REVOLVING CREDIT AGREEMENT
dated as of January __, 2002
among
PATRIOT TRANSPORTATION HOLDING, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION 1
Section 1.1 Definitions. 1
Section 1.2 Classifications of Loans and Borrowings 13
Section 1.3 Accounting Terms and Determination 13
Section 1.4 Terms Generally 13
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS 14
Section 2.1 General Description of Facility 14
Section 2.2 Revolving Loans 14
Section 2.3 Procedure for Revolving Borrowings 14
Section 2.4 Swingline Commitment 14
Section 2.5 Procedure for Swingline Borrowing; Etc. 15
Section 2.6 Funding of Borrowings 15
Section 2.7 Interest Elections 16
Section 2.8 Optional Reduction and Termination of Commitments 17
Section 2.9 Repayment of Loans 17
Section 2.10 Evidence of Indebtedness 17
Section 2.11 Optional Prepayments 18
Section 2.12 Interest on Loans 18
Section 2.13 Fees 19
Section 2.14 Computation of Interest and Fees 19
Section 2.15 Inability to Determine Interest Rates 19
Section 2.16 Illegality 19
Section 2.17 Increased Costs 20
Section 2.18 Funding Indemnity 20
Section 2.19 Taxes 21
Section 2.20 Payments Generally; Pro Rata Treatment; Sharing
of Set-offs 22
i
Section 2.21 Mitigation of Obligations 23
ARTICLE III CONDITIONS PRECEDENT TO LOANS 23
Section 3.1 Conditions To Effectiveness 23
Section 3.2 Each Credit Event 24
Section 3.3 Delivery of Documents 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES 24
Section 4.1 Existence; Power 25
Section 4.2 Organizational Power; Authorization 25
Section 4.3 Governmental Approvals; No Conflicts 25
Section 4.4 Financial Statements 25
Section 4.5 Litigation and Environmental Matters 25
Section 4.6 Compliance with Laws and Agreements 25
Section 4.7 Investment Company Act, Etc. 26
Section 4.8 Taxes 26
Section 4.9 Margin Regulations 26
Section 4.10 ERISA 26
Section 4.11 Ownership of Property 26
Section 4.12 Disclosure 26
Section 4.13 Labor Relations 27
Section 4.14 Subsidiaries 27
Section 4.15 Legal Name 27
Section 4.16 No Restrictions on Dividends 27
Section 4.17 Solvency 27
Section 4.18 Insurance 27
Section 4.19 Outstanding Indebtedness 27
ARTICLE V AFFIRMATIVE COVENANTS 27
Section 5.1 Financial Statements and Other Information 27
Ii
Section 5.2 Notices of Material Events 28
Section 5.3 Existence; Conduct of Business 29
Section 5.4 Compliance with Laws, Etc. 29
Section 5.5 Payment of Obligations 29
Section 5.6 Books and Records 29
Section 5.7 Visitation, Inspection, Etc. 29
Section 5.8 Maintenance of Properties; Insurance 29
Section 5.9 Use of Proceeds 30
Section 5.10 Additional Subsidiaries 30
Section 5.11 Compliance with Alabama Law 30
ARTICLE VI FINANCIAL COVENANTS 30
Section 6.1 Leverage Ratio 30
Section 6.2 Consolidated Adjusted Debt to EBITDAR Ratio 30
Section 6.3 Fixed Charge Coverage Ratio 31
ARTICLE VII NEGATIVE COVENANTS 31
Section 7.1 Indebtedness 31
Section 7.2 Negative Pledge 31
Section 7.3 Fundamental Changes 32
Section 7.4 Investments, Loans, Etc. 33
Section 7.5 Restricted Payments 33
Section 7.6 Sale of Assets 33
Section 7.7 Transactions with Affiliates 34
Section 7.8 Restrictive Agreements 34
Section 7.9 Sale and Leaseback Transactions 34
Section 7.10 Hedging Agreements 34
Section 7.11 Amendment to Material Documents 35
Section 7.12 Permitted Subordinated Indebtedness 35
iii
Section 7.13 Accounting Changes 35
Section 7.14 Name Changes 35
ARTICLE VIII EVENTS OF DEFAULT 35
Section 8.1 Events of Default 35
ARTICLE IX THE ADMINISTRATIVE AGENT 37
Section 9.1 Appointment of Administrative Agent 37
Section 9.2 Nature of Duties of Administrative Agent 37
Section 9.3 Lack of Reliance on the Administrative Agent 38
Section 9.4 Certain Rights of the Administrative Agent 38
Section 9.5 Reliance by Administrative Agent 38
Section 9.6 The Administrative Agent in its Individual
Capacity 38
Section 9.7 Successor Administrative Agent 38
ARTICLE X MISCELLANEOUS 39
Section 10.1 Notices 39
Section 10.2 Waiver; Amendments 40
Section 10.3 Expenses; Indemnification 41
Section 10.4 Successors and Assigns 42
Section 10.5 Governing Law; Jurisdiction; Consent to Service
of Process 43
Section 10.6 WAIVER OF JURY TRIAL 44
Section 10.7 Right of Setoff 44
Section 10.8 Counterparts; Integration 44
Section 10.9 Survival 44
Section 10.10 Severability 44
Section 10.11 Confidentiality 45
Section 10.12 Interest Rate Limitation 45
Schedules
Schedule 4.5 - Environmental Matters
iv
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement with
Schedule I and Annex I thereto
Exhibit E - Form of Indemnity, Subrogation and Contribution
Agreement
with Schedule I and Annex I thereto
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.7 - Notice of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is
made and entered into as of January __, 2002, by and among
PATRIOT TRANSPORTATION HOLDING, INC., a Florida corporation (the
"Borrower"), the several banks and other financial institutions
from time to time party hereto (the "Lenders"), and SUNTRUST
BANK, in its capacity as Administrative Agent for the Lenders
(the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders
establish a $37,000,000.00 revolving credit facility for the
benefit of the Borrower;
WHEREAS, subject to the terms and conditions of this
Agreement, the Lenders severally, to the extent of their
respective Commitments, are willing to establish the requested
revolving credit facility for the benefit of the Borrower.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, the Borrower, the Lenders
and the Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the
meanings herein specified (to be equally applicable to both the
singular and plural forms of the terms defined):
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Borrowing, the rate per annum
equal to LIBOR for such Interest Period.
"Administrative Agent" shall have the meaning assigned
to such term in the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with
respect to each Lender, an administrative questionnaire in the
form prepared by the Administrative Agent and submitted to the
Administrative Agent duly completed by such Lender.
"Affiliate" shall mean, as to any Person, any other
Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common
Control with, such Person.
"Aggregate Revolving Commitments" shall mean the sum
of the Revolving Commitments of all Lenders at any time
outstanding. On the Closing Date, the Aggregate Revolving
Commitments equal $37,000,000.00.
"Applicable Lending Office" shall mean, for each
Lender and for each Type of Loan, the "Lending Office" of such
Lender (or an Affiliate of such Lender) designated for such Type
of Loan in the Administrative Questionnaire submitted by such
Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its
Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean the respective number
of basis points per annum designated below determined based on
the Borrower's Consolidated Adjusted Debt to EBITDAR Ratio:
LEVEL Consol. Adj. Debt Applicable Margin
To EBITDAR (basis points per annum)
Commitment
Base Rate LIBOR Fee
I Greater than or
equal to
3.0 x to less than
or equal to 3.50x 1.00 215 50.0
II Greater than or
Equal to
2.50x to less than
3.0x 75.0 167.5 30.0
III Greater than or
equal to
1.50x to less than
2.50x 25.0 150 25.0
IV Less than 1.50x 0.0 135 20.0
; provided, however, that adjustments, if any, to the Applicable Margin based
changes in the Borrower's Consolidated Adjusted Debt to EBITDAR Ratio as set
forth above shall be calculated by the Administrative Agent quarterly, based
upon the Borrower's quarterly financial statements, on a rolling four quarter
basis, beginning with the Borrower's statements for the period ended September
30, 2001, and shall become effective (each an "Interest Rate Change Date"), (i)
if interest is based on the Base Rate, on the third Day after the
Administrative Agent receives the Covenant Compliance Certificate and/or the
financial statements reflecting such change in the Borrower's Consolidated
Adjusted Debt to EBITDAR Ratio or (ii) if interest is based on LIBOR, on the
first Day of the Interest Period following the Interest Period that the Bank
receives the Covenant Compliance Certificate and/or the financial statements
reflecting such change in the Borrower's Consolidated Adjusted Debt to EBITDAR
Ratio; and provided, further, however, if the Borrower shall fail to deliver
any such Covenant Compliance Certificate or financial statements within the
time period required pursuant to this Agreement, then the Applicable Margin
shall be at Level I until the appropriate Covenant Compliance Certificate or
financial statements, as the case may be, are so delivered. Notwithstanding
the foregoing, the Applicable Margin from the Closing Date until the date
that the financial statements and/or Covenant Compliance Certificate for the
fiscal quarter ending March 31, 2002 are required to be delivered to the
Administrative Agent shall be at Level III.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved
by the Administrative Agent.
