafter, the Applicable Margin shall be determined
based upon the Leverage Ratio as of the last day of the fiscal quarter most
recently ended as follows:
Leverage Applicable Margin for Applicable Margin for Applicable Margin for
Ratio Eurodollar Loans Base Rate Loans Swingline Loans
----- ---------------- --------------- ---------------
Less than 1.25x 0.750% 0.000% 0.750 %
Less than 1.75x but greater than or 0.875% 0.000% 0.875 %
equal to 1.25x
Less than 2.25x but greater than or 1.125% 0.000% 1.125%
equal to 1.75x
Less than 2.75x but greater than or 1.375% 0.000% 1.375%
equal to 2.25x
Greater than or equal to 2.75x 1.625% 0.125% 1.625%
The ratio upon which a determination of "Applicable Margin" is based shall be
computed on the basis of the quarterly financial statements and Compliance
Certificate delivered by Borrower pursuant to Sections 5.06(a) and (g). Changes
in the Applicable Margin shall be effective as of third Business Day after
receipt by the Administrative Agent of such financial statements and Compliance
Certificate, provided that if such financial statements and Compliance
Certificate are not delivered on a timely basis, the Applicable Margin shall be
0.125% on Base Rate Loans, 1.625% on Eurodollar Rate Loans and 1.625% on
Swingline Loans until such financial statements and Compliance Certificate are
delivered. In the event that any financial information provided by Borrower is
subsequently determined to be inaccurate and accurate information would have
resulted in a higher Applicable Margin, such higher Applicable Margin shall be
given effect retroactively and Borrower shall promptly pay to the Administrative
Agent for the benefit of the Banks such amount as is necessary to give effect to
such change.
"Bank of America" shall mean Bank of America, N.A., and its successors.
"Banks" means the institutions indicated as Banks on the signature
pages hereof, and shall include, at such times as they shall become parties
hereto, purchasing Banks, if any.
"Base Rate" means, for any day, the rate per annum equal to the higher
of (a) the Federal Funds Rate for such day plus one-half of one percent (0.5%)
and (b) the Prime Rate for such day.
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Any change in the Base Rate due to a change in the Prime Rate or the Federal
Funds Rate shall be effective on the effective date of such change in the Prime
Rate or Federal Funds Rate.
"Base Rate Loan" shall mean a Loan on which interest accrues based on
the Base Rate in accordance with Article I.
"Borrower" shall have the meaning assigned to such term in the preamble
hereof.
"Borrower Group" means the Borrower, its current Subsidiaries, and any
future Subsidiary, successor or assign of any thereof, but specifically
excluding EPIK and International Transit.
"Business Day" means any day other than Saturday, Sunday or a day on
which banks are required or authorized to be closed for business in Charlotte,
North Carolina, and, with respect to any Eurodollar Loan, means any such
Business Day on which transactions are effected in deposits of U.S. Dollars in
the relevant interbank foreign currency deposits market and on which commercial
banks are open for domestic and international business (including dealings in
Dollar deposits) in the jurisdiction in which such interbank market is located.
"Capital Expenditure" means, for any period, expenditures (including
the aggregate amount of Capitalized Lease Obligations incurred during such
period) made by the Borrower or any of the Borrower Group to acquire or
construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs properly chargeable to current
operations) during such period.
"Capital Lease" means, as of any date, any lease of property, real or
personal, that would be capitalized on a balance sheet of the lessee prepared as
of such date in accordance with Generally Accepted Accounting Principles,
together with any other lease by such lessee that is in substance a financing
lease, including without limitation, any lease under which (a) such lessee has
or will have an option to purchase the property subject thereto at a nominal
amount or an amount less than a reasonable estimate of the fair market value of
such property as of the date such lease is entered into, or (b) the term of the
lease approximates or exceeds the expected useful life of the property leased
thereunder.
"Capitalized Lease Obligations" means all obligations of the Borrower
Group under Capital Leases.
"Capital Securities" means with respect to any Person that is (a) a
corporation, any shares of capital stock of such corporation, (b) a general or
limited partnership, any general or limited partnership interest of such
partnership, (c) a limited liability company, any stock or other membership or
ownership interests in such limited liability company, and also means any
security convertible into, or any option, warrant or other right to acquire, any
of the items described in clause (a), (b) or (c) above of such Person.
"Change of Control" means such time as:
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(i) any person or group (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act), other than The ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Testamentary Trust or The Nemours Foundation, has become,
directly or indirectly, the beneficial owner, by way of merger,
consolidation or otherwise, of 30% or more of the voting power of the
Voting Stock of the Borrower on a fully-diluted basis, after giving
effect to the conversion and exercise of all outstanding warrants,
options and other securities of the Borrower convertible into or
exercisable for Voting Stock of the Borrower (whether or not such
securities are then currently convertible or exercisable); or
(ii) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the Board
of Directors of the Borrower, together with any new members of such
Board of Directors whose election by such Board of Directors or whose
nomination for election by the stockholders of the Borrower was
approved by a vote of a majority of the members of such Board of
Directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority of the directors of the Borrower then in office.
"Closing Date" means March 22, 2001 or such later date on which the
conditions precedent to an initial advance hereunder are satisfied.
"Collateral" shall have the meaning assigned to such term in Section
2.01(a) hereof.
"Commitment" means, with respect to each Bank, the amount of the
Commitment of such Bank to make Loans as set forth opposite such Bank's name on
the signature pages hereof or on the most recent Commitment Transfer Supplement
to which it is a party, as the same may be reduced from time to time pursuant to
this Agreement.
"Commitment Fee" shall have the meaning assigned to such term in
Section 1.05 hereof.
"Commitment Termination Date" means the earlier to occur of (i) March
31, 2004, or such later anniversary thereof as the Commitment may have been
extended by the Banks pursuant to Section 1.18, provided that such Commitment
Termination Date may not extend beyond March 31, 2006, or (ii) such earlier date
and time on which the Commitments are terminated pursuant to Section 1.05(e) or
Article VIII.
"Commitment Transfer Supplement" means an agreement among the
Administrative Agent, a Bank, the Borrower and a purchasing Bank providing for
the transfer of the Loans and the Commitment of such Bank (or any prior
purchasing Bank) to a purchasing Bank, which shall be in form and substance
satisfactory to the Borrower, the Administrative Agent, such transferring Bank
and purchasing Bank and shall set forth the reallocations of the Commitment and
the outstanding principal amounts of the Loans by each Bank.
"Compliance Certificate" means a certificate of the chief financial
officer of the Borrower in the form of Exhibit G hereto setting forth
computations in reasonable detail as of the date thereof of compliance with
Article VII.
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"Consolidated Group" means, as of any date, all Affiliates of the
Borrower included as of such date in the consolidated financial statements of
the Borrower.
"Contract" means an indenture, agreement (other than this Agreement),
other contractual restriction, lease, instrument (other than the Notes),
certificate or Organizational Document.
"Controlled Group" means (a) the controlled group of corporations as
defined in Section 1563 of the Internal Revenue Code or (b) the group of trades
or businesses under common control as defined in Section 414(c) of the Internal
Revenue Code of which the Borrower is a part or may become a part.
"Conversion Date" means the date on which any Loan is converted from a
Base Rate Loan or a Eurodollar Loan to a Loan of a different type pursuant to
Section 1.07 hereof.
"Debt" means, with respect to any Person or consolidated group of
Persons, and without duplication: (a) all obligations of such Person or
consolidated group of Persons for borrowed money or the deferred purchase price
of goods or services (except trade payables in the ordinary course of business);
(b) all obligations of such Person or consolidated group of Persons evidenced by
promissory notes, (c) all obligations of such Person or consolidated group of
Persons for long term debt and bonds (excluding defeased obligations), (d) all
obligations of such Person or consolidated group of Persons in respect of any
Guaranty (other than endorsements of checks for deposit in the ordinary course
of business), (e) all obligations of such Person or consolidated group of
Persons in respect of any Capital Lease, (f) all obligations, indebtedness and
liabilities, including any refinancings thereof, secured by any lien or any
security interest on any property or assets of such Person or consolidated group
of Persons, and (g) all Mandatorily Redeemable Securities of such Person or
consolidated group of Persons valued in accordance with Generally Accepted
Accounting Principles. For clarification, letter of credit reimbursement
obligations that are in the nature of a guaranty, stand-by or back-stop for an
otherwise permitted obligation and are repayable on demand shall not be
considered Debt, but letter of credit reimbursement obligations that guaranty,
stand-by or back-stop obligations in the nature of Debt or that provide for
terms of repayment or reimbursement other than on a demand basis shall be
considered Debt.
"Default" means an Event of Default or any condition or event that with
the giving of notice or the lapse of time or both would become an Event of
Default.
"Distribution" means (a) any payment by the Borrower or any other Group
Member to any shareholder or any other Affiliate of the Borrower or such other
Group Member or to any other Person whether in respect of an equity interest in
the Borrower or such other Group Member or in respect of Debt owed by the
Borrower or such other Group Member to such shareholder, Affiliate or other
Person or otherwise, (b) any direct or indirect payment by the Borrower or any
other Group Member on or with respect to Capital Securities of the Borrower or
such other Group Member, (c) any purchase or other retirement by the Borrower or
any other Group Member of Capital Securities of the Borrower or any other Group
Member, (d) the declaration or payment of any dividend on or in respect of any
Capital Securities or evidence of equity interest of the Borrower or any other
Group Member, other than dividends payable solely in additional Capital
Securities of the Person involved, and (e) any other distribution on or in
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respect of any Capital Securities or evidence of equity interest of the Borrower
or any other Group Member.
"Dollars" and the sign "$" shall refer to lawful currency of the United
States of America.
"EBITDA" means, for any Person or consolidated group of Persons, for
any fiscal period, the sum (without duplication) of (i) Net Income for such
period, plus (ii) Income Tax Expense deducted in determining such Net Income,
plus (iii) the Interest Expense deducted in determining such Net Income, plus
(iv) the aggregate amount of depreciation expense and amortization expense for
such period to the extent deducted in determining Net Income, determined, and in
the case of a consolidated group of Persons, determined on a consolidated basis
for such Persons, in accordance with Generally Accepted Accounting Principles.
"Eligible Assignee" means (i) a Bank; (ii) an affiliate of a Bank; and
(iii) any other Persons approved by the Administrative Agent and, unless an
Event of Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 10.12, the Borrower, such approvals not to
be unreasonably withheld or delayed and such approval to be deemed given by the
Borrower if no objection is received by the assigning Bank and the
Administrative Agent from the Borrower within two Business Days after notice of
such proposed assignment has been provided by the assigning Bank to the
Borrower; provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means all laws relating to Hazardous Waste
disposal, Toxic Substances, or environmental conservation.
"EPIK" shall mean EPIK Communications Incorporated, a Florida
corporation formerly known as FEC Telecom.
"EPIK Capitalization Plan" means the issuance of debt and/or equity
securities by EPIK to the Borrower in exchange for contributions of cash by the
Borrower and/or telecommunications assets of the Borrower Group.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, together with all regulations and official rulings and interpretations
issued pursuant thereto.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same Controlled Group.
"Eurodollar Loan" means a Loan that bears interest at rates based upon
the Adjusted Eurodollar Rate in accordance with Article I.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "Eurodollar Rate" shall mean, for any Eurodollar
Loan for any Interest Period therefor,
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the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Event of Default" shall have the meaning assigned to such term in
Article VIII.
"Extension Request" shall have the meaning assigned to such term in
Section 1.18.
"FECR " means Florida East Coast Railway L.L.C., a Florida limited
liability company.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Administrative
Agent (in its individual capacity) on such day on such transactions as
determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System and any successor agency.
"Fixed Charge Coverage Ratio" shall mean, at any date, the ratio of (a)
Group EBITDA for the four fiscal quarters ending on such date, to (b) the sum
for the four fiscal quarters ending on such date of (i) scheduled payments of
principal of Group Debt during such quarters, plus (ii) Group Interest Expense,
provided, however, that Group Interest Expense shall exclude any Group Interest
Expense from any particular project of Flagler the Non-recourse Debt of which
are excluded from Group Debt, plus, (iii) the amount of ordinary dividends and
distributions paid in cash by the Borrower Group (other than any such dividend
or distribution payments made to the Borrower Group) during such calculation
period, in each case determined for the Borrower Group on a consolidated basis
in accordance with Generally Accepted Accounting Principles; plus (iv) Group
Income Tax Expense paid in cash by the Borrower Group during such quarters,
plus, (v) the amount of Capital Expenditures during such quarters required to
sustain (but not expand) the ongoing operations of the Borrower Group.
"Flagler" means Flagler Development Company, a Florida corporation
formerly known as Gran Central Corporation.
"Flagler Free Cash Flow" means, for any period of determination, the
sum of the amounts, from each project of Flagler financed with Non-recourse
Debt, by which (i) any positive EBITDA with respect to each such project exceeds
(ii) the amount of cash interest and principal payments
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paid by Flagler during such period and the amount of reserves required by the
lender on such Non-recourse Debt with respect to such period.