"Availability Period" shall mean the period from the Closing Date to
the Commitment Termination Date.
"Base Rate" shall mean the per annum rate which the Administrative
Agent publicly announces from time to time to be its prime lending rate, as in
effect from time to time. The Administrative Agent's prime lending rate is a
reference rate and does not necessarily represent the lowest or best rate
charged to customers. The Administrative Agent may make commercial loans or
other loans at rates of interest at, above or below the Administrative Agent's
prime lending rate. Each change in the Administrative Agent's prime lending
rate shall be effective from and including the date such change is publicly
announced as being effective.
"Base Rate Loan" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Base Rate.
"Borrower" shall have the meaning in the introductory
paragraph hereof.
2
"Borrowing" shall mean a borrowing consisting of (i) Loans of the
same Class and Type, made, converted or continued on the same date and in the
case of Eurodollar Loans, as to which a single Interest Period is in effect, or
(ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday, Sunday
or other day on which commercial banks in Orlando, Florida are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into,
or an Interest Period for, a Eurodollar Loan or a notice with respect to any of
the foregoing, any day on which dealings in Dollars are carried on in the
London interbank market.
"Capital Expenditures" shall mean for any period, without
duplication, (i) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its Subsidiaries that are (or would
be) set forth on a consolidated statement of cash flows of the Borrower for
such period prepared in accordance with GAAP and (ii) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Change in Control" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or "group" (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof) of thirty percent (30%) or more of the outstanding
shares of the voting stock of the Borrower; or (c) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Borrower
by Persons who were neither (i) nominated by the current board of directors or
(ii) appointed by directors so nominated.
"Change in Law" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
(or for purposes of Section 2.17(b), by such Lender's holding company, if
applicable) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of
this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and
in effect from time to time.
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"Commitment Termination Date" shall mean the earliest of (i) December
31, 2004, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.8 or (iii) the date on which all amounts
3
outstanding under this Agreement have been declared or have automatically
become due and payable (whether by acceleration or otherwise).
"Consolidated Adjusted Debt" shall mean, as of any date of
determination, (a) Consolidated Total Debt, plus (b) to the extent not included
in clause (a), the present value of all future rental obligations on operating
leases having an original term of 12 months or more of the Borrower and its
Subsidiaries as determined in accordance with GAAP, applying a discount rate
of ten percent (10%) and using the Capitalized Operating Lease calculator
furnished to the Borrower by the Administrative Agent prior to the execution of
this Agreement.
"Consolidated Adjusted Debt to EBITDAR Ratio" shall mean, for any
period, the ratio of Consolidated Adjusted Debt to Consolidated EBITDAR.
"Consolidated Current Maturities of Long Term Debt" shall mean the
portion of Consolidated Long Term Debt of the Borrower and its Subsidiaries, on
a consolidated basis determined in accordance with GAAP, paid during the twelve
(12) month period ending on the last day of the month prior to the
date as of which said determination is to be made.
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense,
(ii) Consolidated Income Tax Expense, (iii) depreciation, depletion and
amortization and (iv) all other non-cash charges, determined on a consolidated
basis in accordance with GAAP in each case for such period.
"Consolidated EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA and (b) Consolidated Rental Expense; provided, however, for purposes of
determining compliance with the financial covenant contained in Section 6.2 and
determining the Applicable Margin for interest rate purposes, the one-time
charges of $3,435,000.00 associated with the closure of Borrower's subsidiary,
Patriot Transportation, Inc., shall not be included, but all future one-time
charges shall be included.
"Consolidated Income Tax Expense" shall mean, for the Borrower and
its Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the aggregate of (i) all taxes based upon or measured by
the income of the Borrower and its Subsidiaries and (ii) franchise taxes (based
on income) payable by the Borrower and its Subsidiaries.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total cash interest expense, including without
limitation the interest component of any payments in respect of Capital Leases
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period).
"Consolidated Long Term Debt" shall mean, for any period, all
Indebtedness of the Borrower and its Subsidiaries, or any portion thereof,
determined on a consolidated basis and in accordance with GAAP, the maturity of
which extends beyond twelve (12) months from the date of calculation of
Consolidated Long Term Debt.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses,
(ii) any gains attributable to write-ups of assets, (iii) any
equity interest of the Borrower or any Subsidiary of the Borrower in the
unremitted earnings of any Person that is not a Subsidiary and (iv) any income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with the Borrower or any Subsidiary on the date
that such Person's assets are acquired by the Borrower or any
Subsidiary.
4
"Consolidated Net Worth" shall mean, as of any date, the total assets
of the Borrower and its Subsidiaries that would be reflected on the Borrower's
consolidated balance sheet as of such date prepared in accordance with GAAP,
after eliminating all amounts properly attributable to minority interests, if
any, in the stock and surplus of Subsidiaries, minus the sum of (i) the total
liabilities of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP and (ii) the amount of any write-up in the book value of any assets
resulting from a revaluation thereof or any write-up in excess of the cost of
such assets acquired reflected on the consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP.
"Consolidated Rental Expense" shall mean, for any period, the
aggregate amount of fixed and contingent rentals payable by the Borrower and
its Subsidiaries with respect to leases of real and personal property
(excluding Capital Lease Obligations) determined on a consolidated basis in
accordance with GAAP for such period.
"Consolidated Total Capital" shall mean, as of any date of
determination with respect to the Borrower, the sum of (i) Consolidated Total
Debt and (ii) Consolidated Net Worth.
"Consolidated Total Debt" shall mean, as of any date of
determination, all Indebtedness of the Borrower and its Subsidiaries that would
be reflected on a consolidated balance sheet of the Borrower prepared in
accordance with GAAP as of such date.
"Control" shall mean the power, directly or indirectly, either to (i)
vote five percent (5%) or more of securities having ordinary voting power for
the election of directors (or persons performing similar functions) of a Person
or (ii) direct or cause the direction of the management and policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling", "Controlled by", and "under common Control
with" have meanings correlative thereto.
"Covenant Compliance Certificate" shall mean a certificate in such
form as may be acceptable to the Administrative Agent, containing all the
financial covenants and ratios with which the Borrower is required to comply
during the term of this Agreement and containing calculations reflecting
whether or not the Borrower is in compliance with each such financial covenant
or ratio.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in
Section 2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release
of any Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines,
natural resource damages, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) any actual
or alleged violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d)
the Release or threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
5
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning provided in Article VIII.
"Excluded Taxes" shall mean with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.19(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.19(a).
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fixed Charge Coverage Ratio" shall mean, for any period of four
consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated
EBITDAR for such period less Consolidated Income Tax Expenses to (b) the sum of
Consolidated Interest Expense plus Consolidated Rental Expense plus
Consolidated Current Maturities of Long Term Debt for such period.
"Foreign Lender" shall mean any Lender 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.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
6
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly
or indirectly and including any obligation, direct or indirect, of the
guarantor (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued in support of such Indebtedness or obligation; provided, that the term
"Guarantee" shall not include endorsements for collection or deposits in the
ordinary course of business. The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which Guarantee is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" shall mean FRTL, Inc., Florida Rock and Tank Lines,
Inc., Sunbelt Transport, Inc., Florida Rock Properties, Inc., FRP Development
Corp. and any future Subsidiary which is required pursuant to Section 5.10 to
become a Guarantor.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity agreements and other similar
agreements or arrangements designed to protect against fluctuations in
interest rates, currency values or commodity values.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business; provided, that for purposes of Section 8.1(f), trade
payables overdue by more than 120 days shall be included in this definition
except to the extent that any of such trade payables are being disputed in good
faith and by appropriate measures), (iv) all obligations of such Person under
any conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi)
all obligations, contingent or otherwise, of such Person in respect of letters
of credit, acceptances or similar extensions of credit, (vii) all Guarantees of
such Person of the type of Indebtedness described in clauses (i) through (vi)
above, (viii) all Indebtedness of a third party secured by any Lien on property
owned by such Person, whether or not such Indebtedness has been assumed by such
Person, (ix) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any common stock of
such Person, and (x) Off-Balance Sheet Liabilities. The Indebtedness of any
Person shall include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer, except to the
extent that the terms of such Indebtedness provide that such Person is not
liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity and Contribution Agreement" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit E,
among the Borrower, the Subsidiary Loan Parties and the Administrative Agent.