"Floating LIBOR Rate" means a fluctuating rate of interest equal to the
one month rate of interest (rounded upwards, if necessary to the nearest 1/100
of 1%) appearing on Telerate Page 3750 (or any successor page) as the one month
London interbank offered rate for deposits in U.S. Dollars at approximately
11:00 a.m. (London time) on each Business Day prior to the Commitment
Termination Date, as adjusted from time to time in the Administrative Agent's
sole discretion for then applicable reserve requirements, deposit insurance,
assessment rates and other regulatory costs. The Floating LIBOR Rate so
determined shall remain in effect until the next Business Day. If for any reason
such rate is not available, the term "Floating LIBOR Rate" shall mean the
fluctuating rate of interest equal to the one month rate of interest (rounded
upwards, if necessary to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the one month London interbank offered rate for deposits in U.S.
Dollars at approximately 11:00 a.m. (London time) on each Business Day of each
calendar month prior to the Commitment Termination Date, as adjusted from time
to time in the Administrative Agent's sole discretion for then applicable
reserve requirements, deposit insurance, assessment rates and other regulatory
costs; provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such rates.
"Telerate Page 3750" means the British Bankers Association Libor Rates
(determined as of 11:00 a.m. London time) that are published by Bridge
Information Systems, Inc.
"Foreign Bank" shall mean any Bank that is organized under the laws of
a jurisdiction other than that of the Borrower. For purposes of this definition,
the United States of America or any State thereof or the District of Columbia
shall constitute one jurisdiction.
"FRA" means the Federal Railroad Administration or any successor agency
thereto.
"Generally Accepted Accounting Principles" means those generally
accepted accounting principles and practices that are recognized as such by the
American Institute of Certified Public Accountants acting through its Accounting
Principles Board or by the Financial Accounting Standards Board or through other
appropriate boards or committees thereof and that are consistently applied for
all periods after the date of the most recent balance sheet of the Borrower
referred to in Section 5.06 so as to properly reflect the financial condition,
and the results of operations and cash flows, of the Consolidated Group, except
that any accounting principle or practice required to be changed by the
Accounting Principles Board or Financial Accounting Standards Board (or other
appropriate board or committee of such Boards) in order to continue as a
generally accepted accounting principle or practice may so be changed. In the
event of a change in Generally Accepted Accounting Principles, the Banks and the
Borrower will thereafter negotiate in good faith to revise any covenants of this
Agreement affected by such change in order to make such covenants consistent
with Generally Accepted Accounting Principles then in effect, and until such
negotiations are complete, Borrower's compliance with the terms and conditions
of this Agreement shall be determined solely with reference to Generally
Accepted Accounting Principles in effect before such change.
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"Global Debt" means, at any time, the sum of Group Debt, plus Debt of
EPIK at such time determined on a consolidated basis.
"Global EBITDA" means, for any fiscal period of the Borrower, the sum
of Group EBITDA, plus EBITDA of EPIK for such period.
"Global Leverage Ratio" means, at any time, the ratio of (a) Global
Debt at such time to (b) Global EBITDA for the four quarters most recently ended
at or before such time and for which financial statements have been delivered
pursuant to Section 5.06(a).
"Governmental Authority" means (a) with respect to the Borrower and the
other Group Members, any government (or any political unit thereof), court,
bureau, agency or other governmental authority having or claiming jurisdiction
over the Borrower or other Group Member or any of their respective businesses,
operations or properties and (b) with respect to the Administrative Agent, the
Banks and their Affiliates, the Federal Reserve Board, the Comptroller of the
Currency, any state banking regulator or any other government (or any political
unit thereof), court, bureau, agency or other governmental authority having or
claiming jurisdiction over the Administrative Agent, such Bank or their
Affiliates or any of their respective businesses, operations or properties.
"Group Debt" means Debt of the Borrower Group determined on a
consolidated basis, but (x) excludes all Non-recourse Debt of Flagler and (y)
includes all Debt consisting of recourse obligations of Flagler.
"Group EBITDA" means, for any fiscal period of the Borrower, the EBITDA
of the Borrower Group minus (i) with respect to each project of Flagler financed
by Non-recourse Debt, the sum of the amounts of any positive EBITDA with respect
to each such project, plus (ii) the lesser of (A) 50% of Flagler Free Cash Flow
and (B) 10% of EBITDA of the Borrower Group for such period.
"Group Interest Expense" means, for any period, Interest Expense of the
Borrower Group.
"Group Income Tax Expense" means, for any period, the Income Tax
Expense of the Borrower Group.
"Group Member" means each member of the Borrower Group.
"Group Net Income" means, for any period, the Net Income of the
Borrower Group for such period.
"Group Net Worth" means, at any date, all amounts which is included
under stockholder's equity on the consolidated balance sheet of the Borrower
Group at such time; provided, that, in any event, such amounts are to be net of
amounts carried on the consolidated financial statements of the Borrower Group
for (a) net losses, (b) any writeup in the book value of any assets of the
Borrower Group resulting from a revaluation thereof subsequent to the date of
this Agreement, (c) treasury stock, (d) unamortized debt discount expense, (e)
any cost of investments in excess of
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the fair market value of net assets acquired at the time of acquisition by any
member of the Borrower Group, and (f) patents, patent applications, copyrights,
trademarks, tradenames, experimental or organizational expenses and other like
intangibles.
"Guaranty" of any Person means any contract, agreement or understanding
of such Person pursuant to which such Person provides for the payment of any
Debt of any other Person (the "Primary Obligor") or otherwise protecting, or
having the practical effect of protecting, the holder of such Debt against loss,
in any manner, whether directly or indirectly, contingent or otherwise,
including without limitation agreements: (a) to purchase such Debt or any
property constituting security therefor, (b) to advance or supply funds (i) for
the purchase or payment of such Debt, or (ii) to maintain net worth or working
capital or other balance sheet conditions, or otherwise to advance or make
available funds for the purchase or payment of such Debt, (c) to purchase
property, securities or service primarily for the purpose of assuring the holder
of such Debt of the ability of the Primary Obligor to make payment of the Debt,
or (d) otherwise to assure the holder of the Debt of the Primary Obligor against
loss in respect thereof.
"Guaranty Agreements" shall have the meaning assigned to such term in
Section 2.02 hereof.
"Hazardous Wastes" means all waste materials subject to regulation or
defined as such under the Comprehensive Environmental Response, Compensation,
and Liability Act as modified by the Superfund Amendments and Reauthorization
Act of 1986, the Resource Conservation and Recovery Act, the Clean Air Act, the
Federal Water Pollution Control Act, the Toxic Substance Control Act, or any
applicable state law and any other applicable federal, state or local laws and
their regulations now in force or hereafter enacted relating to hazardous waste
disposal or environmental conservation.
"Income Tax Expense" means, for any Person or consolidated group of
Persons, to the extent deducted in determining Net Income, for any period, the
income tax expense of such Person or Persons for such period, and in the case of
a consolidated group of Persons, determined on a consolidated basis for such
Persons, in accordance with Generally Accepted Accounting Principles.
"Indemnified Party" shall have the meaning assigned to such term in
Section 10.03(b) hereof.
"Insufficiency" shall mean, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Expense" means, for any Person or consolidated group of
Persons, to the extent deducted in determining Net Income, for any period,
interest expense of such Person or Persons for such period (including, without
limitation, the interest component of payments under Capital Leases, and the net
amounts payable (or minus the net amounts receivable) under any permitted Rate
Hedging Agreement accrued during such period (whether or not actually paid or
received during such period)), and in the case of a consolidated group of
Persons, determined on a
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consolidated basis for such Persons, in accordance with Generally Accepted
Accounting Principles.
"Interest Payment Date" means (a) with respect to each Eurodollar Loan,
the last day of each Interest Period for such Loan and, with respect to each
Eurodollar Loan for which the Interest Period is longer than 3 months, the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in each of the calendar months during the Interest Period that
is 3 or 6 months after commencement of the Interest Period for such Eurodollar
Loan and (b) with respect to each Base Rate Loan or Swingline Loan, the last day
of each calendar quarter and the Commitment Termination Date.
"Interest Period" means, as to any Eurodollar Loan, the period
commencing on the date of such Eurodollar Loan or continuation thereof and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the Borrower may elect; provided, however, that (x) if any
Interest Period would end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, with
respect to Eurodollar Loans only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (y) no Interest Period with respect to any Loan
shall end later than the Commitment Termination Date
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, and all regulations and official rulings and interpretations thereunder
or thereof.
"International Transit" means International Transit Logistics Services,
Inc., an Ohio corporation and wholly-owned subsidiary of the Borrower, which is
an inactive subsidiary with no operations, no material assets or liabilities and
which the Borrower intends to terminate.
"ISP98" shall have the meaning assigned to such term in Section
1.20(f).
"Issuing Bank" means Bank of America in its capacity as Issuing Bank
herein.
"Legal Requirement" means any requirement imposed upon any Bank by any
law of the United States of America or any other jurisdiction exercising or
claiming authority over such Bank, including without limitation, any regulation,
order, interpretation, ruling or official directive (whether or not having the
force of law) of the Federal Reserve Board, the Federal Deposit Insurance
Corporation (or any successor agency), or any other board or governmental or
administrative agency of the United States of America or such other
jurisdiction.
"Letter of Credit" means any Letter of Credit issued hereunder by Bank
of America for the account of the Borrower or other Group Member pursuant to
this Agreement.
"Leverage Ratio" means, at any time, the ratio of (a) Group Debt at
such time to (b) Group EBITDA for the four quarters most recently ended at or
before such time and for which financial statements have been delivered pursuant
to Section 5.06(a).
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"Lien" means any lien, mortgage, security interest, tax lien,
attachment, levy, charge, pledge, encumbrance, conditional sale or title
retention arrangement, or any other interest in property or assets (or the
income or profits therefrom) designed to secure the repayment of Debt, whether
consensual or nonconsensual and whether arising by agreement or under any
statute or law, or otherwise.
"Loan" means an amount advanced pursuant to Section 1.01 and a Loan of
a "type" means a Loan that bears, or is to bear, as the context may require,
interest based on the Base Rate or Adjusted Eurodollar Rate.
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the Pledge Agreement and any other document now or hereafter
executed or delivered in connection with this Agreement or the Obligations,
including, without limitation, any life insurance assignment, pledge agreement,
security agreement, financing statement, deed of trust, mortgage, promissory
note, Rate Hedging Agreement or subordination agreement (including any renewals,
extensions and refundings thereof and any modifications, supplements and
amendments thereto and substitutes therefor), each of which shall be in form and
substance satisfactory to the Banks.
"Loans" means Loans made pursuant to Section 1.01.
"LOC Documents" means the documents reasonably required from time to
time by the Issuing Bank in connection with the issuance of Letters of Credit
requested pursuant to Section 1.02(c) of the Agreement, including its standard
letter of credit application, reimbursement agreement and other documents.
"LOC Obligations" means all indebtedness, liabilities and obligation of
the Borrower with respect to Letters of Credit issued by the Issuing Bank.
"Majority Banks" means, as of any date, Banks holding more than 50% of
the aggregate Commitments of all Banks.
"Mandatorily Redeemable Securities" means, as applied to a Person, any
of such Person's Capital Securities or debt to the extent that it is redeemable,
payable or required to be purchased or otherwise retired or extinguished (a) at
a fixed or determinable date, whether by operation of a sinking fund or
otherwise, (b) at the option of any Person other than such Person or (c) upon
the occurrence of a condition not solely within the control of such Person, such
as a redemption required to be made out of future earnings.
"Margin Stock" means "margin stock" as defined in Regulation U.
"Material Adverse Effect" means any material adverse effect upon (a)
the validity, performance or enforceability of any Loan Document, (b) the
financial condition or business operations or prospects of the Borrower Group
taken as a whole or FECR, or (c) the ability of the Borrower and other Group
Members to fulfill their obligations under the Loan Documents.
"Maximum Permitted Rate" means, with respect to interest payable on any
amount, the rate of interest on such amount that, if exceeded could, under
applicable law, result in (a) civil or
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criminal penalties being imposed on any Bank or (b) any Bank's being unable to
enforce payment of (or if collected, to retain) all or part of such amount or
the interest payable thereon.
"Multiemployer Plan" shall mean a "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA) to which the Borrower, any Group Member or any
ERISA Affiliate is or has been obligated to contribute.
"Net Cash Proceeds" means the gross cash proceeds received by the Group
Members in connection with the consummation of any of the transactions of the
type described in clauses (i), (ii), or (iii) of Section 1.05(d) (a) in any such
case, net of all fees, expenses, commissions, charges, taxes (to the extent
paid) and costs incurred by the Group Members in connection with such
transactions and (b) in addition, in the case of transactions of the type
described in clause (i) of Section 1.05(d), net of amounts expended by the Group
Members to repay any Debt which is either secured by the assets subject to such
transaction or not assumed by the purchaser thereof or required to be repaid by
such purchaser, provided that such Debt or security was not prohibited by the
terms of this Agreement prior to the consummation of such transaction.