7
"Interest Period" shall mean (i) with respect to any Eurodollar
Borrowing, a period of 30, 60, 90 or 180 days and (ii) with respect to a
Swingline Loan, a period of one (1) day or such other period of such duration
as the Borrower may request and the Swingline Lender may agree in accordance
with Section 2.5; provided, that:
the initial Interest Period for such Borrowing shall commence on the
date of such Borrowing (including the date of any conversion from a
Borrowing of another Type) and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless, in the case of a Eurodollar Borrowing,
such Business Day falls in another calendar month, in which case such
Interest Period would end on the next preceding Business Day;
any Interest Period in respect of a Eurodollar Borrowing which begins
on the last Business Day of a calendar month or on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period shall end on the last Business Day of such calendar
month; and
no Interest Period may extend beyond the Commitment Termination Date
or the Swingline Termination Date, as the case may be.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender.
"Leverage Ratio" shall mean, as of any date of determination with
respect to the Borrower, the ratio of (i) Consolidated Total Debt as of such
date to (ii) Consolidated Total Capital as of such date.
"LIBOR" shall mean, for any applicable Interest Period with respect
to any Eurodollar Loan, the rate per annum for deposits in Dollars for a period
equal to such Interest Period appearing on the display designated as Page 3750
on the Dow ▇▇▇▇▇ Markets Service (or such other page on that service or
such other service designated by the British Banker's Association for the
display of such Association's Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m. (London, England time) on the day that is two (2) Business Days
prior to the first day of the Interest Period or if such Page 3750 is
unavailable for any reason at such time, the rate which appears on the Reuters
Screen ISDA Page as of such date and such time; provided, that if the
Administrative Agent determines that the relevant foregoing sources are
unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. for delivery on the first day
of such Interest Period, for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Loan of the Administrative
Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease
having the same economic effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
all Notices of Borrowing, the Subsidiary Guarantee Agreement, the Indemnity and
Contribution Agreement, and any and all other instruments, agreements,
documents and writings executed in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean Base Rate Loans, Eurodollar Loans and/or Swingline
Loans, or any of them, as the context shall require.
8
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether individually or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets, liabilities or
prospects of the Borrower and of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent and the Lenders under any of the Loan Documents or (iv)
the legality, validity or enforceability of any of the Loan Documents.
"Material Contract" shall mean (a) any contract or other agreement,
written or oral, of the Borrower or any of its Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $1,000,000.00 in
the aggregate and (b) any other contract, agreement, permit or license,
written or oral, of the Borrower or any of its Subsidiaries the failure to
comply with which could reasonably be expected to have a Material Adverse
Effect.
"Material Indebtedness" shall mean Indebtedness (other than the
Loans) or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and the Subsidiaries in an aggregate principal amount
exceeding $3,500,000.00. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of the Borrower or any Subsidiary in
respect to any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"Material Subsidiary" shall mean at any time any direct or indirect
Subsidiary of the Borrower having: (a) assets in an amount equal to at least
five percent (5%) of the total assets of the Borrower and its Subsidiaries
determined on a consolidated basis as of the last day of the most recent fiscal
quarter of the Borrower at such time; or (b) revenues or net income (losses) in
an amount equal to at least ten percent (10%) of the total revenues or net
income (losses) of the Borrower and its Subsidiaries on a consolidated basis
for the 12-month period ending on the last day of the most recent fiscal
quarter of the Borrower at such time.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Revolving Credit
Notes and the Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by
the Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b) hereof.
"Notice of Revolving Borrowing" shall have the meaning as set forth
in Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning as set forth
in Section 2.5.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent or any Lender (including the Swingline Lender) pursuant to
or in connection with this Agreement or any other Loan Document, including
without limitation, all principal, interest (including any interest accruing
after the filing of any petition in bankruptcy or the commencement of any
insolvency, reorganization or like proceeding relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), all reimbursement obligations, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all reasonable fees and
expenses of counsel to the Administrative Agent and any Lender (including the
Swingline Lender) incurred pursuant to this Agreement or any other Loan
Document), whether direct or indirect,
9
absolute or contingent, liquidated or unliquidated, now existing or hereafter
arising hereunder or thereunder, together with all renewals, extensions,
modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any liability of such Person under any so-
called "synthetic" lease transaction or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on the balance
sheet of such Person.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section 10.4(c).
"Payment Office" shall mean the office of the Administrative Agent located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as to
which the Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA, and any successor entity performing similar functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes not yet delinquent or which are
being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being maintained in
accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(v) judgment and attachment Liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal proceeding
that are currently being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in accordance with
GAAP;
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or materially interfere with
the ordinary conduct of business of the Borrower and its Subsidiaries taken as
a whole; and
(vii) Liens arising under ERISA which could not reasonably be expected
to have a Material Adverse Effect;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
10
"Permitted Investments" shall mean:
(viii) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or by
any agency thereof to the extent such obligations are backed by the full faith
and credit of the United States), in each case maturing within one year from
the date of acquisition thereof;
(ix) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within six
months from the date of acquisition thereof;
(x) certificates of deposit, bankers' acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States or any state thereof which has a combined capital and
surplus and undivided profits of not less than $500,000,000.00;
(xi) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered into
with a financial institution satisfying the criteria described in clause (iii)
above; and
(xii) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above.
"Permitted Subordinated Debt" shall mean any Indebtedness of the
Borrower or any Subsidiary (i) that is expressly subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent, and
(ii) that is evidenced by an indenture or other similar agreement that is in a
form reasonably satisfactory to the Administrative Agent.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity,
or any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pro Rata Share" shall mean, with respect to any Lender at any time,
a percentage, the numerator of which shall be the sum of such Lender's
Revolving Commitment and the denominator of which shall be the sum of all
Lenders' Revolving Commitments; or if the Revolving Commitments have been
terminated or expired or if the Loans have been declared to be due and payable,
a percentage, the numerator of which shall be the sum of such Lender's
Revolving Credit Exposure and the denominator of which shall be the sum of the
aggregate Revolving Credit Exposure of all Lenders.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
11
"Required Lenders" shall mean, at any time, Lenders holding more than
51% of the aggregate outstanding Revolving Credit Exposures at such time or if
the Lenders have no Revolving Credit Exposure outstanding, then Lenders holding
more than 51% of the Aggregate Revolving Commitments.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer,
the treasurer or a vice president of the Borrower or such other representative
of the Borrower as may be designated in writing by any one of the foregoing
with the consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer or the treasurer of the
Borrower.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Swingline Loans in an aggregate principal amount not exceeding
the amount set forth with respect to such Lender on the signature pages to this
Agreement, or in the case of a Person becoming a Lender after the Closing Date,
the amount of the assigned "Revolving Commitment" as provided in the Assignment
and Acceptance Agreement executed by such Person as an assignee, as the same
may be changed pursuant to terms hereof.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and such Lender's Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SPE Subsidiary" shall mean Subsidiaries of the Borrower or the
Borrower's Subsidiaries established solely for the purpose of owning a parcel
of real property for permanent financing purposes.
"Subordinated Debt Documents" shall mean any indenture, agreement or
similar instrument governing any Permitted Subordinated Debt.
"Subsidiary" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held,
or (ii) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. Unless otherwise indicated, all references to
"Subsidiary" hereunder shall mean a Subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit D attached hereto, made by the
Subsidiary Loan Parties in favor of the Administrative Agent for the benefit of
the Lenders.
"Subsidiary Loan Party" shall mean any Subsidiary that is not a
Foreign Subsidiary or a SPE Subsidiary.
12
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $5,000,000.00.
"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank, or any other Lender that
may agree to make Swingline Loans hereunder.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit B.
"Swingline Termination Date" shall mean the date that is one (1)
Business Day prior to the Commitment Termination Date.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classifications of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a "Revolving
Loan" or "Swingline Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate
Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings
also may be classified and referred to by Class (e.g. "Revolving Borrowing") or
by Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g. "Revolving
Eurodollar Borrowing").
Section 1.3 Accounting Terms and Determination. Unless otherwise defined
or specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
GAAP as in effect from time to time, applied on a basis consistent (except for
such changes approved by the Borrower's independent public accountants) with
the most recent audited consolidated financial statement of the Borrower
delivered pursuant to Section 5.1(a); provided, that if the Borrower notifies
the Administrative Agent that the Borrower wishes to amend any covenant in
Article VI to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend Article VI for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
Section 1.4 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the
13
context requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, supplemented or otherwise modified (subject
to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include
such Person's successors and permitted assigns, (iii) the words "hereof",
"herein" and "hereunder" and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular provision hereof,
(iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this
Agreement and (v) all references to a specific time shall be construed to refer
to the time in the city and state of the Administrative Agent's principal
office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1 General Description of Facility. Subject to and upon the
terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender's Pro Rata Share up to such
Lender's Revolving Commitment) to make Revolving Loans to the Borrower in
accordance with Section 2.2 and (ii) the Swingline Lender agrees to make
Swingline Loans in accordance with Section 2.4; provided, that in no event
shall the aggregate principal amount of all outstanding Revolving Loans, and
Swingline Loans exceed at any time the Aggregate Revolving Commitments from
time to time in effect.