"Net Income" means, for any Person or consolidated group of Persons,
for any period, the net income of such Person or consolidated group of Persons
for such period (taken as a cumulative whole and determined on a consolidated
basis), provided that there shall be excluded: (a) any net income of a member of
a group of Persons (other than EPIK) to the extent that the declaration or
payment of dividends or similar distributions by that member is not at the time
permitted by operation of the terms of any contract or applicable law; (b) any
net income (or net loss) of any Person (other than a member of a group of
Persons) in which any member of a group of Persons has an ownership interest,
except to the extent that any such income has actually been received by such
member in the form of cash dividends or similar distributions; (c) any net gains
or losses on the sale or other disposition, not in the ordinary course of
business, of investments and other capital assets, or with respect to the
disposition of obsolete or unusable property, provided that there shall also be
excluded any related charges for taxes thereon; (d) any net gain arising from
the collection of the proceeds of any insurance policy; (e) any write-up of any
asset; (f) any net gains resulting from the defeasance of any Debt; and (g) any
extraordinary gains or losses.
"Non-Extending Bank" shall have the meaning assigned to such term in
Section 1.18.
"Non-recourse Debt" means, with respect to any Person, Debt of such
Person, the recourse for collection or payment of which is limited or restricted
solely to the collateral specified in the collateral security documents relating
to such Debt, without any recourse to the general assets or any other asset of
such indebted Person or any other Person.
"Notes" means the Revolving Notes and the Swingline Notes, individually
or collectively as the context may require.
"Notice of Borrowing" shall have the meaning assigned to such term in
Section 1.17.
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"Obligations" means all indebtedness, liabilities and obligations,
including obligations arising under Rate Hedging Agreements of the Borrower to
any of the Administrative Agent and the Banks, whether now existing or hereafter
arising, direct or indirect, fixed or contingent, secured or unsecured, matured
or unmatured, joint, several or joint and several, arising out of or in
connection with this Agreement, the Notes, the Loans, or any other Loan Document
or other document executed or delivered in connection with this Agreement or the
Loans.
"Organizational Documents" means the fundamental organizational and
governing documents of a Person and includes, without limitation, (a) in the
case of a corporation, its articles of incorporation and other charter
documents, bylaws and agreements among stockholders, (b) in the case of a
partnership, its certificate of partnership, partnership agreement and other
agreements among partners and (c) in the case of a limited liability company,
its articles of organization, operating agreement and other agreements among
members.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Percentage" means, with respect to each Bank, the percentage set forth
opposite the name of such Bank on the signature pages hereof or on the most
recently executed Commitment Transfer Supplement to which such Bank is a party.
"Permitted Liens" shall have the meaning assigned to such term in
Section 6.01.
"Permitted Restrictive Covenants" means (a) any covenant or restriction
contained in this Agreement, (b) any covenant or restriction binding upon any
Person at the time such Person becomes a Subsidiary of a Group Member if the
same is not created in contemplation thereof, (c) any covenant or restriction of
the type contained in Section 6.01 that is contained in any Contract evidencing
or providing for the creation of or concerning purchase money Debt permitted
pursuant to Section 6.01, (d) any covenant or restriction contained in any
Contract listed on Schedule 4.18, and (e) any covenant or restriction that (i)
is not more burdensome than an existing Permitted Restrictive Covenant that is
such by virtue of clause (b), (c) or (e), (ii) is contained in a Contract
constituting a renewal, extension or replacement of the Contract in which such
existing Permitted Restrictive Covenant is contained and (iii) is binding only
on the Person or Persons bound by such existing Permitted Restrictive Covenant.
"Person" shall include an individual, a sole proprietorship, a
corporation, a joint venture, a general or limited partnership, a trust, an
unincorporated organization, a mutual company, a joint stock company, an estate,
a union, an employee organization or a Governmental Authority.
"Plan" means an employee benefit plan as defined in Section 3(3) of
ERISA, or other plan maintained by the Borrower or any other Group Member for
employees of the Borrower and/or the other Group Members, including those plans
covered by Title IV of ERISA, or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code, and every other employee benefit
arrangement not subject to ERISA, including but not limited to, those
arrangements providing profit-sharing, stock bonus, stock option, executive
compensation, deferred compensation, severance, hospitalization, medical,
dental, disability or life insurance benefits.
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"Prime Rate" means the per annum rate of interest established from time
to time by Bank of America as its prime rate, which rate may not be the lowest
rate of interest charged by Bank of America to its customers.
"Property" shall have the meaning assigned to such term in Section
5.02(c) hereof.
"Rate Hedging Agreement" shall mean any and all agreements,
arrangements, devices and instruments designed or intended to protect at least
one of the parties thereto from the fluctuations of interest rates or forward
rates applicable to such party's assets, liabilities or exchange transactions,
including without limitation dollar-denominated or cross currency interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options,
puts and warrants and so-called "interest rate swap" agreements; and any and all
cancellations, buy-backs, reversals, terminations or assignments of any of the
foregoing.
"Register" shall have the meaning assigned to such term in Section
10.12(b).
"Regulations D, U and X" means Regulations D, U and X of the Federal
Reserve Board, as the same are from time to time in effect, and all official
rulings thereunder or thereof.
"Regulatory Change" means (a) any new, or any change in any existing,
law, regulation, interpretation, directive or request (whether or not having the
force of law) or (b) any change in the administration or enforcement of any such
applicable law, regulation, interpretation, directive or request that becomes
effective after the date of this Agreement, whether as a result of an enactment
or determination of a Governmental Authority, or otherwise.
"Remedial Work" shall have the meaning assigned to such term in Section
5.02(c)(iv).
"Repayment Date" means the later of (a) the Commitment Termination Date
or the reduction to zero of the Commitments, whichever first occurs and (b) the
payment in full of the Loans and all other amounts payable hereunder.
"Replacement Bank" shall have the meaning assigned to such term in
Section 1.18.
"Reportable Event" shall have the meaning assigned to such term in
Title IV of ERISA.
"Reserve Requirement" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (i) any category
of liabilities which includes deposits by reference to which the Adjusted
Eurodollar Rate is to be determined, or (ii) any category of extensions of
credit or other assets which include Eurodollar Loans. The Adjusted Eurodollar
Rate shall be adjusted automatically on and as of the effective date of any
change in the Reserve Requirement.
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"Revolving Loans" shall have the meaning assigned to such term in
Section 1.01 hereof.
"Revolving Notes" means the promissory notes executed by the Borrower
and delivered to the Banks to evidence the Revolving Loans pursuant to Section
1.03(a) of this Agreement, together with any renewals, extensions, replacements
or modifications thereof.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and any successor statute thereto.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the amount that will be required to pay the
probable liabilities of such Person on its debts as they become absolute and
matured will not be greater than the fair salable value of the assets of such
Person at such time, (c) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, and (e) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to prevailing practices in the
industry in which such Person is engaged. In computing the amount of any
contingent liability at any time, it is intended that such liability will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that might reasonably be expected
to become an actual or matured liability.
"St. ▇▇▇ Management Agreement" means the Master Agreement between
Flagler and The St. ▇▇▇ Company dated October 26, 1999, and all exhibits
thereto, as each is in effect on the date hereof,.
"St. ▇▇▇ Recapitalization Agreement" means the Distribution and
Recapitalization Agreement between the Borrower and The St. ▇▇▇ Company dated
October 26, 1999, as heretofore amended, as in effect on the date hereof and as
of the date of the distribution described in such Agreement.
"State Official" means, with respect to any Person, the Secretary of
State or other appropriate official of the jurisdiction in which such Person was
incorporated or organized who is authorized to certify official records of such
Person on file in such jurisdiction.
"STB" means the Surface Transportation Board of the U.S. Department of
Transportation or any successor agency thereto.
"Subsidiary" means, with respect to any Person, any other Person fifty
percent (50%) or more of the outstanding Capital Securities of each class of
which is owned or controlled, directly or indirectly, by such first Person and
its Affiliates.
"Swingline Bank" means Bank of America in its capacity as Swingline
Bank herein.
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"Swingline Loan Request" has the meaning set forth in Section 1.02(b).
"Swingline Loans" shall have the meaning assigned to such term in
Section 1.01(b) hereof.
"Swingline Notes" means the promissory notes executed by the Borrower
and delivered to the Swingline Bank pursuant to Section 1.03(b) of this
Agreement, together with any renewals, extensions, replacements or modifications
thereof.
"Tax" means, in relation to any Loan, any federal, state, local or
foreign tax, levy, impost, duty, deduction, withholding or other charge of
whatever nature required by any Legal Requirement (a) to be paid by the Banks or
(b) to be withheld or deducted from any payment otherwise required hereby to be
made by the Borrower to the Banks; provided, however, that the term "Tax" shall
not include any taxes imposed upon the net income of the Banks.
"Telerate Screen Page 3750" means the "British Bankers Association
LIBOR Rates" shown on page 3750 of the Telerate System Incorporated Service.
"Toxic Substances" means and includes any materials present on the
Property which have been shown to have significant adverse effects on human
health or which are subject to regulation under the Toxic Substances Control
Act, applicable state law, or any other applicable federal, state or local laws
now in force or hereafter enacted relating to toxic substances. "Toxic
Substances" includes, but is not limited to, asbestos, polychlorinated biphenyls
("PCBs"), petroleum products, and lead-based paints.
"Traffic Summary" means a traffic summary report prepared by the
Borrower with respect to the railroad business of the Borrower Group in the form
of Exhibit H.
"UCP" shall have the meaning assigned to such term in Section 1.20(f).
"Voting Stock" shall mean, at any time, all classes of capital stock of
Borrower then outstanding and entitled to vote in the election of directors.
"Withdrawal Liability" shall have the meaning given such term under
Part 1 of Subtitle E of the Title IV of ERISA.
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EXHIBIT B-1
[Form of Revolving Note]
$____________ [City, State]
_____________, 2001
FOR VALUE RECEIVED, FLORIDA EAST COAST INDUSTRIES, INC., a Florida
corporation (the "Borrower"), hereby promises to pay to the order of
__________________ (the "Bank"), at the office of BANK OF AMERICA, N.A., as
Administrative Agent (the "Administrative Agent"), at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the dates provided in the Credit Agreement
(the "Credit Agreement") dated as of March 22, 2001, among the Borrower, the
Banks listed therein, Bank Of America, N.A., as Administrative Agent for the
Banks, and as Swingline Bank and Letter of Credit Issuing Bank, First Union
National Bank, as Syndication Agent, and SunTrust Bank, as Documentation Agent
for the Banks, but in no event later than the Commitment Termination Date as
defined in the Credit Agreement, in lawful money of the United States of
America, in immediately available funds, the principal amount of
_______________________ Dollars ($___________ ) or, if less than such principal
amount, the aggregate unpaid principal amount of the Revolving Loans (as defined
in the Credit Agreement) made by the Bank to the Borrower pursuant to the Credit
Agreement, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
selected in accordance with Article I of the Credit Agreement.
The Borrower promises to pay interest, payable on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at a rate or rates determined as set forth in the Credit
Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be evidenced by the books and records of the Administrative Agent.
This Note is one of the Revolving Notes referred to in the Credit
Agreement which, among other things, contains provisions for the acceleration of
the maturity hereof upon the happening of certain events, for optional
prepayment of the principal hereof prior to the maturity thereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note shall be construed in
accordance with and governed by the laws of the State of New York(including,
without limitation, Sections 5-1401 and 5-1402 of the New York General
Obligations Law), but excluding, to the fullest extent permitted by applicable
law, all other choice of law and conflict of law rules.
FLORIDA EAST COAST INDUSTRIES, INC.
By:
---------------------------------
Title:
-------------------------------
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EXHIBIT B-2
[Form of Swingline Note]
$10,000,000 ___________, 2001
[City, State]
FOR VALUE RECEIVED, FLORIDA EAST COAST INDUSTRIES, INC., a Florida
corporation (the "Borrower"), hereby promises to pay to the order of BANK OF
AMERICA, N.A. (the "Bank"), at the office of BANK OF AMERICA, N.A., as
Administrative Agent (the "Administrative Agent"), at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the dates provided in the Credit Agreement
(the "Credit Agreement") dated as of March 22, 2001, among the Borrower, the
Banks listed therein, Bank Of America, N.A., , as Administrative Agent for the
Banks, and as Swingline Bank and Letter of Credit Issuing Bank, First Union
National Bank, as Syndication Agent, and SunTrust Bank, as Documentation Agent
for the Banks, but in no event later than the Commitment Termination Date as
defined in the Credit Agreement, in lawful money of the United States of
America, in immediately available funds, the principal amount of TEN MILLION
DOLLARS ($10,000,000) or, if less than such principal amount, the aggregate
unpaid principal amount of the Swingline Loans (as defined in the Credit
Agreement) made by the Bank to the Borrower pursuant to the Credit Agreement,
and to pay interest from the date hereof on the unpaid principal amount hereof,
in like money, at said office, on the dates and at the rates selected in
accordance with Article I of the Credit Agreement.
The Borrower promises to pay interest, payable on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at a rate or rates determined as set forth in the Credit
Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be evidenced by the books and records of the Administrative Agent.
This Note is the Swingline Note referred to in the Credit Agreement
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional prepayment of
the principal hereof prior to the maturity thereof and for the amendment or
waiver of certain provisions of the Credit Agreement, all upon the terms and
conditions therein specified. This Note shall be construed in accordance with
and governed by the laws of the State of New York(including, without limitation,
Sections 5-1401 and 5-1402 of the New York General Obligations Law), but
excluding, to the fullest extent permitted by applicable law, all other choice
of law and conflict of law rules.
FLORIDA EAST COAST INDUSTRIES, INC.
By:
---------------------------------
Title:
-------------------------------
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EXHIBIT C
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of March 22, 2001, made by FLORIDA EAST
COAST INDUSTRIES, INC., a Florida corporation (the "Pledgor"), to BANK OF
AMERICA, N.A., a national banking association, as agent (in such capacity, the
"Agent"), for the banks (the "Banks") under the Credit Agreement (as defined
below), recites and provides:
RECITALS
WHEREAS, pursuant to the Credit Agreement dated as of March 22, 2001,
among the Pledgor, the Agent and the Banks named therein, the Banks have agreed
to make Loans to the Pledgor for the purposes described in the Credit Agreement,
such Loans to be evidenced by Notes of the Pledgor payable to the order of the
respective Banks as provided in the Credit Agreement; and
WHEREAS, the Banks are willing to make the Loans but only upon the
condition, among others, that the Pledgor executes and delivers to the Agent for
the ratable benefit of the Banks this Pledge Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement shall have their defined meanings when used herein. For the
purposes of this Pledge Agreement, the following terms shall have the following
meanings:
"Obligations" means all indebtedness, liabilities and
obligations, including obligations under Rate Hedging Agreements of the
Pledgor to any of the Administrative Agent and the Banks, whether now
existing or hereafter arising, direct or indirect, fixed or contingent,
secured or unsecured, matured or unmatured, joint, several or joint and
several, arising out of or in connection with the Credit Agreement, the
Notes, the Loans, or any other Loan Document or other document executed
and delivered in connection with the Credit Agreement or the Loans.
"Pledged Assets" means the Capital Securities described in
Schedule 1 hereto, together with all certificates, options, rights,
dividends, other distributions or intangible rights or assets issued as
an addition to, in substitution or in exchange for, or on account of,
any such Capital Securities, and all proceeds of all of the foregoing,
now or hereafter owned or acquired by the Pledgor.
87
"Pledged Securities" means the Capital Securities described in
Schedule 1 hereto and all other Capital Securities now or hereafter
included in the Pledged Assets.
2. Grant of Security Interest.
(a) As collateral security for the prompt and complete payment and
performance when due of all of the Obligations and in order to induce the Agent
and the Banks to enter into the Credit Agreement and make the Loans in
accordance with the terms thereof, the Pledgor hereby pledges to the Agent for
the ratable benefit of the Banks the Pledged Assets and grants to the Agent for
the ratable benefit of the Banks a lien on and security interest therein.
(b) If the Pledgor shall become entitled to receive or shall receive,
in connection with any of the Pledged Securities, any:
(i) Certificate or other evidence of ownership, including, but
without limitation, any certificate issued in connection with any increase or
reduction of capital, reclassification, merger, consolidation, sale of assets,
combination, spin-off or split-off;
(ii) Option, warrant, or right, whether as an addition to or
in substitution or in exchange for any of the Pledged Securities, or otherwise;
(iii) Dividend or distribution payable in property (other than
cash), including Capital Securities issued by an issuer other than the issuer of
any of the Pledged Securities; or
(iv) Dividends or distributions of any sort (other than those
permitted to be retained by the Pledgor pursuant to Section 2(d));
then the Pledgor shall accept the same as the agent of the Agent and
the Banks, in trust for the Agent and the Banks, and shall deliver them
forthwith to the Agent in the exact form received with, as applicable, the
Pledgor's endorsement when necessary, or appropriate stock powers duly executed
in blank, to be held by the Agent, subject to the terms hereof, as part of the
Pledged Assets.
(c) Prior to the occurrence of an Event of Default, the Pledgor shall
retain all voting rights with respect to the Pledged Securities. At any time the
Agent, at its option, may have any or all of the Pledged Securities registered
in its name or that of its nominee on the books of the issuer of the Pledged
Securities, and the Pledgor hereby covenants that, upon the Agent's request, the
Pledgor will cause the issuer of the Pledged Securities to effect such
registration. If such registration is effected prior to the occurrence of an
Event of Default, the Pledgor shall nevertheless retain all voting rights with
respect to the Pledged Securities, and, for that purpose, the Agent shall
execute and deliver to the Pledgor all proxies reasonably requested by the
Pledgor. Immediately upon written notice to the Pledgor following the occurrence
and during the continuation of any Event of Default, whether or not the Pledged
Securities shall have been registered in the name of the Agent or its nominee,
the Agent or its nominee shall have, with respect to the Pledged Securities, the
right to exercise all voting rights with respect thereto and all conversion,
exchange, subscription or other rights, privileges or options as any owner or
holder
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88
pertaining thereto as if it were the absolute owner thereof, including, without
limitation, the right to exchange any or all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
the issuer thereof, or upon the exercise by such issuer of any right, privilege,
or option pertaining to any of the Pledged Securities, and, in connection
therewith, to deliver any of the Pledged Securities to any committee,
depository, transfer agent, registrar or other designated agency upon such terms
and conditions as it may determine, all without liability except to account for
property actually received by it; but the Agent shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure to do so or any delay in so doing.
(d) Unless an Event of Default has occurred and is continuing, the
Pledgor shall be entitled, if not prohibited by the Credit Agreement, to receive
for its own use cash dividends or distributions on the Pledged Securities. Upon
the occurrence and during the continuation of an Event of Default, the Agent may
require any such cash dividends or distributions to be delivered to the Agent as
additional security hereunder or applied toward the satisfaction of the
Obligations.
3. Remedies, Rights Upon Default.
(a) Upon and after the occurrence and during the continuation of an
Event of Default, the Agent may, without demand of performance or other demand,
advertisement, or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon the Pledgor or any other person
(all of which are, to the extent permitted by law, hereby expressly waived),
forthwith realize upon the Pledged Assets or any part thereof, and may
forthwith, or agree to, sell or otherwise dispose of and deliver the Pledged
Assets or any part thereof or interest therein, in one or more parcels at public
or private sale or sales, at any exchange, broker's board or at any of the
Agent's offices or elsewhere, at such prices and on such terms (including, but
without limitation, a requirement that any purchaser of all or any part of the
Pledged Securities purchase the shares or other interests constituting the
Pledged Securities for investment and without any intention to make a
distribution thereof) as it may deem best, for cash or on credit, or for future
delivery without assumption of any credit risk, with the right to the Agent or
any purchaser to purchase upon any such sale the whole or any part of the
Pledged Assets free of any right or equity of redemption in the Pledgor, which
right or equity is hereby expressly waived and released.
(b) The proceeds of any such disposition or other action by the Agent
shall be applied as follows:
(i) First, to the costs and expenses incurred in connection
therewith or incidental thereto or to the care or safekeeping of any of the
Pledged Assets or in any way relating to the rights of the Agent hereunder,
including reasonable attorneys' fees and legal expenses;
(ii) Second, to the satisfaction of the Obligations;
(iii) Third, to the payment of any other amounts required by
applicable law (including, without limitation, Section 9-504(1)(c) of the
Uniform Commercial Code as in effect in the State of Florida (the "UCC")); and
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(iv) Fourth, to the Pledgor to the extent of any surplus
proceeds.
(c) The Agent need not give more than ten days' notice of the time and
place of any public sale or of the time after which a private sale may take
place, which notice the Pledgor hereby deems reasonable.
4. Representations and Warranties of Pledgor. The Pledgor represents
and warrants that:
(a) It has, and has duly exercised, all requisite power and authority
to enter into this Pledge Agreement, to pledge the Pledged Assets for the
purposes described in the recitals to this Pledge Agreement, and to carry out
the transactions contemplated by this Pledge Agreement;
(b) It is the legal and beneficial owner of all of the Pledged Assets;
(c) The Pledged Securities constitute all of the issued and outstanding
Capital Securities of each issuer thereof;
(d) All of the Pledged Securities have been duly and validly issued,
are fully paid and nonassessable, and all of the Pledged Assets are owned by the
Pledgor free of any pledge, mortgage, hypothecation, lien, charge, encumbrance
or security interest in or on such Pledged Assets or the proceeds thereof,
except for that granted hereunder;
(e) The execution and delivery of this Pledge Agreement, and the
performance of its terms, will not result in any violation of any provision of
the Organizational Documents of the Pledgor or the applicable issuer of the
Pledged Securities or violate or constitute a default under the terms of any
agreement, indenture or other instrument, license, judgment, decree, order, law,
statute, ordinance or other governmental rule or regulation, applicable to the
Pledgor or any of its property; and
(f) Upon the delivery of all certificates and instruments evidencing
the Pledged Securities to the Agent or its agent and the filing of financing
statements in the filing offices described in Schedule 2 hereto naming the
Pledgor as debtor, the Agent as secured party and describing the Pledged Assets,
this Pledge Agreement will create a valid first lien upon and perfected security
interest in the Pledged Assets and the proceeds thereof, subject to no prior
security interest, lien, charge or encumbrance, or agreement purporting to grant
to any third party a security interest in the property or assets of the Pledgor
which would include the Pledged Assets.
(g) The Pledgor's chief executive office within the meaning of ss.
9-103(3)(d) of the UCC, is listed on Schedule 2 hereto.
(h) None of the Pledged Securities is, nor at any time during the term
of this Pledge Agreement will be, (i) dealt in or traded on securities exchanges
or in securities markets, (ii) expressly governed by Article 8 ("Article 8") of
the UCC pursuant to the terms of the Organizational Documents, (iii) an
investment company security (as defined in UCC ss. 8-103 of Article 8) or (iv)
held in a securities account (as defined in UCC ss. 8-501 of Article 8).
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(i) Except for the filing of the Financing Statements and the delivery
of certificates evidencing the Pledged Securities along with stock powers
executed in blank, no authorization, approval, or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any other
Person is required for (1) the pledge by the Pledgor of the Pledged Assets
pursuant to this Pledge Agreement, (2) the creation and perfection of a first
priority security interest in the Pledged Assets in favor of the Banks or for
the execution, delivery or performance of this Pledge Agreement by the Pledgor
or (3) for the exercise by the Agent on behalf of the Banks of the remedies in
respect of the Pledged Assets pursuant to this Pledge Agreement (except as may
be required by the UCC).
5. Covenants of Pledgor.
(a) The Pledgor hereby covenants that, until the Repayment Date, it
will not, without the prior written consent of the Agent and the Banks:
(i) Sell, convey, or otherwise dispose of any of the Pledged
Assets (other than cash distributions permitted to be retained by the Pledgor
pursuant to Section 2(d)) or any interest therein or create, incur, or permit to
exist any pledge, mortgage, lien, charge, encumbrance or security interest
whatsoever in or with respect to any of the Pledged Assets or the proceeds
thereof, other than that created hereby; or
(ii) Consent to or approve the issuance of any additional
Capital Securities in the issuer of the Pledged Securities; or any Capital
Securities convertible voluntarily by the holder thereof or automatically upon
the occurrence or non-occurrence of any event or condition into, or exchangeable
for, any such Capital Securities, or any warrants, options, rights, or other
commitments entitling any person to purchase or otherwise acquire any such
Capital Securities, unless, in each case, such additional Capital Securities,
convertible Capital Securities, warrants, options, rights or other commitments,
are pledged to the Agent pursuant to this Agreement; or
(iii) Change its name, identity or organizational structure in
any manner that might make any financing or continuation statement filed
hereunder seriously misleading within the meaning of Section 9-402(7) of the UCC
(or any other then applicable provision of the UCC) unless the Pledgor has given
the Agent at least 90 days' prior written notice thereof or has delivered to the
Agent acknowledgment copies of UCC-3 financing statements duly executed and duly
filed in each jurisdiction in which UCC-l filings were required in order to
perfect the security interest granted by this Pledge Agreement in the Pledged
Assets and have taken all actions (or made arrangements to take such action
substantially simultaneously with such change if it is impossible to take such
action in advance) necessary or reasonably requested by the Agent to amend such
financing statement or continuation statement so that it is not seriously
misleading; or
(iv) Change its chief executive office as set forth in
Schedule 2 hereto unless it has given the Agent at least 90 days' prior written
notice thereof or has delivered to the Agent acknowledgment copies of UCC-1
financing statements duly executed and filed in each of the filing offices in
which UCC-1 filings are required in order to perfect any of the security
interests granted hereunder in the Pledged Assets.
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(b) The Pledgor warrants and will, at its own expense, defend the
Agent's right, title, special property and security interest in and to the
Pledged Assets against the claims of any person, firm, corporation or other
entity.
6. Registration Statement.
(a) If the Agent elects to exercise its right to sell or otherwise
dispose of all or any part of the Pledged Securities, and if, in the opinion of
counsel for the Agent, it is necessary to have the Pledged Securities or that
portion thereof to be sold registered under the provisions of the Securities Act
of 1933, as amended (the "Securities Act"), the Pledgor shall use its best
efforts to cause:
(i) The issuer of such Pledged Securities, its governing body
and responsible officers, to take all action necessary to register such Pledged
Securities or that portion thereof to be disposed of under the provisions of the
Securities Act, at the Pledgor's expense;
(ii) The registration statement relating thereto to become
effective and to remain so for not less than one year from the date of the first
public offering of such Pledged Securities or that portion thereof so to be
disposed of, and to make all amendments thereto and to the related prospectus
that, in the opinion of the Agent or its counsel, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto;
(iii) The issuer of such Pledged Securities to comply with the
provisions of the "Blue Sky" law of any jurisdiction designated by the Agent;
and
(iv) The issuer of such Pledged Securities to make available
to all holders of its Capital Securities, as soon as practicable, an earnings
statement (which need not be audited) covering a period of at least twelve
months but not more than eighteen months, beginning with the first month after
the effective date of any such registration statement, which earnings statement
will satisfy the provisions of Section 11(a) of the Securities Act.