Section 2.2 Revolving Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment
or (b) the sum of the aggregate Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving Commitments. During the Availability Period,
the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans
in accordance with the terms and conditions of this Agreement; provided, that
the Borrower may not borrow or reborrow should there exist a Default or Event
of Default.
Section 2.3 Procedure for Revolving Borrowings. The Borrower shall give
the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "Notice of Revolving Borrowing") (x) prior to
11:00 a.m. one (1) Business Day prior to the requested date of each Base Rate
Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to the
requested date of each Eurodollar Borrowing. Each Notice of Revolving Borrowing
shall be irrevocable and shall specify: (i) the aggregate principal amount of
such Borrowing, (ii) the date of such Borrowing (which shall be a Business
Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv)
in the case of a Eurodollar Borrowing, the duration of the initial Interest
Period applicable thereto (subject to the provisions of the definition of
Interest Period). Each Revolving Borrowing shall consist entirely of Base Rate
Loans or Eurodollar Loans, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing or Base Rate Borrowing shall be
not less than $100,000.00 or a larger multiple of $50,000.00; provided, that
Base Rate Loans made pursuant to Section 2.5 or Section 2.20(c) may be made in
lesser amounts as provided therein. At no time shall the total number of
Eurodollar Borrowings outstanding at any time exceed seven (7). Promptly
following the receipt of a Notice of Revolving Borrowing in accordance
herewith, the Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender's Revolving Loan to be made as part of
the requested Revolving Borrowing.
Section 2.4 Swingline Commitment. Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower, from time to time from the Closing Date to the Swingline Termination
Date, in an aggregate principal amount outstanding at any time not to exceed
the lesser of (i) the Swingline Commitment then in effect and (ii) the
difference between the Aggregate Revolving Commitments and the aggregate
Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender
shall not be required to
14
make a Swingline Loan to refinance an outstanding Swingline Loan. The Borrower
shall be entitled to borrow, repay and reborrow Swingline Loans in accordance
with the terms and conditions of this Agreement.
Section 2.5 Procedure for Swingline Borrowing; Etc.
(a) The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Borrowing
("Notice of Swingline Borrowing") prior to 10:00 a.m. on the requested date of
each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such Swingline Loan
and whether such Loan will be a Eurodollar Loan or a Base Rate Loan, (ii) the
date of such Swingline Loan (which shall be a Business Day) and (iii) the
account of the Borrower to which the proceeds of such Swingline Loan should be
credited. The Administrative Agent will promptly advise the Swingline Lender of
each Notice of Swingline Borrowing. Each Swingline Loan shall have an Interest
Period (subject to the definition thereof) as agreed between the Borrower and
the Swingline Lender. The aggregate principal amount of each Swingline Loan
shall be not less than $100,000.00 or a larger multiple of $50,000.00, or such
other minimum amounts agreed to by the Swingline Lender and the Borrower. The
Swingline Lender will make the proceeds of each Swingline Loan available to the
Borrower in Dollars in immediately available funds at the account specified by
the Borrower in the applicable Notice of Swingline Borrowing not later than
1:00 p.m. on the requested date of such Swingline Loan. The Administrative
Agent will notify the Lenders on a quarterly basis if any Swingline Loans
occurred during such quarter.
(b) The Swingline Lender, at any time and from time to time in its sole
discretion, may, on behalf of the Borrower (which hereby irrevocably authorizes
and directs the Swingline Lender to act on its behalf), give a Notice of
Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Revolving Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Revolving Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
Section 2.6, which will be used solely for the repayment of such Swingline
Loan.
(c) If for any reason a Revolving Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made in accordance
with the foregoing provisions, then each Lender (other than the Swingline
Lender) shall purchase an undivided participating interest in such Swingline
Loan in an amount equal to its Pro Rata Share thereof on the date that such
Revolving Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender.
(d) Each Lender's obligation to make a Revolving Loan pursuant to Section
2.5(b) or to purchase the participating interests pursuant to Section 2.5(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may
have or claim against the Swingline Lender, the Borrower or any other Person
for any reason whatsoever, (ii) the existence of a Default or an Event of
Default or the termination of any Lender's Revolving Commitment, (iii) the
existence (or alleged existence) of any event or condition which has had or
could reasonably be expected to have a Material Adverse Effect, (iv) any breach
of this Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. If such
amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the date of
demand thereof at the Federal Funds Rate. Until such time as such Lender makes
its required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to
have assigned any and all payments made of principal and interest on its Loans
and any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that
such Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
Section 2.6 Funding of Borrowings.
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(a) Each Lender will make available each Loan to be made by it hereunder
on the proposed date thereof by wire transfer in immediately available funds by
11:00 a.m. to the Administrative Agent at the Payment Office; provided, that
the Swingline Loans will be made as set forth in Section 2.5. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts that it receives, in like funds by the close of business
on such proposed date, to an account maintained by the Borrower with the
Administrative Agent or at the Borrower's option, by effecting a wire transfer
of such amounts to an account designated by the Borrower to the Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender
prior to 5 p.m. one (1) Business Day prior to the date of a Borrowing in which
such Lender is participating that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in reliance on
such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall immediately
pay such corresponding amount to the Administrative Agent together with
interest at the rate specified for such Borrowing. Nothing in this subsection
shall be deemed to relieve any Lender from its obligation to fund its Pro Rata
Share of any Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis of
their respective Pro Rata Shares. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender shall
be obligated to make its Loans provided to be made by it hereunder, regardless
of the failure of any other Lender to make its Loans hereunder.
Section 2.7 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall NOT apply to Swingline Borrowings.
(b) To make an election pursuant to this Section, the Borrower shall give
the Administrative Agent prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing (a "Notice of Conversion/Continuation")
that is to be converted or continued, as the case may be, (x) prior to
10:00 a.m. one (1) Business Day prior to the requested date of a conversion
into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days
prior to a continuation of or conversion into a Eurodollar Borrowing. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify (i)
the Borrowing to which such Notice of Continuation/Conversion applies and if
different options are being elected with respect to different portions thereof,
the portions thereof that are to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
shall be specified for each resulting Borrowing); (ii) the effective date of
the election made pursuant to such Notice of Continuation/Conversion, which
shall be a Business Day, (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing
is to be a Eurodollar Borrowing, the Interest Period applicable thereto after
giving effect to such election, which shall be a period contemplated by the
definition of "Interest Period". If any such Notice of Continuation/Conversion
requests a Eurodollar Borrowing but does not specify an Interest Period, the
Borrower shall be deemed to have selected an Interest Period of one month. The
principal amount of any resulting Borrowing shall satisfy the minimum
borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set forth
in Section 2.3.
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(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as,
a Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on
the last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
Section 2.8 Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments shall
terminate on the Commitment Termination Date, except that the Swingline
Commitment shall terminate on the Swingline Termination Date.
(b) Upon at least three (3) Business Days prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.8 shall be in an amount of at
least $1,000,000.00 and any larger multiple of $500,000.00, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures
of all Lenders. Any such reduction in the Aggregate Revolving Commitments shall
result in a proportionate reduction (rounded to the next lowest integral
multiple of $100,000.00) in the Swingline Commitment.
Section 2.9 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans shall be due
and payable (together with accrued and unpaid interest thereon) on the
Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued interest thereon) on the earlier of (i) the last
day of the Interest Period applicable to such Borrowing and (ii) the Swingline
Termination Date.
Section 2.10 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Lender
from time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Revolving Commitment of
each Lender, (ii) the amount of each Loan made hereunder by each Lender, the
Class and Type thereof and the Interest Period applicable thereto, (iii) the
date of each continuation thereof pursuant to Section 2.7, (iv) the date of
each conversion of all or a portion thereof to another Type pursuant to Section
2.7, (v) the date and amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder in respect of
such Loans and (vi) both the date and amount of any sum received by the
Administrative Agent hereunder from the Borrower in respect of the Loans and
each Lender's Pro Rata Share thereof. The entries made in such records shall be
prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, that the failure or delay of any
Lender or the Administrative Agent in maintaining or making entries into any
such record or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans (both principal and unpaid accrued interest)
of such Lender in accordance with the terms of this Agreement.
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(b) At the request of any Lender (including the Swingline Lender) at any
time, the Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note, and, in the case of the Swingline Lender only, a
Swingline Note, payable to the order of such Lender.
Section 2.11 Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty, by giving irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent no later than
(i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m. not less
than three (3) Business Days prior to any such prepayment, (ii) in the case of
any prepayment of any Base Rate Borrowing, not less than one (1) Business Day
prior to the date of such prepayment, and (iii) in the case of Swingline
Borrowings, prior to 11:00 a.m. on the date of such prepayment; provided,
however, that any prepayment of Eurodollar Borrowings shall be in a minimum
amount of $1,000,000.00 and any larger multiple of $500,000.00 and any
prepayment of Base Rate Borrowings shall be in a minimum amount of $500,000.00
and larger multiples of $100,000.00. Each such notice shall be irrevocable and
shall specify the proposed date of such prepayment and the principal amount of
each Borrowing or portion thereof to be prepaid. Upon receipt of any such
notice, the Administrative Agent shall promptly notify each affected Lender
of the contents thereof and of such Lender's Pro Rata Share of any such
prepayment. If such notice is given, the aggregate amount specified in such
notice shall be due and payable on the date designated in such notice, together
with accrued interest to such date on the amount so prepaid in accordance with
Section 2.12(d); provided, that if a Eurodollar Borrowing is prepaid on a date
other than the last day of an Interest Period applicable thereto, the Borrower
shall also pay all amounts required pursuant to Section 2.18. Each partial
prepayment of any Loan (other than a Swingline Loan) shall be in an amount
that would be permitted in the case of an advance of a Revolving Borrowing of
the same Type pursuant to Section 2.3 or in the case of a Swingline Loan
pursuant to Section 2.5. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
Section 2.12 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base
Rate in effect from time to time and on each Eurodollar Loan at the Adjusted
LIBO Rate for the applicable Interest Period in effect for such Loan, plus, in
each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at (i) the Base
Rate in effect from time to time or (ii) the Adjusted LIBO Rate in effect from
time to time, plus, in each case, the Applicable Margin in effect from time to
time; or any other interest rate as agreed between the Borrower and the
Swingline Lender.
(c) While an Event of Default exists or after acceleration, at the option
of the Required Lenders, the Borrower shall pay interest ("Default Interest")
with respect to all Eurodollar Loans at the rate otherwise applicable for the
then-current Interest Period plus an additional 2% per annum until the last day
of such Interest Period, and thereafter, and with respect to all Base Rate
Loans (including all Swingline Loans) and all other Obligations hereunder
(other than Loans), at an all-in rate in effect for Base Rate Loans, plus an
additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from and
including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and
December and on the Commitment Termination Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of 90 days, on each day which occurs every 90 days, after the
initial date of such Interest Period, and on the Commitment Termination Date.
If not previously paid, interest on each Swingline Loan shall be payable on the
Commitment Termination Date of such Loan, which shall be the last day of the
Interest Period applicable thereto, and on the Swingline Termination Date.
Interest on any Loan which is converted into a Loan of another Type or which is
repaid or prepaid shall be payable on the date of such conversion or on the
date of any such repayment or prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder and shall promptly notify the Borrower and the Lenders
of such rate in writing (or by telephone, promptly confirmed in writing). Any
such determination shall be conclusive and binding for all purposes, absent
manifest error.
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Section 2.13 Fees.
(a) Administrative Agent Fee. The Borrower shall pay to the
Administrative Agent for its own account, the Administrative Agent fee of
$50,000.00, on the Closing Date.
(b) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee, which shall accrue at
the Applicable Margin (determined daily) on the daily amount of the unused
Revolving Commitment of such Lender during the Availability Period; provided,
that if such Lender continues to have any Revolving Credit Exposure after the
Commitment Termination Date, then the commitment fee shall continue to accrue
on the amount of such Lender's unused Revolving Commitment from and after the
Commitment Termination Date to the date that all of such Lender's Revolving
Credit Exposure has been paid in full. Accrued commitment fees shall be
payable quarterly, in arrears on the last day of each March, June, September
and December of each year and on the Commitment Termination Date, commencing on
the first such date after the Closing Date; provided further, that any
commitment fees accruing after the Commitment Termination Date shall be payable
on demand. For purposes of computing commitment fees with respect to the
Revolving Commitments, the Revolving Commitment of each Lender shall be deemed
used to the extent of the outstanding Revolving Loans of such Lender.
(c) Upfront Fee. The Borrower shall pay to the Administrative Agent, for
the ratable benefit of each Lender, a one-time upfront fee equal to .0015
multiplied by the Aggregate Revolving Commitments. The upfront fee shall be
due and payable on the Closing Date.
Section 2.14 Computation of Interest and Fees. All computations of
interest and fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable (to
the extent computed on the basis of days elapsed). Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
Section 2.15 Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant interbank market, adequate means do not
exist for ascertaining LIBOR for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Required
Lenders that the Adjusted LIBO Rate does not adequately and fairly reflect the
cost to such Lenders (or Lender, as the case may be) of making, funding or
maintaining their (or its, as the case may be) Eurodollar Loans for such
Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations
of the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one (1) Business Day before the date of any
Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing has
previously been given that it elects not to borrow on such date, then such
Revolving Borrowing shall be made as a Base Rate Borrowing.
Section 2.16 Illegality. If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall promptly give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Revolving Loans, or to continue or
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convert outstanding Loans as or into Eurodollar Loans, shall be suspended. In
the case of the making of a Eurodollar Revolving Borrowing, such Lender's
Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving
Borrowing for the same Interest Period and if the affected Eurodollar Loan is
then outstanding, such Loan shall be converted to a Base Rate Loan either (i)
on the last day of the then current Interest Period applicable to such
Eurodollar Loan if such Lender may lawfully continue to maintain such Loan to
such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date.
Notwithstanding the foregoing, the affected Lender shall, prior to giving such
notice to the Administrative Agent, designate a different Applicable Lending
Office if such designation would avoid the need for giving such notice and if
such designation would not otherwise be disadvantageous to such Lender in the
good faith exercise of its discretion.
Section 2.17 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
capital adequacy or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or
(ii) impose on any Lender or the eurodollar interbank market any other
condition affecting this Agreement or any Eurodollar Loans made by such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
reduce the amount received or receivable by such Lender hereunder (whether of
principal, interest or any other amount), then the Borrower shall promptly pay,
upon written notice from and demand by such Lender on the Borrower (with a copy
of such notice and demand to the Administrative Agent), to the Administrative
Agent for the account of such Lender, within five (5) Business Days after the
date of such notice and demand, additional amount or amounts sufficient to
compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender's capital (or on the
capital of such Lender's parent corporation) as a consequence of its
obligations hereunder to a level below that which such Lender or such Lender's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's policies or the policies of such Lender's parent
corporation with respect to capital adequacy) then, from time to time,
within five (5) Business Days after receipt by the Borrower of written demand
by such Lender (with a copy thereof to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
or such Lender's parent corporation for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or such Lender's parent corporation, as the
case may be, specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower (with a copy to the Administrative Agent) and shall
be conclusive, absent manifest error. The Borrower shall pay any such Lender
such amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right
to demand such compensation.
Section 2.18 Funding Indemnity. In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified
in any applicable notice (regardless of whether such notice is withdrawn or
revoked), in any such
20
event, the Borrower shall compensate each Lender, within five (5) Business Days
after written demand from such Lender, for any loss, cost or expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost
or expense shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (A) the amount of interest that would have accrued on
the principal amount of such Eurodollar Loan if such event had not occurred at
the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from
the date of such event to the last day of the then current Interest Period
therefor (or in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Eurodollar Loan) over
(B) the amount of interest that would accrue on the principal amount of such
Eurodollar Loan for the same period if the Adjusted LIBO Rate were set on the
date such Eurodollar Loan was prepaid or converted or the date on which the
Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this Section 2.18
submitted to the Borrower by any Lender shall be conclusive, absent manifest
error.
Section 2.19 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 Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other 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 and any Lender 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) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within five (5) Business Days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent
or such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of the Borrower hereunder (including Indemnified
Taxes or Other 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 Indemnified Taxes or
Other 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 Lender, or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
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.