(b) The Pledgor acknowledges that a breach of any of the covenants
contained in paragraph 5(a) above may cause irreparable injury to the Banks;
that the Agent and the Banks will have no adequate remedy at law with respect to
such breach; and, as a consequence, that the Pledgor's covenants in paragraph
5(a) shall be specifically enforceable against the Pledgor; and the Pledgor
hereby waives, to the extent such waiver is enforceable under law, and shall not
assert, any defenses against an action for specific performance of such
covenants, except for a defense that no Event of Default has occurred.
(c) Notwithstanding the foregoing, the Pledgor recognizes that the
Agent may be unable to effect a public sale of all or a part of the Pledged
Securities and may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obligated to agree, among other
things, to acquire such Capital Securities for their own account, for investment
and not with a view to the distribution or resale thereof. The Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable to the Agent than those of
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public sales, and agrees that the sale of the Pledged Securities does not have
to be a public sale in order to be made in a commercially reasonable manner and
that the Agent has no obligation to delay sale of any such Pledged Securities to
permit the issuer thereof to register it for public sale under the Securities
Act.
7. Notices Concerning Pledged Assets. The Pledgor will promptly deliver
to the Agent all written notices, and will promptly give the Agent written
notice of any other notices, received by it with respect to Pledged Assets.
8. Further Assurances. The Pledgor shall at any time, and from time to
time, upon the written request of the Agent, execute and deliver such further
documents and do such further acts and things as the Agent may reasonably
request to effect the purposes of this Pledge Agreement, including, without
limitation, delivering to the Agent upon the occurrence of an Event of Default
irrevocable proxies with respect to the Pledged Securities in form satisfactory
to the Agent. Until receipt thereof, this Pledge Agreement shall constitute the
Pledgor's proxy to the Agent or its nominee to vote all Pledged Securities then
registered in the Pledgor's name in accordance with Section 2(c).
9. Termination. This Pledge Agreement shall terminate on the later of
(i) the second anniversary of the Closing Date and (ii) the last day of the
second consecutive quarter in which the Leverage Ratio has been less than 2.25x,
provided, however, that if the Leverage Ratio is greater than or equal to 2.25x
at any time after such pledge has been released, the Borrower shall re-pledge
the Collateral to the Banks and take all actions necessary to effect such
pledge. Upon termination of this Pledge Agreement, the Agent shall deliver to
the Pledgor, or register a release for the benefit of the Pledgor, at the
Pledgor's expense, such of the Pledged Assets as shall not have been sold or
otherwise applied pursuant to this Pledge Agreement.
10. Limitation on Agent's Duty in Respect of Collateral. Beyond the
exercise of reasonable care to assure the safe custody of the Pledged Assets
while held hereunder, the Agent shall have no duty or liability to preserve
rights pertaining thereto and shall be relieved of all responsibility for the
Pledged Assets upon surrendering or tendering surrender of the Pledged Assets to
the Pledgor.
11. Severability. Any provision of this Pledge Agreement that 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.
12. No Waiver; Cumulative Remedies. Neither the Agent nor the Banks
shall, by any act, delay, omission or otherwise, be deemed to have waived any of
its or their rights or remedies hereunder and no waiver shall be valid unless in
writing, signed by the Agent on behalf of the Banks, and then only to the extent
therein set forth. A waiver by the Agent of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Agent or the Banks would otherwise have had on any future occasion. No failure
to exercise nor any delay in exercising on the part of the Agent or the Banks,
any right, power or
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privilege hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or future exercise thereof or the exercise or any other right, power or
privilege. The rights and remedies hereunder provided are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights and
remedies provided by law. None of the provisions of this Pledge Agreement may be
waived, altered, modified or amended except by an instrument in writing, duly
executed by the Pledgor and the Agent on behalf of the Banks.
13. Successors and Assigns; Governing Law. This Pledge Agreement and
all obligations of the Pledgor hereunder shall be binding upon the successors
and assigns of the Pledgor, and shall, together with the rights and remedies of
the Agent hereunder, inure to the benefit of the Agent, the Banks and their
respective successors and assigns. This Pledge Agreement shall be governed by,
and be construed and interpreted in accordance with, the laws of the State of
New York.
14. Further Indemnification. The Pledgor agrees to pay, and to save the
Agent and the Banks harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all excise, sales or other taxes
which may be payable or determined to be payable with respect to any of the
Pledged Assets or in connection with any of the transactions contemplated by
this Pledge Agreement.
15. Notices. Any notice to the Agent or the Banks or the Pledgor
required or permitted by this Pledge Agreement shall be effective if given in
accordance with Section 10.04 of the Credit Agreement.
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IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be
duly executed and delivered as of the date and year first above written.
FLORIDA EAST COAST INDUSTRIES, INC.
By:
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President
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Schedule 1
CAPITAL SECURITIES
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ISSUER, INCLUDING EXACT NAME, THE TYPE OF CERTIFICATE NO. (IF NO. OF UNITS EXACT NAME OF
ENTITY AND JURISDICTION OF APPLICABLE) & OWNERSHIP % REGISTERED HOLDER
ORGANIZATION
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Florida East Coast Railway, LLC, a Florida 1 100 Units Florida East Coast
limited liability company 100% Industries, Inc.
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Schedule 2
FILING OFFICES AND INFORMATION
Filing Offices: Secretary of State of the State of Florida
Location of Debtor: Florida East Coast Industries, Inc.
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▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier Number (▇▇▇) ▇▇▇-▇▇▇▇
97
EXHIBIT D
GUARANTY AGREEMENT
This GUARANTY AGREEMENT, dated as of March , 2001, made by the
undersigned (collectively, the "Guarantors", and each a "Guarantor"), to BANK OF
AMERICA, N.A., a national banking association, as agent (in such capacity, the
"Agent") for the Banks (the "Banks") under the Credit Agreement (as defined
below), recites and provides as follows:
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of March
22, 2001, among Florida East Coast Industries, Inc., a Florida corporation (the
"Borrower"), the Banks listed therein (collectively, the "Banks"), Bank of
America, N.A., as Administrative Agent for the Banks, and as Swingline Bank and
Letter of Credit Issuing Bank, First Union National Bank, as Syndication Agent,
and SunTrust Bank, as Documentation Agent for the Banks (as the same may from
time to time be amended, supplemented or otherwise modified, the "Credit
Agreement"), the Banks have agreed to make revolving credit loans to the
Borrower in the maximum aggregate principal amount of $375,000,000 (the
"Loans"), such Loans to be evidenced by Promissory Notes, dated as of March 22,
2001, all as provided in the Credit Agreement (each hereinafter as the same may
from time to time be amended, extended or otherwise modified, called a "Note",
and collectively and together with all other promissory notes executed by the
Borrower pursuant to Section 1.03 of the Credit Agreement and all renewals,
extensions, replacements or modifications thereof, the "Notes") (except as
otherwise defined herein, capitalized terms used herein shall have their
meanings set forth in the Credit Agreement); and
WHEREAS, each of the Guarantors operates a business similar to or
relating to the business of the Borrower and will receive benefits from the
Credit Agreement and Loans; and
WHEREAS, the Banks are unwilling to make the Loans without obtaining
the unconditional guaranties of the Guarantors;
NOW, THEREFORE, in consideration of the foregoing and in further
consideration of the anticipated benefits to the Guarantors by virtue of their
relationship to the Borrower and to induce the Banks to make the Loans, the
Guarantors hereby jointly and severally covenant and agree as follows:
ARTICLE I
Guaranty
Section 1.1. Guaranteed Payments. The Guarantors hereby jointly and
severally guarantee to the Agent and the Banks, for the benefit of any present
or future holder of the Notes, the full and prompt payment of the following
(hereinafter referred to collectively as "Guaranteed Payments"): (a) the
principal of the Notes when and as the same shall become due (whether at
maturity, by acceleration or call for prepayment or otherwise), (b) the interest
on the Notes when and as the same shall become due, and (c) the Obligations and
all other obligations and
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indebtedness of any and every kind and nature now or hereafter owing or arising
under or pursuant to the Credit Agreement and the other Loan Documents.
Section 1.2. Term of Guaranty. This Guaranty shall be a continuing,
absolute and unconditional Guaranty and shall remain in full force and effect
until all Guaranteed Payments are made in full by the Borrower or the
Guarantors, as the case may be. Notwithstanding the fact that the Guaranteed
Payments may have been paid in full and this Guaranty may have been returned to
the Guarantors, the Guarantors' obligations hereunder shall continue in full
force and effect with respect to any amounts that any of the Banks may ever be
required to repay under any bankruptcy or insolvency laws.
Section 1.3. Guaranty of Payment. This is a guaranty of payment and not
of collection, and the Guarantors expressly waive any right to require that any
action be brought against the Borrower or any other guarantor of the Notes or
the Loans or to require that resort be had to any collateral. If the Borrower
shall fail to make any Guaranteed Payment when and as the same becomes due
(whether at maturity, by acceleration or call for prepayment or otherwise), the
Guarantors, upon demand, without notice other than such demand and without the
necessity of further action by the Agent or the Banks, shall promptly and fully
make such payment. The Guarantors shall pay all reasonable costs and expenses,
including reasonable counsel fees and expenses, paid or incurred by the Agent
and the Banks, in connection with the enforcement of the obligation of the
Borrower to make any Guaranteed Payment or the enforcement of the obligations of
the Guarantors hereunder. All payments by the Guarantors shall be made in lawful
money of the United States of America. Each default in any Guaranteed Payment
shall give rise to a separate cause of action hereunder, and separate suits may
be brought hereunder as each cause of action arises.
Section 1.4. Obligations Unconditional. The obligations of the
Guarantors hereunder shall not be impaired, modified, released or limited by any
occurrence or condition whatsoever, including without limitation (a) any
compromise, settlement, release, waiver, renewal, extension, indulgence,
impairment, limitation of liability, change in or modification of (1) any of the
obligations and liabilities, either original or assumed, of the Borrower
contained in the Notes, the Credit Agreement, or the other Loan Documents, or
(2) any security for the Loans or the Notes; (b) any exchange, release or
surrender to the Borrower or to any guarantor, pledgor, or grantor of any
collateral, or any waiver, release or subordination of any security interest, in
whole or in part, now or hereafter held as security for the Loans or the Notes;
(c) any impairment, modification, release or limitation of (1) the liability of
the Borrower or (2) any security for the Loans or the Notes or any remedy for
the enforcement thereof, resulting from the operation of any present or future
provision of the federal bankruptcy laws or other statute or from the decision
of any court relating thereto; (d) the assertion or exercise by the Agent or any
of the Banks of any rights or remedies under the Loan Documents or this Guaranty
or any other guaranty of the Notes or their delay in asserting or exercising, or
failure to assert or exercise or waiver of, any such rights or remedies; or (e)
any release of any one or more of the Guarantors or any other guarantor of the
Loans or the Notes. No invalidity, irregularity or unenforceability of any
obligation of the Borrower under the Notes or the Credit Agreement hereby
guaranteed or of any security therefor shall affect, impair, or be a defense to
this Guaranty. This Guaranty is a primary obligation of each of the Guarantors,
it being understood that the Agent and the Banks may enforce this
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▇▇▇▇▇▇▇▇ directly against one or more of the Guarantors without any requirement
of enforcing this Guaranty against all of the Guarantors as a group.
Section 1.5. Waivers. The Guarantors unconditionally waive (a) notice
of any of the matters referred to in Section 1.4 and (b) any demand (except as
specified in Section 1.3), proof or notice of default in the making of any
Guaranteed Payment when due or of any other default by the Borrower under the
Loan Documents; provided that this section and Section 1.4 do not waive or vary
any rights of the Guarantors that may not be waived or varied under applicable
law.
Section 1.6. No Guarantor Set-Offs. No lawful act of commission or
omission of any kind or at any time upon the part of the Agent or the Banks in
respect of any matter whatsoever shall in any way affect or impair the rights of
the Agent or the Banks to enforce any right, power or benefit under this
Guaranty, and no set-off, claim, reduction or diminution of any obligation or
any defense of any kind or nature which any Guarantor has or may have against
the Agent or the Banks shall be available against the Agent or the Banks in any
suit or action brought by the Agent or any Bank to enforce any right, power or
benefit under this Guaranty. Nothing in this Guaranty shall be construed as a
waiver by the Guarantors of any rights or claims which the Guarantors may have
against the Agent or the Banks under this Guaranty or otherwise, but any
recovery upon such rights and claims shall be had from the Agent or the Banks
separately, it being the intent of this Guaranty that the Guarantors shall be
unconditionally and absolutely obligated to perform fully all of their
obligations, covenants and agreements hereunder for the benefit of the Banks.