(e) Any Foreign Lender 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 Lender agrees that it will
deliver to the Administrative Agent and the Borrower (or in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) (i) two (2) duly completed copies of Internal Revenue Service Form
1001 or 4224, or any successor form thereto, as the case may be, certifying in
each case that such Foreign Lender is entitled to receive payments made by the
Borrower hereunder and under the Notes payable to it, without deduction or
withholding of any United States federal income taxes and (ii) a duly completed
Internal Revenue Service Form W-8 or W-9, or any successor form thereto, as the
case may be, to establish an exemption from United State backup withholding
tax. Each such Foreign Lender 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
Lender
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shall deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Lender. Each such Lender 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 2.20 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees, or of amounts payable under
Section 2.17, 2.18 or 2.19, or otherwise) prior to 11:00 a.m., Orlando, Florida
time, on the date when due, in immediately available funds, without set-off
or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at the Payment Office,
except payments to be made directly to the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.17, 2.18 and
2.19 and 10.3 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Swingline Loans that would result in
such Lender receiving payment of a greater proportion of the aggregate amount
of its Revolving Loans and Swingline Loans and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in
the Revolving Loans and Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and Swingline Loans;
provided, that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or Swingline Loans to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount or amounts due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
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(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.5(b) or (c), 2.6(b), 2.20(d) or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
Section 2.21 Mitigation of Obligations. If any Lender requests compensation
under Section 2.17, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.19, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable under
Section 2.17 or Section 2.19, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
Section 3.1 Conditions To Effectiveness. The obligations of the Lenders
(including the Swingline Lender) to make Loans hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent)
required to be reimbursed or paid by the Borrower hereunder, under any other
Loan Document and under any agreement with the Administrative Agent.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of each party
thereto or written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement;
(ii) if requested by any Lender, duly executed Notes payable to such
Lender;
(iii) a duly executed Subsidiary Guarantee Agreement and Indemnity and
Contribution Agreement;
(iv) a certificate of the Secretary or Assistant Secretary of each Loan
Party in the form of Exhibit 3.1(b)(iv), attaching and certifying copies of its
bylaws and of the resolutions of its boards of directors, authorizing the
execution, delivery and performance of the Loan Documents to which it is a
party and certifying the name, title and true signature of each officer of such
Loan Party executing the Loan Documents to which it is a party;
(v) certified copies of the articles of incorporation or other charter
documents of each Loan Party, together with certificates of good standing or
existence from the Secretary of State of the jurisdiction of incorporation of
such Loan Party and each other jurisdiction where such Loan Party is required
to be qualified to do business as a foreign corporation;
(vi) a favorable written opinion of counsel to the Loan Parties, addressed
to the Administrative Agent and each of the Lenders, and covering such matters
relating to the Loan Parties, the
23
Loan Documents and the transactions contemplated therein as the Administrative
Agent or the Required Lenders shall reasonably request;
(vii) a certificate in the form of Exhibit 3.1(b)(vii), dated the Closing
Date and signed by a Responsible Officer, confirming compliance with the
conditions set forth in paragraphs (a), (b) and (c) of Section 3.2;
(viii) duly executed Notices of Borrowing, if applicable;
(ix) a duly executed Closing Statement and Disbursement Agreement;
(x) certified copies of all consents, approvals, authorizations,
registrations or filings, if any, required to be made or obtained by each Loan
Party in connection with the Loans; and
(xi) all other documents deemed reasonably necessary by the Administrative
Agent.
(c) Nothing has come to the attention of the Administrative Agent or any
Lender regarding (i) pending or threatened litigation involving the Borrower or
any Subsidiary or (ii) compliance by the Borrower and each Subsidiary with
environmental, OSHA and other public health, safety or welfare laws and
regulations, employee benefit plans or insurance coverages that would be
reasonably likely to have a Material Adverse Effect.
Section 3.2 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such Borrowing,
no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth in the
Loan Documents shall be true and correct in all material respects on and as of
the date of such Borrowing, in each case before and after giving effect
thereto;
(c) since the date of the most recent financial statements of the Borrower
described in Section 5.1(a), there shall have been no change which has had or
could reasonably be expected to have a Material Adverse Effect; and
(d) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
Section 3.3 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and
shall be in form and substance satisfactory in all respects to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and each
Lender as follows:
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Section 4.1 Existence; Power. The Borrower and each of the Guarantors (i)
is duly organized, validly existing and in good standing as a corporation under
the laws of the jurisdiction of its organization, (ii) has all requisite power
and authority to carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each jurisdiction where
such qualification is required, except where a failure to be so qualified could
not reasonably be expected to result in a Material Adverse Effect, and except
that Florida Rock & Tank Lines, Inc. is currently not in good standing as a
foreign corporation qualified to transact business in the State of Alabama due
to what the Borrower believes to be a clerical error on the part of the Alabama
Department of Revenue.
Section 4.2 Organizational Power; Authorization. The execution, delivery
and performance by each Loan Party of the Loan Documents to which it is a party
are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, stockholder
action. This Agreement has been duly executed and delivered by the Borrower,
and constitutes, and each other Loan Document to which any Loan Party is a
party, when executed and delivered by such Loan Party, will constitute, valid
and binding obligations of the Borrower or such Loan Party (as the case may
be), enforceable against it in accordance with their respective terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
Section 4.3 Governmental Approvals; No Conflicts. The execution, delivery
and performance by the Borrower of this Agreement, and by each Loan Party of
the other Loan Documents to which it is a party (a) do not require any consent
or approval of, registration or filing with, or any action by, any Governmental
Authority, except those as have been obtained or made and are in full force and
effect or where the failure to do so, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, (b) will not
violate any applicable law or regulation or the charter, bylaws or other
organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, material agreement or other material instrument
binding on the Borrower or any of its Subsidiaries or any of their assets or
give rise to a right thereunder to require any payment to be made by the
Borrower or any of its Subsidiaries and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries,
except Liens (if any) created under the Loan Documents.
Section 4.4 Financial Statements. The Borrower has furnished to each
Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of September 30, 2001 and the related consolidated statements
of income, shareholders' equity and cash flows for the fiscal year then ended.
Such financial statements fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as of such dates and the
consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes. Since the date of the audited financial statements described above,
there have been no changes with respect to the Borrower and its Subsidiaries
which have had or could reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect.
Section 4.5 Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any other
Loan Document.
(b) Except for the matters set forth on Schedule 4.5, neither the Borrower
nor any of its Subsidiaries (i) to the best of its actual knowledge, has failed
to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) to
the best of its actual knowledge, has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
Section 4.6 Compliance with Laws and Agreements. To the best of its
actual knowledge, the Borrower and each Subsidiary is in compliance with (a)
all applicable laws, rules, regulations and orders of any Governmental
Authority, and (b) all indentures, agreements or other instruments binding upon
it or its properties,
25
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.7 Investment Company Act, Etc. Neither the Borrower nor any of
its Subsidiaries is (a) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended or (c) otherwise subject to any
other regulatory scheme limiting its ability to incur debt.
Section 4.8 Taxes. The Borrower and its Subsidiaries and each other
Person for whose taxes the Borrower or any Subsidiary could become liable have
timely filed or caused to be filed all Federal income tax returns and all other
material tax returns that are required to be filed by them, and have paid all
taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed
on it or any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii)
where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of such
taxes are adequate, and no tax liabilities that could be materially in excess
of the amount so provided are anticipated.
Section 4.9 Margin Regulations. None of the proceeds of any of the Loans
will be used for "purchasing" or "carrying" any "margin stock" with the
respective meanings of each of such terms under Regulation U as now and from
time to time hereafter in effect or for any purpose that violates the
provisions of the applicable Margin Regulations.
Section 4.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed
the fair market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of all such underfunded
Plans.
Section 4.11 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title to, or valid
leasehold interests in, all of its real and personal property material to the
operation of its business.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks,
tradenames, copyrights and other intellectual property material to its
business, and the use thereof by the Borrower and its Subsidiaries does not
infringe on the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not have a Material Adverse
Effect.
Section 4.12 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the reports
(including without limitation all reports that the Borrower is required to file
with the Securities and Exchange Commission), financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation or
syndication of this Agreement or any other Loan Document or delivered hereunder
or thereunder (as modified or supplemented by any other information so
furnished) contain any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not misleading.
26
Section 4.13 Labor Relations. There are no strikes, lockouts or other
material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrower's knowledge, threatened against any of
them before any Governmental Authority. All payments due from the Borrower or
any of its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
Section 4.14 Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation of,
and the type of, each Subsidiary and identifies each Subsidiary that is a
Subsidiary Loan Party, in each case as of the Closing Date.
Section 4.15 Legal Name. The exact legal name of the Borrower, including
spelling and punctuation, as such name appears in its articles of
incorporation, is as set forth in the preamble hereof. The Borrower's state
issued organizational identification number is M90326.
Section 4.16 No Restrictions on Dividends. There are no restrictions on
dividends or repayment of intercompany loans in any agreements of any
Subsidiary Loan Party.
Section 4.17 Solvency. The fair saleable value of the Borrower's assets,
measured on a going concern basis, exceeds all probable liabilities, including
those to be incurred pursuant to this Agreement. Neither the Borrower nor any
Subsidiary Loan Party has unreasonably small capital in relation to the
business in which it is or proposes to be engaged. Neither the Borrower nor
any Subsidiary has incurred, or believes that it will incur after giving effect
to the transactions contemplated by this Agreement, debts beyond its ability to
pay such debts as they become due.