Section 1.7. Banks' Right to Set-Off. Upon the occurrence and during
the continuance of any Event of Default, each Bank (and each of its affiliates)
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Bank (or any of its affiliates) to or for the credit or
the account of the Guarantors against any and all of the obligations of the
Guarantors now or hereafter existing under this Guaranty, irrespective of
whether such Bank shall have made any demand under this Guaranty. Each Bank
agrees promptly to notify each Guarantor after any such set-off and application
made by such Bank; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each Bank
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Bank may have.
ARTICLE II
Representations
Each of the Guarantors represents and warrants to the Agent and the
Banks and as the basis for its undertakings hereunder that each of the
representations and warranties of the Borrower set forth in the Credit Agreement
as it relates to such Guarantor is true and correct on and as of the date
hereof. Additionally, each of the Guarantors represents and warrants to the
Agent and the Banks that it operates a business similar to or relating to the
business of Borrower and will receive benefits from the Credit Agreement and the
Loans.
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ARTICLE III
Covenants
Each of the Guarantors hereby covenants that it shall comply with each
of the covenants made by the Borrower with respect to such Guarantor in the
Credit Agreement.
ARTICLE IV
Events of Default; Remedies
Section 4.1. Event of Default Defined. An Event of Default hereunder
shall mean an "Event of Default" as defined in the Credit Agreement.
Section 4.2. Remedies Upon Default. Upon the occurrence and
continuation of an Event of Default hereunder:
(a) As provided in the Credit Agreement, the Agent may declare the
entire unpaid principal of and accrued interest on the Notes to be immediately
due and payable or such principal and interest shall become immediately due and
payable without further action on the part of the Agent or the Banks.
(b) The Agent and the Banks may take whatever action at law or in
equity may appear necessary or desirable to collect payments then due or
thereafter to become due hereunder or to enforce observance or performance of
any covenant, condition or agreement of the Guarantors under this Guaranty.
ARTICLE V
Subordination; Waiver of Subrogation
Section 5.1. Subordination. Each Guarantor hereby subordinates all
indebtedness of the Borrower and the other Guarantors owing to it, whether now
existing or hereafter arising, direct or contingent (including contribution
rights with respect to payments made under this Guaranty) to the full and prompt
payment of the Guaranteed Payments. Upon the occurrence and during continuation
of an Event of Default hereunder, the Guarantors may not receive or collect
payments on the subordinated indebtedness. Any amounts received by the
Guarantors as a payment on the subordinated indebtedness that is not permitted
by the Credit Agreement shall be retained and held in trust by the Guarantors
for the benefit of the holders of the Notes.
Section 5.2 Waiver of Subrogation. Notwithstanding any other provision
of this guaranty, each Guarantor hereby irrevocably waives, until the Guaranteed
Payments have been satisfied in full and the Commitments terminated, any right
to assert, enforce, or otherwise exercise any right of subrogation to any of the
rights, security interests, claims or liens of the Banks, their successors or
assignees or any other beneficiary against the Borrower, any Guarantor or any
other obligor on the Guaranteed Payments or on any collateral or other security,
and each such Guarantor shall have no right of recourse, reimbursement,
contribution, indemnification, or similar right it may have (by contract or
otherwise) against the Borrower or any other obligor on all or any part of the
Guaranteed Payments or any guarantor thereof, and each Guarantor hereby
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irrevocably waives any and all of the foregoing rights and also irrevocably
waives the benefit of, and any right to participate in, any collateral or other
security given to the Banks or any other beneficiary to secure payment of the
Guaranteed Payments.
ARTICLE VI
Miscellaneous
Section 6.1. Notices. All demands, notices, approvals, consents,
requests and other communications hereunder shall be given in the manner
provided in the Credit Agreement, and in the case of the Guarantors addressed to
them at the address given for notices to the Borrower pursuant to Section 10.04
of the Credit Agreement.
Section 6.2. Successors and Assigns. This Guaranty shall be binding
upon the Guarantors, their successors and assigns, and all rights against the
Guarantors arising under this Guaranty shall be for the sole benefit of the
Agent and the Banks and any present or future holders of the Notes or
beneficiaries of the Obligations.
Section 6.3. Severability. If any provision of this Guaranty shall be
held invalid by any court of competent jurisdiction, such holding shall not
invalidate any other provision hereof.
Section 6.4. Applicable Law. This Guaranty shall in all respects be
governed by and construed in accordance with the laws of the State of New York
(including, without limitation, Sections 5-1401 and 5-1402 of the New York
General Obligations Law), but excluding, to the fullest extent permitted by
applicable law, all other choice of law and conflict of law rules.
Section 6.5. WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGENT, EACH BANK AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE NOTES OR ANY
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (VERBAL
OR WRITTEN), OR ACTIONS OF THE AGENT, ANY BANK OR THE BORROWER. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING INTO THIS AGREEMENT.
[SIGNATURES APPEAR ON NEXT PAGE]
D-5
102
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be
executed in their corporate names as of the date first above written.
FLORIDA EAST COAST RAILWAY, L.L.C.,
a Florida limited liability company
By:
-------------------------------------
Title:
----------------------------------
FLAGLER DEVELOPMENT COMPANY,
a Florida corporation
By:
-------------------------------------
Title:
----------------------------------
GRAN CENTRAL--DEERWOOD NORTH, L.L.C., a
Delaware limited liability company
By:
-------------------------------------
Title:
----------------------------------
FLORIDA EXPRESS CARRIERS, INC.,
a Florida corporation
By:
-------------------------------------
Title:
----------------------------------
FLORIDA EXPRESS LOGISTICS, INC., a
Florida corporation
By:
-------------------------------------
Title:
----------------------------------
FLORIDA EAST COAST DELIVERIES, INC.,
a Florida corporation
By:
-------------------------------------
Title:
----------------------------------
RAILROAD TRACK CONSTRUCTION CORP.,
a Florida corporation
By:
-------------------------------------
Title:
----------------------------------
D-6
103
EXHIBIT E
CONDITIONS TO INITIAL LOANS
This is Exhibit E to that certain Credit Agreement dated as of March
22, 2001, among FLORIDA EAST COAST INDUSTRIES, INC., the Banks listed therein,
BANK OF AMERICA, N.A., , as Administrative Agent for the Banks, and as Swingline
Bank and Letter of Credit Issuing Bank, FIRST UNION NATIONAL BANK, as
Syndication Agent, and SUNTRUST BANK, as Documentation Agent for the Banks (the
"Agreement"). All capitalized terms used but not defined herein or in the
appendices hereto shall have the meanings given to them in the Agreement.
1. The Borrower shall have delivered, or caused to be delivered, to
each Bank:
(a) A duplicate original of the Agreement executed on the Borrower's
behalf by its duly authorized officer.
(b) A duly executed Revolving Note payable to its order and otherwise
complying with the provisions of Section 1.03(a) of the Agreement.
(c) The written opinions of Sidley & Austin, counsel to the Borrower,
and the Borrower's general counsel addressing the matters and substantially in
the form attached as Appendix 1 to this Exhibit, and addressing such other legal
matters as the Banks and their counsel may require.
2. The Borrower shall have delivered, or caused to be delivered, to the
Administrative Agent:
(a) A copy of the Articles of Incorporation of the Borrower and each
other Group Member, as amended, certified as of a recent date by a State
Official.
(b) A certificate of a State Official, dated as of a recent date, as to
the good standing and charter documents of the Borrower and each other Group
Member, on file in the office of such State Official.
(c) A certificate of the Secretary or an Assistant Secretary of the
Borrower and each other Group Member dated as of the Closing Date substantially
in the form attached as Appendix 2 to this Exhibit.
(d) A certificate substantially in the form attached as Appendix 3 to
this Exhibit certifying that (i) the Borrower is in compliance with all the
terms and provisions of the Agreement and at the time of and immediately after
such borrowing no Default has occurred or is continuing, and (ii) the
representations and warranties contained in Article IV of the Agreement are true
and correct in all material respects.
(e) Duly executed duplicate originals of the Guaranty Agreement.
▇-▇
▇▇▇
(▇) Duly executed duplicate originals of the Pledge Agreement.
(g) Certified copies of all consents and required governmental
approvals, if any, necessary for the execution, delivery and performance of the
Agreement, the Notes and the other Loan Documents and the transactions
contemplated thereby.
(h) A certificate of insurance showing that the insurance required by
Section 5.03 of the Agreement has been obtained.
(i) Evidence satisfactory to the Administrative Agent that no property
of the Borrower is subject to any Lien except Permitted Liens, including lien
searches in each jurisdiction in which the Borrower conducts rail operations and
hold assets.
(j) A duly executed and delivered Certificate Regarding Solvency (in
the form of Appendix 4 hereto) dated the Closing Date and signed on the
Borrower's behalf by its chief financial officer.
(k) Payment in full of all fees required to be paid on the Closing Date
and all of the Administrative Agent's out-of-pocket costs and expenses
(including counsel fees and disbursements) payable in accordance with Section
10.03 for which invoices have been submitted on or prior to such date.
(l) Evidence satisfactory to the Administrative Agent that the Banks
have a first priority perfected security interest in the Collateral securing the
Obligations.
(m) Stock (or membership interest) certificates evidencing the
Collateral and corresponding stock powers executed in blank.
(n) Such other documents as the Administrative Agent, the Banks and
their counsel may reasonably request.
3. The Borrower shall have delivered to the Swingline Bank a duly
executed Swingline Note payable to its order and otherwise complying with the
provisions of Section 1.03(b) of the Agreement.
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105
APPENDIX 1
FORM OF OPINION
[Closing Date]
[Addressed to the Agent and the Banks]
Ladies and Gentlemen:
We have acted as counsel to Florida East Coast Industries, Inc., a
Florida corporation (the "Borrower"), and its subsidiaries (collectively, the
"Guarantors") in connection with the preparation, execution and delivery of the
Credit Agreement dated as of March 22, 2001 (the "Credit Agreement"), among the
Borrower, the Banks listed therein (collectively, the "Banks"), Bank Of America,
N.A., as Administrative Agent for the Banks, and as Swingline Bank and Letter of
Credit Issuing Bank, _____________ Bank, as Syndication Agent, and _____________
Bank, as Documentation Agent for the Banks. Terms capitalized but not defined
herein shall have the meanings given to them in the Credit Agreement.
In so acting, we have reviewed executed copies of the following
documents:
(i) the Credit Agreement;
(ii) the Notes;
(iii) the Guaranty Agreement; and
(iv) the Pledge Agreement.
We have relied upon originals or copies certified or otherwise
identified to our satisfaction, of such records, documents, certificates, and
other instruments, and have made such other investigations, as in our judgment
are necessary or appropriate to enable us to render the opinions expressed
below. Except with respect to the Borrower and the Guarantors, we have assumed
the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified copies or photocopies and the
authenticity of the originals of such latter documents.
Based upon and subject to the foregoing and the qualifications and
assumptions set forth below, we are of the opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Florida, and each Guarantor is
duly organized, validly existing and in good standing in each case under the
laws of the jurisdiction of its organization. Each of the Borrower and the
Guarantors has the corporate power and authority to own its respective
properties and to carry on its respective businesses as now conducted and is
duly
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qualified to do business, and is in good standing as a foreign entity in all
jurisdictions wherein such qualification is required by reason of the nature of
its business and activities or the location of its property. The Borrower has
the corporate power to execute, deliver and perform the Credit Agreement, to
borrow thereunder and to execute and deliver the Notes. Each Guarantor has the
corporate power to execute, deliver and perform the Loan Documents to which it
is a party.
2. The execution and delivery by the Borrower and the Guarantors and
the performance by the Borrower and the Guarantors of the obligations provided
for in, the Loan Documents have been duly authorized by all proper and necessary
corporate action. Each of the Loan Documents to which the Borrower and the
Guarantors are a party have been duly executed and delivered by the Borrower and
the Guarantors, as applicable.
3. The Loan Documents to which the Borrower is a party constitute the
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their terms, except as may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and (b) general principles of equity
(whether considered in a proceeding in at law or in equity).
4. The Loan Documents to which any Guarantor is a party constitute the
legal, valid and binding obligations of such Guarantor enforceable against such
Guarantor in accordance with their terms, except as may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and (b) general principles of equity
(whether considered in a proceeding in at law or in equity).
5. The Collateral constitutes all of the Capital Securities of FECR.
6. The Pledge Agreement is in a form sufficient to create a valid
security interest under Article 8 of the Uniform Commercial Code as adopted in
the State of New York (the "UCC") in those items and types of Collateral (as
such term is defined in the Pledge Agreement) which are subject to the
provisions of Article 8 of the UCC as security for payment of the Loans.
7. Possession by the Administrative Agent of stock certificates
representing the Collateral will be sufficient to perfect the security interest
created by the Pledge Agreement in such Collateral.
8. No action, suit, proceeding, inquiry or investigation before or by
any arbitrator or any court, public body, board, administrative agency or other
Governmental Authority is pending or, to best of our knowledge, threatened
against or affecting the Borrower or any Guarantor.
9. To the best of our knowledge, neither the Borrower nor any Guarantor
is in default with respect to any judgment, writ, injunction, decree, rule or
regulation of any governmental instrumentality or other agency where such
default could have a material and adverse affect on the financial condition of
the Borrower or of the Borrower and the Guarantors taken as a whole.
10. No approval of, consent from or filing with any Governmental
Authority or any other Person, which approval, consent or filing has not
heretofore been obtained, given or made,
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is required in connection with the execution and delivery by the Borrower or the
Guarantors of any of the Loan Documents.