Section 4.18 Insurance. The property and liability insurance maintained
by the Borrower and its Subsidiaries on and as of the date hereof complies in
all respects with the requirements set forth in Section 5.8. All such
insurance policies are in full force and effect. All premiums (if any) due on
such insurance policies or renewals thereof have been paid and there is no
default under any of such insurance policies. Neither the Borrower nor its
Subsidiaries have received any notice or other communication from any issuer of
such insurance policies canceling or materially amending any such insurance
policies, any deductibles or retained amounts thereunder, or the annual or
other premiums payable thereunder, and no such cancellation or material
amendment is threatened.
Section 4.19 Outstanding Indebtedness. On the date of this Agreement, the
Borrower has no outstanding Indebtedness except (i) as reflected on the
financial statements of the Borrower which have been provided to each Lender or
disclosed in Schedule 7.1 attached hereto and (ii) Indebtedness incurred in the
ordinary course of business subsequent to the date of such financial
statements.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee
remains unpaid:
Section 5.1 Financial Statements and Other Information. The Borrower will
deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 120 days after the end of
each fiscal year of Borrower, (i) a copy of the annual audited report for such
fiscal year for the Borrower and its Subsidiaries, containing a consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such
fiscal year and the related consolidated statements of income, stockholders'
equity and cash flows (together with all footnotes thereto)
27
of the Borrower and its Subsidiaries for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all in
reasonable detail and reported on by Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing chosen by
Borrower and acceptable to Lender, (without a "going concern" or like
qualification, exception or explanation and without any qualification or
exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and
the results of operations of the Borrower and its Subsidiaries for such fiscal
year on a consolidated basis in accordance with GAAP and that the examination
by such accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards and (ii)
annual unaudited consolidating balance sheets and income statements for the
Borrower and its Subsidiaries;
(b) as soon as available and in any event within 60 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower,
(i) an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal quarter with comparative information
for the previous year end, (ii) the related unaudited consolidated statements
of income of the Borrower and its Subsidiaries for such fiscal quarter and the
then elapsed portion of such fiscal year, setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous fiscal year, and (iii)
consolidated statements of cash flow for the then elapsed portion of such
fiscal year with comparative information for the corresponding portion of the
previous fiscal year, all certified by the chief financial officer or treasurer
of the Borrower as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements or
information referred to in clauses (a) and (b) above, (i) a certificate of a
Responsible Officer, (1) certifying, to the best of his actual knowledge, as to
whether there exists a Default or Event of Default on the date of such
certificate, and if a Default or an Event of Default then exists, specifying
the details thereof and the action which the Borrower has taken or proposes to
take with respect thereto and (2) stating whether any change in GAAP or the
application thereof has occurred since the date of the Borrower's audited
financial statements referred to in Section 4.4 and, if any change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate and (ii) a Covenant Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to
in clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained any knowledge during the
course of their examination of such financial statements of any Default or
Event of Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition
of the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
Section 5.2 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
28
(c) the occurrence of any event or any other development by which the
Borrower or any of its Subsidiaries (i) fails to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability
and in each of the preceding clauses, which individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect; (d) the
occurrence of any ERISA Event that alone, or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(e) the acquisition or formation of a new Material Subsidiary;
(f) transfers of assets to non-Material Subsidiaries outside the ordinary
course of business; and
(g) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect its legal existence
and its respective rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business
and will continue to engage in substantially the same business as presently
conducted or such other businesses that are reasonably related thereto;
provided, that nothing in this Section shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4 Compliance with Laws, Etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 5.5 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay and discharge at or before maturity, all of
its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.6 Books and Records. The Borrower will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
Section 5.7 Visitation, Inspection, Etc. The Borrower will, and will
cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, on reasonable advance written notice, to
visit and inspect its properties, to examine its books and records and to make
copies and take extracts therefrom, and to discuss its affairs, finances and
accounts with any of its officers and with its independent certified public
accountants, all at such reasonable times and as often as the Administrative
Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower.
Section 5.8 Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order
29
and condition, ordinary wear and tear except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result
in a Material Adverse Effect and (b) maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds and at least in the amounts as maintained by the Borrower
and the Subsidiaries on the date of this Agreement; provided that such
amounts shall be appropriately adjusted for inflation and for changes in the
nature and volume of the business conducted by the Borrower and its
Subsidiaries; provided further, however, that for purposes of this Section 5.8,
the self-insurance program of the Borrower and its Subsidiaries with respect to
comprehensive and collision damage to its highway vehicles, comprehensive
general and automotive liability and property damage and as in effect on the
date hereof is hereby deemed adequate insurance against losses.
Section 5.9 Use of Proceeds. The Borrower will use the proceeds of all
Loans to refinance existing debt, finance working capital needs, capital
expenditures and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System, including
Regulations T, U or X.
Section 5.10 Additional Subsidiaries. If any additional Material
Subsidiary is acquired or formed after the Closing Date, the Borrower will,
within ten (10) business days after such Material Subsidiary is acquired or
formed, notify the Administrative Agent and the Lenders thereof and will, if
such Subsidiary is not a Foreign Subsidiary or a SPE Subsidiary, cause such
Material Subsidiary to become a Subsidiary Loan Party by executing agreements
in the form of Annex I to Exhibit D and Annex I to Exhibit E in form and
substance satisfactory to the Administrative Agent and the Required Lenders and
will cause such Material Subsidiary to deliver simultaneously therewith similar
documents applicable to such Material Subsidiary required under Section 3.1 as
reasonably requested by the Administrative Agent. If the Borrower forms or
acquires additional Subsidiaries ("non-Material Subsidiaries") which are
neither Material Subsidiaries, Foreign Subsidiaries nor SPE Subsidiaries, at
such time as the assets, revenues or income of all such non-Material
Subsidiaries when considered on a consolidated basis would reach the level
required for a Subsidiary to qualify as a Material Subsidiary; all then
existing non-Material Subsidiaries and all subsequently formed or acquired non-
Material Subsidiaries shall become Subsidiary Loan Parties by complying with
the requirements set forth in this Section 5.10.
Section 5.11 Compliance with Alabama Law. The Borrower will, on or before
February 8, 2002, cause Florida Rock & Tank Lines, Inc. to be in good standing
as a foreign corporation qualified to transact business in the State of Alabama
and provide to the Administrative Agent a certificate from the Alabama
Department of Revenue evidencing such good standing.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee remains unpaid:
Section 6.1 Leverage Ratio. The Borrower will have, as of the end of each
fiscal quarter of the Borrower, commencing with the fiscal quarter ending
September 30, 2001, a Leverage Ratio of not greater than 55%.
Section 6.2 Consolidated Adjusted Debt to EBITDAR Ratio. The Borrower
will have, as of the end of each fiscal quarter of the Borrower, commencing
with the fiscal quarter ending September 30, 2001, a Consolidated Adjusted Debt
to EBITDAR Ratio of equal to or less than 3.5:1.0, calculated on a rolling
four quarter basis.
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Section 6.3 Fixed Charge Coverage Ratio. The Borrower will have, as of
the end of each fiscal quarter of the Borrower, commencing with the fiscal
quarter ending September 30, 2001, a Fixed Charge Coverage Ratio of not less
than 2.0:1.0, calculated based on a rolling four quarter basis.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee remains unpaid:
Section 7.1 Indebtedness. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on Schedule 7.1
(including unborrowed portions of any lines of credit shown thereon) and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to
giving effect to such extension, renewal or replacement) or shorten the
maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary in a principal amount
which, when combined with Indebtedness permitted by Section 7.1(h), does not
exceed $5,000,000.00 in the aggregate and which is incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets of secured by a Lien on any such assets
prior to the acquisition thereof; provided, that such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvements or extensions, renewals, and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof
(immediately prior to giving effect to such extension, renewal or replacement)
or shorten the maturity or the weighted average life thereof;
(d) Permitted Subordinated Debt;
(e) Indebtedness in respect of obligations under Hedging Agreements
permitted by Section 7.10;
(f) current Indebtedness incurred in the ordinary course of business,
trade letters of credit and Indebtedness arising in connection with letters of
credit obtained in the ordinary course of business;
(g) Indebtedness in the form of mortgage loans in connection with
permanent financing of improved commercial real properties; and
(h) other unsecured Indebtedness outstanding at any time which, when added
to Indebtedness permitted by Section 7.1(c), does not exceed $5,000,000.00 in
the aggregate.