11. The execution and delivery of the Loan Documents, the consummation
of the transactions therein contemplated, the performance of and compliance with
the provisions thereof and the application of the proceeds of the Loans as
therein contemplated do not and will not (A) violate, conflict with, result in
the breach of, or constitute a default under (i) any provision of law, (ii) the
Organizational Documents of the Borrower or any Guarantor, (iii) any instrument,
agreement or contract to which the Borrower or any Guarantor is a party, or by
or to which the Borrower or any Guarantor or any properties of the Borrower or
any Guarantor may be affected, bound or subject, or (iv) any order, writ,
injunction or decree of any court, arbitrator or Governmental Authority, or (B)
result in the creation or imposition of any lien, charge or encumbrance upon any
assets of the Borrower.
12. The execution, delivery and performance of the Credit Agreement and
the use of the proceeds of the Loans thereunder do not and will not constitute a
violation of Regulations D, X or U of the Board of Governors of the Federal
Reserve System.
13. The Agent and the Banks will not be (i) deemed to be doing business
for purposes of any requirement for qualification as a foreign corporation in
Florida or New York solely by reason of making the Loans or enforcing any of the
Loan Documents, or (ii) denied access to the court system of such jurisdictions
by reason of not having so qualified in such jurisdiction on the sole basis of
having made the Loans or enforcing the Loan Documents. We express no opinion in
this paragraph with respect to any other loans or activities of the Agent and
the Banks, and the Agent and the Banks shall not, nor shall they have any right
to, rely on such opinion in connection with any loans or activities except those
expressly referred to in the first sentence of this paragraph.
14. The payment by the Borrower and receipt by the Banks, as
applicable, of interest and other payments required to be paid pursuant to the
terms of Credit Agreement and the Notes will not constitute unlawful interest or
otherwise violate the usury laws of the State of Florida or the State of New
York.
This opinion is being delivered to you at the request of our clients
pursuant to Section 1(c) of Exhibit C to the Credit Agreement. This opinion is
solely for your benefit and may not be relied upon by any other person without
our prior written consent.
We are members of the Bar of State of New York and express no opinion
with respect to the law of any jurisdiction other than the laws of the State of
New York and the federal laws of the United States, in each case as in effect on
the date hereof. [As to matters of Florida law, we have relied on the opinions
of counsel qualified in such state (copy of which is attached hereto), and we
are of the opinion that you are justified in relying thereon.]
Very truly yours,
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APPENDIX 2
FORM OF SECRETARY'S CERTIFICATE
FLORIDA EAST COAST INDUSTRIES, INC.,
a Florida corporation
(the "Company")
SECRETARY'S CERTIFICATE REGARDING
INCUMBENCY, RESOLUTIONS,
ARTICLES OF INCORPORATION AND BYLAWS
The undersigned, being the duly appointed, qualified and acting
Secretary of the Company, hereby certifies that the persons named below are, on
the date hereof, the duly elected, qualified and acting officers of the Company
and occupy the offices set opposite their respective names, and the signatures
opposite their names below are their true and correct signatures:
NAME OFFICE SIGNATURE
-------------- ----------------- ------------------
-------------- ----------------- -------------------
and hereby further certifies that:
(a) The Board of Directors of the Company adopted, on ____________,
2001, at a duly called meeting at which a quorum was present and voting
throughout, the resolutions set forth in Exhibit A attached hereto, none of
which has been amended or repealed in any respect since such date, and all of
which remain in full force and effect as of the date hereof.
(b) Attached hereto as Exhibit B is a true, correct and complete copy
of the Articles of Incorporation of the Company, certified by the appropriate
State Official, and no action has been taken by the Board of Directors of the
Company or its Stockholders to amend or in contemplation of amending the
Articles of Incorporation since such certification date.
(c) Attached hereto as Exhibit C is a true, correct and complete copy
of the Bylaws of the Company in effect on the date hereof.
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IN WITNESS WHEREOF, I have hereunto set my hand and the corporate seal
of the Company as of this ___ day of ________________, 2001.
--------------------------
______________, Secretary
[SEAL]
I, ___________________, President of the Company do hereby certify that
__________________ is the duly elected, qualified and acting Secretary of the
Company, and that his/her signature set forth above is his/her true signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of this __ day of
_________, 2001.
--------------------------
___________________, President
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110
APPENDIX 3
CLOSING CERTIFICATE
I, __________________, hereby certify that (a) I am President of Florida East
Coast Industries, Inc., a Florida corporation (the "Borrower"), and am familiar
with the business of the Borrower and the Credit Agreement (the "Credit
Agreement") dated as of March 22, 2001, among the Borrower, the Banks listed
therein (collectively, the "Banks"), Bank Of America, N.A., , as Administrative
Agent for the Banks, and as Swingline Bank and Letter of Credit Issuing Bank,
First Union National Bank, as Syndication Agent, and SunTrust Bank, as
Documentation Agent for the Banks; (b) as of the date hereof and after giving
effect to the Loans being made on the date hereof, the Borrower has observed,
performed and fulfilled each and every obligation and covenant contained in the
Credit Agreement; (c) the Borrower is not in Default under any of the same; and
(d) the representations and warranties set forth in Article IV of the Credit
Agreement are true and correct in all material respects as of the date hereof.
Date: _________________ By: ________________________________
__________________, President
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APPENDIX 4
CERTIFICATE REGARDING SOLVENCY
Florida East Coast Industries, Inc.
Pursuant to the Credit Agreement (the "Credit Agreement") dated as of March 22,
2001, among Florida East Coast Industries, Inc., a Florida corporation (the
"Borrower"), the Banks listed therein (collectively, the "Banks"), Bank Of
America, N.A., , as Administrative Agent for the Banks (in such capacity, the
"Agent"), and as Swingline Bank and Letter of Credit Issuing Bank, First Union
National Bank, as Syndication Agent, and SunTrust Bank, as Documentation Agent
for the Banks, the Borrower has requested that the Banks extend credit to the
Borrower in an aggregate principal amount of up to $375,000,000. The proceeds
from the Credit Agreement will be used by the Borrower and the Guarantors
(defined below) (i) for working capital, capital expenditures and other lawful
corporate purposes, (ii) to finance certain acquisitions and (iii) to finance
certain capital stock repurchases, subject to the limits set forth in the Credit
Agreement. The Banks are willing to extend such credit on the terms and subject
to the conditions set forth in the Credit Agreement, which requires among other
things the delivery of this Certificate Regarding Solvency pursuant to Exhibit D
of the Credit Agreement. Unless otherwise defined herein, terms used herein have
the meanings provided in the Credit Agreement.
ACCORDINGLY,
The undersigned hereby certifies that he/she is the Chief Financial
Officer of the Borrower, and that, as such, he/she is authorized to execute this
Certificate on behalf of the Borrower and further certifies that:
(a) In connection with the Credit Agreement, and the other
Loan Documents, the undersigned has, through the date hereof, monitored
the financial condition and operations of the Borrower and the
undersigned has knowledge of, and has participated in, the development
and negotiation of the transactions contemplated by the Credit
Agreement and the other Loan Documents.
(b) The undersigned and his/her staff have developed detailed
cash flow projections for the Borrower and each of the subsidiaries of
the Borrower guaranteeing the Loans (the "Guarantors"), which (after
giving effect to the Credit Agreement and the other Loan Documents)
constitute the Pro Forma Financial Statements (copies of which are
attached hereto as Exhibit 1). The Pro Forma Financial Statements are
based on the financial information described in Section 4.04 of the
Credit Agreement, historical financial statements and records of the
Borrower and the Guarantors, and the assumptions described in the notes
accompanying the Pro Forma Financial Statements.
(c) The Pro Forma Financial Statements give effect to the
consummation of the transactions contemplated by the Credit Agreement
and the other Loan Documents.
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(d) The undersigned is familiar with the process through which
the Pro Forma Financial Statements were generated and prepared. In
making the statements set forth in paragraph (e) hereof, the
undersigned has considered the current and anticipated future capital
requirements of the Borrower and each of the Guarantors (after giving
effect to the Credit Agreement and the other Loan Documents) for the
current and anticipated future conduct of the business of the Borrower
and each of the Guarantors.
(e) Based on the information reflected in the Pro Forma
Financial Statements and the undersigned's involvement in the process
of collecting such information, the Agent and the Banks may rely on the
Pro Forma Financial Statements
(i) as a fair and reasonable presentation of
the pro forma revenues, expenses and financial operations of
the Borrower and each of the Guarantors, as of the date
hereof, on a going-concern basis, and
(ii) as being a reasonable projection of the
revenues, expenses and cash flows of the Borrower and each of
the Guarantors,
in each case after giving effect to the Credit Agreement and the other
Loan Documents and on the basis of the assumptions stated in the Pro
Forma Financial Statements.
(f) Based on and subject to the foregoing, and in light of the
historical performance of the Borrower and each of the Guarantors as
reflected in its historical financial statements and discussions with
operating and financial management, the assumptions set forth in the
Pro Forma Financial Statements are reasonable.
(g) Immediately following the execution of the Credit
Agreement and the other Loan Documents given the reasonableness of the
Pro Forma Financial Statements (and even allowing for some
less-than-projected performance), the Borrower and each of the
Guarantors will be able to pay its Debts (as defined below) as they
become due, will have assets which will have a "present fair saleable
value" greater on a going-concern basis than its probable liability on
its Debts as they become absolute and matured, and will have assets on
a going-concern basis which will have a fair saleable value greater
than the sum of all its Debts.
(h) Both before and after giving effect to the Credit
Agreement and the other Loan Documents, each of the Borrower and the
Guarantors (i) does not have unreasonably small capital, (ii) is not
engaged in businesses or transactions for which it has unreasonably
small capital, and (iii) does not intend to be engaged in any
businesses or transactions for which it has unreasonably small capital.
(i) Both before and after giving effect to the Credit
Agreement and the other Loan Documents, to the best of the
undersigned's knowledge after due inquiry, the Borrower and each of the
Guarantors will not incur Debts beyond its ability to pay them as they
mature.
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(j) For purposes hereof, the "fair saleable value" of the
Borrower's and each of the Guarantors' assets and investments has been
determined on the basis of the amount which may be realized within a
reasonable time, either through collection or sale of such investments
and other assets at the regular market value, conceiving the latter as
the amount which could be obtained for the property in question within
such period by a capable and diligent business person from an
interested buyer who is willing to purchase under ordinary selling
conditions. "Debts" means all liabilities, obligations, commitments,
and indebtedness of any and every kind and nature (including all
obligations to trade creditors and all guaranties), whether heretofore,
now, or hereafter owing, arising, due, or payable by the Borrower and
each of the Guarantors to any person and howsoever evidenced, created,
incurred, acquired, or owing, whether primary, secondary, direct,
contingent, fixed, or otherwise.
(k) The undersigned has carefully reviewed the contents of
this Certificate and has conferred with legal counsel of its choosing
for the purpose of discussing the meaning of its contents.
(l) The undersigned acknowledges that the Agent and the Banks
have relied upon the statements contained herein and consents to such
reliance.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
Regarding Solvency this ____ day of March, 2001.
FLORIDA EAST COAST INDUSTRIES, INC.
By: ___________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Financial Officer
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EXHIBIT F
COMMITMENT TRANSFER SUPPLEMENT
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of March 22, 2001, among Florida East Coast Industries, Inc., a Florida
corporation (the "Borrower"), the Banks (as defined in the Credit Agreement),
Bank Of America, N.A., as Administrative Agent for the Banks (in such capacity,
the "Agent"), and as Swingline Bank and Letter of Credit Issuing Bank, First
Union National Bank, as Syndication Agent, and SunTrust Bank, as Documentation
Agent for the Banks. Terms defined in the Credit Agreement are used herein with
the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Commitment and the
amount of the Loans owing to the Assignee will be as set forth on Schedule 1
hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Group Member or
the performance or observance by any Group Member of any of its obligations
under the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Note held by the Assignor and requests that the
Agent exchange such Note for new Notes payable to the order of the Assignee in
an amount equal to the Commitment assumed by the Assignee pursuant hereto and to
the Assignor in an amount equal to the Commitment retained by the Assignor, if
any, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.04 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Commitment Transfer Supplement; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to
F-1
115
the Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Bank.
4. Following the execution of this Commitment Transfer Supplement, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Commitment Transfer Supplement (the "Effective Date")
shall be the date of acceptance hereof by the Agent, unless otherwise specified
on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Commitment Transfer Supplement, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
provided in this Commitment Transfer Supplement, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, Commitment Fees, Utilization
Fees and other fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Commitment Transfer Supplement shall in all respects be
governed by and construed in accordance with the laws of the State of New York
(including, without limitation, Sections 5-1401 and 5-1402 of the New York
General Obligations Law), but excluding, to the fullest extent permitted by
applicable law, all other choice of law and conflict of law rules.
8. This Commitment Transfer Supplement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Commitment Transfer Supplement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Commitment Transfer Supplement.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Commitment Transfer Supplement to be executed by their officers
thereunto duly authorized as of the date specified thereon.
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116
SCHEDULE 1
to
COMMITMENT TRANSFER SUPPLEMENT
Percentage interest assigned: ______%
Assignee's Commitment: $_____
Aggregate outstanding principal amount
of Loans assigned: $_____
Principal amount of Note payable to Assignee: $_____
Principal amount of Note payable to Assignor: $_____
Effective Date (if other than date
of acceptance by Agent): * _____, 20__
[NAME OF ASSIGNOR], as Assignor
By:
----------------------------
Title:
Dated: __________, 20__
[NAME OF ASSIGNEE], as Assignee
By:
----------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business Days after the
delivery of this Commitment Transfer Supplement to the Agent.
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Accepted [and Approved] **
this ___ day of __________, 20 __
BANK OF AMERICA, N.A.
By:
---------------------------------
Title:
[Approved this ___ day
of __________, 20__
FLORIDA EAST COAST INDUSTRIES, INC.
By: ]**
---------------------------------
Title:
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
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EXHIBIT G
COMPLIANCE CERTIFICATE
[Date]
Bank of America, N.A., as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to the Credit Agreement (the "Credit Agreement") dated as of
March 22, 2001, among Florida East Coast Industries, Inc., a Florida corporation
(the "Borrower"), the Banks listed therein (collectively, the "Banks"), Bank Of
America, N.A., , as Administrative Agent for the Banks, and as Swingline Bank
and Letter of Credit Issuing Bank, First Union National Bank, as Syndication
Agent, and SunTrust Bank, as Documentation Agent for the Banks, the Borrower and
the undersigned officer of the Borrower hereby certify that (a) the information
furnished below in this certificate was true and correct as of the last day of
the fiscal quarter next preceding the date of this certificate, (b) as of the
date hereof and since the last day of the calendar quarter next preceding the
date of this certificate, no Default or Event of Default under the Credit
Agreement has occurred, and (c) the financial statements delivered herewith were
prepared in accordance with generally accepted accounting principles. Except as
otherwise specified in this certificate, the terms used herein shall have the
same meanings ascribed to them in the Credit Agreement. The following
computations are derived from the Working Sheet attached to this certificate.
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119
Required Under
Credit Agreement Actual
---------------- ------
Minimum Fixed Charge Coverage Ratio 1.25 to 1.00 ________
Maximum Leverage Ratio ____ to 1.00 ________
Minimum Group Net Worth
Prior to March 31, 2001 $675,000 ________
On and After March 31, 2001 $675,000 plus ________
(i) 50% of Group
Net Income (but
not any net losses)
for each fiscal quarter ending
on or after March 31, 2001
and (ii) 100% of the
Net Cash Proceeds of any
issuances by Borrower
of Capital Securities
Maximum Global Leverage Ratio 3.50 to 1.00 ________
IN WITNESS WHEREOF, the undersigned has executed this certificate on
this ____ day of __________, 200 .
FLORIDA EAST COAST INDUSTRIES, INC.
By:
---------------------------------
Name:
-------------------------------
Title: Chief Financial Officer
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120
COMPLIANCE CERTIFICATE WORKING SHEET
DETERMINATION DATE: LAST DAY OF FISCAL QUARTER ENDED _________, ____
Group Net Income
(a) consolidated net income of the Borrower Group (taken as a
cumulative whole), for the four fiscal quarters of the
Borrower most recently ended
$
------------
minus
(b) (i) any net income of a member of the Borrower Group
to the extent that the declaration or payment of
dividends or similar distributions by that member is
not at the time permitted by operation of the terms
of any contract or applicable law
$
------------
(ii) any net income (or net loss) of any Person
(other than a member of the Borrower Group) in which
any member of the Borrower Group has an ownership
interest, except to the extent that any such income
has actually been received by such member in the form
of cash dividends or similar distributions
$
------------
(iii) any net gains or losses on the sale or other
disposition, not in the ordinary course of business,
of investments and other capital assets, or with
respect to the disposition of obsolete or unusable
property (excluding any related charges for taxes
thereon)
$
------------
(iv) any net gain arising from the collection of the
proceeds of any insurance policy
$
------------
(v) any write-up of any asset
$
------------
(vi) any net gains resulting from the defeasance of
any Debt
$
------------
(vii) any extraordinary gains or losses
$
------------
Total ((b)(i) through (b)(vii))
$
============
Group Net Income ((a) minus (b))
$
============
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121
Debt
(a) all obligations for borrowed money or the
deferred purchase price of goods or services (except trade
payables in the ordinary course of business)
$
------------
(b) all obligations evidenced by promissory notes
$
------------
(c) all obligations for long term debt and bonds
(excluding defeased obligations)
$
------------
(d) all obligations in respect of any Guaranty (other
than endorsements of checks for deposit in the ordinary course
of business)
$
------------
(e) all obligations in respect of any Capital Leases
$
------------
(f) all obligations, indebtedness and liabilities,
including any refinancings thereof, secured by any lien or any
security interest on any property or assets
$
------------
(g) all Mandatorily Redeemable Securities valued in
accordance with Generally Accepted Accounting Principles
$
------------
Total Debt (the sum of (a) through (g))
$
============
G-4
122
Group Interest Expense
(a) to the extent deducted in determining Net Income
for any period, the aggregate amount of all interest expense
of the Borrower Group during such period (including, without
limitation, the interest component of payments under Capital
Leases)
$
------------
(b) the aggregate amount of net amounts payable (or
minus the net amounts receivable) under any permitted Rate
Hedging Agreement accrued during such period (whether or not
actually paid or received during such period), determined on a
consolidated basis for the Borrower Group in accordance with
Generally Accepted Accounting Principles
$
------------
Total Group Interest Expense (the sum of (a) plus (b))
$
============
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123
Group EBITDA
(a) Group Net Income (from item 1) $
------------------
(b) plus, to the extent deducted in determining Group Net Income,
(i) the aggregate amount of income tax expense, determined on a
consolidated basis for the Borrower Group in accordance with Generally Accepted
Accounting Principles $
------------------
(ii) Group Interest Expense (from item 3) $
------------------
(iii) the aggregate amount of depreciation expense and amortization
expense, determined on a consolidated basis for the Borrower Group
in accordance with Generally Accepted Accounting Principles $
------------------
Total (b)(i) through (b)(iii)) $
==================
minus
(c)(i) with respect to each project of Flagler financed with Non-recourse
Debt, the sum of the amounts of any positive EBITDA from each such project $
------------------
plus
(ii) the lesser of
(1) 50% of ▇▇▇▇▇▇ Free Cash Flow and
(2) 10% of EBITDA of the Borrower Group $
------------------
Total (c)(i) plus (c)(ii) $
------------------
Group EBITDA ((a) plus (b), minus (c)) $
==================
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Group Debt
(a) the aggregate amount of all Debt of the Borrower Group, determined on a
consolidated basis (including, but not limited to): $
------------------
(i) all obligations for borrowed money or the deferred
purchase price of goods or services (except trade payables in the
ordinary course of business)
(ii) all obligations evidenced by promissory notes
(iii) all obligations for long term debt and bonds (excluding defeased
obligations)
(iv) all obligations in respect of any Guaranty (other than endorsements
of checks for deposit in the ordinary course of business)
(v) all obligations in respect of any Capital Leases
(vi) all obligations, indebtedness and liabilities, including any
refinancings thereof, secured by any lien or any security interest on any property
or assets
(vii) all Mandatorily Redeemable Securities valued in accordance with
Generally Accepted Accounting Principles
plus
(b) all Debt consisting of recourse obligations of Flagler $
------------------
minus
(c) any Non-recourse Debt of Flagler $
------------------
Group Debt ((a) plus (b) minus (c)) $
==================
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125
Group Net Worth
(a) stockholder's equity on the consolidated balance sheet of the
Borrower Group $
------------------
minus
(b) amounts carried on the consolidated financial statements of the Borrower Group
for net losses $
------------------
(c) any writeup in the book value of any assets of the Borrower Group
resulting from a revaluation thereof subsequent to December 31, 2000 $
------------------
(d) treasury stock $
------------------
(e) unamortized debt discount expense $
------------------
(f) any cost of investments in excess of the fair market value of net assets
acquired at the time of acquisition by any member of the Borrower Group $
------------------
(g) patents, patent applications, copyrights, trademarks, tradenames, experimental
or organizational expenses and other like intangibles $
------------------
(h) Total deductions (the sum of (b) through (g)) $
==================
Group Net Worth ((a) minus (h)) $
==================
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126
Leverage Ratio
(a) Group Debt at any time $
------------------
to
(b) Group EBITDA for the four quarters most recently ended at or before such time
and for which financial statements have been delivered $
------------------
Ratio of (a) to (b) to 1.00
=========
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127
Group Net Worth
(1) Minimum Group Net Worth (prior to March 31, 2001) $
------------------
(2) (a) Minimum Group Net Worth (on or after March 31, 2001) $675,000 $
------------------
plus
(b) 50% of Group Net Income (but not any net losses) for each of the Borrower's
fiscal quarters ending on or after March 31, 2001 $
------------------
(c) 100% of the Net Cash Proceeds of any issuances by Borrower of Capital
Securities $
------------------
Group Net Worth (on or after March 31, 2001(sum of (a), (b) and (c)) $
==================
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128
Fixed Charge Coverage Ratio
(a) Group EBITDA $
-------------------
to
(b) the sum of
(i) scheduled payments of principal of Group Debt $
-------------------
(ii) Group Interest Expense (provided that Group Interest Expense
shall exclude any Group Interest Expense from any particular project
of Flagler the Non-recourse Debt of which is excluded from Group
Debt) $
-------------------
(iii) the amount of ordinary dividends, and distributions, paid in
cash by the Borrower Group (other than any such ordinary dividend or
distribution payments made to the Borrower Group), determined on a
consolidated basis $
-------------------
(iv) Group Income Tax Expenses paid in cash by the Borrower Group $
-------------------
(v) Capital Expenditures required to sustain (but not expand) the ongoing
operations of the Borrower Group $
-------------------
Total ((b)(i) through (b)(v)) $
===================
Ratio of (a) to (b) to 1.00
=========
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129
Global Leverage Ratio
(a) Global Debt
(i) Group Debt at any time $
-------------------
plus
(ii) Debt of EPIK at such time $
-------------------
Total ((a)(i) and (a)(ii)) $
-------------------
to
(b) Global EBITDA
(i) Group EBITDA for the four quarters most recently ended at
or before such time and for which financial statements have been delivered $
-------------------
plus
(ii) EBITDA of EPIK for such period $
-------------------
Total ((b)(i) and (b)(ii)) $
===================
Ratio of (a) to (b) $
-------------------
Prepared by:
-------------------------
Title:
-------------------------
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130
EXHIBIT H
FORM OF TRAFFIC SUMMARY
FLORIDA EAST COAST RAILWAY COMPANY
Florida East Coast Industries, Inc.
St. Augustine, Florida Traffic Statistics
-------------------------------------------------------------------------------------------------------------------
2000 2001 2002 2003 2004 2005
---- ---- ---- ---- ---- ----
CARLOADS (M'S)
---------------------------------------------
Commodity
Intermodal
TOFC/COFC
Carloads
Crushed Stone
Construction Material
Vehicles (includes parts)
Foodstuffs
Chemicals
Paper (Lumber)
Other
Subtotal
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Total
REVENUES (M'S)
---------------------------------------------
Commodity
Intermodal - Revenue
TOFC/COFC
Carload - Revenue
Crushed Stone
Construction Material
Vehicles (includes parts)
Foodstuffs
Chemicals
Paper (Lumber)
Other
Subtotal
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Total
UNIT REVENUES ( )
---------------------------------------------
Commodity
Intermodal - Revenue
TOFC/COFC
Carload - Revenue
Crushed Stone
Construction Material
Vehicles (includes parts)
Foodstuffs
Chemicals
Paper (Lumber)
Other
Subtotal
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Total
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EXHIBIT I
NOTICE OF BORROWING
TO: Bank of America, N.A. DATE: ____________
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Irrevocable notice is hereby given pursuant to the Credit Agreement ("Credit
Agreement") dated as of March 22, 2001 among Florida East Coast Industries,
Inc., the Banks named therein, and Bank of America, N.A. as Administrative Agent
for the Banks, of the Revolving Loan specified herein. Capitalized terms used
herein but not defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
1. The Business Day of the proposed borrowing is ________________, _____.
2. The aggregate amount of the proposed borrowing is $____________.
3. $____________ of the proposed borrowing is to be a Base Rate Loan.
$_______________ of the proposed borrowing is to be a Eurodollar Loan.
4. The initial Interest Period for a Eurodollar Loan shall be [one] [two]
[three] [six] months.
5. The Revolving Loans should be disbursed as follows:
----------------------------------------------------.
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed borrowing, before and
after giving effect thereto and to the application of the proceeds therefrom:
i) the applicable representations and warranties of the
undersigned contained in Article 4 of the Credit Agreement are true and correct
in all material respects as though made on and as of such date; and
ii) no Default or Event of Default has occurred and is
continuing or shall result from such proposed borrowing.
iii) no event has occurred since the date of the most recent
financial statements delivered pursuant to the Credit Agreement which could
reasonably be expected to have a Material Adverse Effect.
FLORIDA EAST COAST INDUSTRIES, INC.
By: _________________________
Name:
Title:
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EXHIBIT C
PLEDGE AGREEMENT
C-1