Section 7.2 Negative Pledge. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
on any of its assets or property now owned or hereafter acquired or, except:
(a) Permitted Encumbrances;
(b) any Liens on any property or assets of the Borrower or any Subsidiary
existing on the Closing Date set forth on Schedule 7.2; provided, that such
Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary;
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(c) purchase money Liens upon or in any fixed or capital assets to secure
the purchase price or the cost of construction or improvement of such fixed or
capital assets or to secure Indebtedness incurred solely for the purpose of
financing the acquisition, construction or improvement of such fixed or capital
assets (including Liens securing any Capital Lease Obligations); provided, that
(i) such Lien secures Indebtedness permitted by Section 7.1(c), (ii) such Lien
attaches to such asset concurrently or within 90 days after the acquisition,
improvement or completion of the construction thereof; (iii) such Lien does not
extend to any other asset; and (iv) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets;
(d) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any
Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower;
provided, that any such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which it secures on
the date that such Person becomes a Subsidiary or the date of such merger or
the date of such acquisition;
(e) Liens securing Indebtedness permitted under Section 7.1;
(f) Liens or pledges of securities of the Borrower or any Subsidiary to
governmental agencies pursuant to the Borrower's or any Subsidiary's insurance
program;
(g) Rights reserved or vested in governmental authority which do not
materially impair the use of such property;
(h) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (g) of this Section; provided, that the principal amount
of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally
encumbered thereby; and
(i) Liens on improved commercial real properties in connection with
permanent financing thereof.
Section 7.3 Fundamental Changes.
(a) Except as permitted by Section 7.6, the Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate into any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
lease, transfer or otherwise dispose of (in a single transaction or a series of
transactions) all or substantially all of its assets (in each case, whether now
owned or hereafter acquired) or all or substantially all of the stock of any of
its Subsidiaries (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and immediately
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing (i) the Borrower or any Subsidiary may merge with a Person if
the Borrower (or such Subsidiary if the Borrower is not a party to such merger)
is the surviving Person, (ii) any Subsidiary may merge into another Subsidiary;
provided, that if any party to such merger is a Subsidiary Loan Party, the
Subsidiary Loan Party shall be the surviving Person, (iii) any Subsidiary may
sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to the Borrower or to a Subsidiary Loan Party and (iv) any Subsidiary
(other than a Subsidiary Loan Party) may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the
Lenders; provided, that any such merger involving a Person that is not a
wholly-owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 7.4. Notwithstanding the foregoing, the
Borrower and the Guarantors shall be permitted to transfer real properties to
SPE Subsidiaries for the purpose of permanent financing of such properties.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than businesses of
substantially the same type conducted by the Borrower and its Subsidiaries on
the date hereof and businesses reasonably related thereto.
32
Section 7.4 Investments, Loans, Etc. The Borrower will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"Investments"), or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person ("Acquisitions"),
except:
(a) Investments (other than Permitted Investments) existing on the date
hereof and set forth on Schedule 7.4;
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
provided, that the aggregate principal amount of Indebtedness of Subsidiaries
that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party shall
be subject to the limitation set forth in clause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and by any
Subsidiary to the Borrower or in or to another Subsidiary;
(e) loans or advances to employees, officers or directors of the Borrower
or any Subsidiary in the ordinary course of business for travel, relocation and
related expenses;
(f) Hedging Agreements permitted by Section 7.10;
(g) Real estate investments or joint ventures that are typical in the
Borrower's ordinary course of business;
(h) Other Investments which in the aggregate do not exceed $5,000,000.00
in any fiscal year of the Borrower; and
(i) Acquisitions not to exceed $7,500,000.00 in the aggregate in any
fiscal year of the Borrower.
Section 7.5 Restricted Payments. After the date of this Agreement, the
Borrower will not, and will not permit its Subsidiaries to, declare or make, or
agree to pay or make, directly or indirectly, any dividend on any class of its
stock, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, retirement,
defeasance or other acquisition of, any Indebtedness subordinated to the
Obligations of the Borrower or any options, warrants, or other rights to
purchase such Indebtedness, whether now or hereafter outstanding (each, a
"Restricted Payment"), except for (i) dividends not exceeding 66.6% of
Consolidated Net Income subsequent to September 30, 2000, (ii) dividends
Payable by the Borrower solely in shares of any class of its common stock,
(iii) Restricted Payments made by any Subsidiary to the Borrower or to another
Subsidiary Loan Party and (iv) cash redemptions of the common stock of the
Borrower; provided, that the exceptions permitted pursuant to clauses (i)
through (iv) shall apply only if no Default or Event of Default has occurred
and is continuing at the time such dividend or other payment is paid or
redemption is made.
Section 7.6 Sale of Assets. The Borrower will not, and will not permit
any of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's common stock to, any Person other than the Borrower or any
wholly-owned Subsidiary of the Borrower (or to qualify directors if required by
applicable law), except:
(a) the sale or other disposition for fair market value of obsolete or
worn out property or other property not necessary for operations disposed of in
the ordinary course of business;
33
(b) the sale of assets and Permitted Investments in the ordinary course of
the transportation and real estate business of the Borrower and its
Subsidiaries including, without limitation, the sale of any parcel of real
property for fair market value;
(c) the sale or other disposition of such other assets in an aggregate
amount not to exceed $5,000,000.00 during the term of this Agreement; provided,
however, that such amount shall not include (i) intercompany mergers of
Subsidiaries, (ii) sales, leases or transfers of assets of any Subsidiary to
the Borrower or any other Subsidiary, and (iii) mergers or consolidations with
the Borrower or any Subsidiary so long as the Borrower or such Subsidiary shall
be the surviving corporation and no Default or Event of Default shall then
exist; and
(d) the transfer of real properties to SPE Subsidiaries for the purpose
of permanent financing of such properties, in the ordinary course of business
of the Borrower.
Section 7.7 Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of
its Affiliates, except (a) in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties
including, without limitation, those affiliate transactions disclosed in the
Borrower's Form 10-K as on file with the Securities and Exchange Commission on
the date hereof, (b) transactions between or among the Borrower and the
Guarantors not involving any other Affiliates and (c) any Restricted Payment
permitted by Section 7.5.
Section 7.8 Restrictive Agreements. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit
to exist any agreement that prohibits, restricts or imposes any condition upon
(a) the ability of the Borrower or any Subsidiary to create, incur or permit
any Lien upon any of its assets or properties, whether now owned or hereafter
acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i)
the foregoing shall not apply to restrictions or conditions imposed by law or
by this Agreement or any other Loan Document, (ii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.
Section 7.9 Sale and Leaseback Transactions. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred.
Section 7.10 Hedging Agreements. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Agreement entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Agreement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection
with the purchase by any third party of any common stock or any Indebtedness or
(ii) as a result of changes in the market value of any common stock or any
indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
34
Section 7.11 Amendment to Material Documents. The Borrower will not, and
will not permit any Subsidiary to, amend, modify or waive any of its rights in
a manner materially adverse to the Lenders under (a) its certificate of
incorporation, bylaws or other organizational documents or (b) Material
Contracts.
Section 7.12 Permitted Subordinated Indebtedness.
(a) The Borrower will not, and will not permit any of its Subsidiaries to
(i) prepay, redeem, repurchase or otherwise acquire for value any Permitted
Subordinated Debt, or (ii) make any principal, interest or other payments on
any Permitted Subordinated Debt that is not expressly permitted by the
subordination provisions of the Subordinated Debt Documents.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
agree to or permit any amendment, modification or waiver of any provision of
any Subordinated Debt Document if the effect of such amendment, modification or
waiver is to (i) increase the interest rate on such Permitted Subordinated Debt
for change (to earlier dates) the dates upon which principal and interest are
due thereon; (ii) alter the redemption, prepayment or subordination provisions
thereof; (iii) alter the covenants and events of default in a manner that
would make such provisions more onerous or restrictive to the
Borrower or any such Subsidiary; or (iv) otherwise increase the
obligations of the Borrower or any Subsidiary in respect of such
Permitted Subordinated Debt or confer additional rights upon the
holders thereof which individually or in the aggregate would be
adverse to the Borrower or any of its Subsidiaries or to the
Agent or the Lenders.
Section 7.13 Accounting Changes. The Borrower will not, and will not
permit any Subsidiary to, make any significant change in accounting treatment
or reporting practices, except as required or preferred by GAAP, or change the
fiscal year of the Borrower or of any Subsidiary, except to change the fiscal
year of a Subsidiary to conform its fiscal year to that of the Borrower.
Section 7.14 Name Changes. The Borrower will not, and will not permit any
Material Subsidiary or Guarantor to, without thirty (30) days prior written
notice, change its name, its place of business or, if more than one, chief
executive office, or its mailing address or organizational identification
number if it has one.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1 Events of Default. If any of the following events (each an
"Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount payable under clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of ten (10) days; or
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any
certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any representative of
any Loan Party pursuant to or in connection with this Agreement or any other
Loan Document shall prove to be false or misleading when made or deemed made or
submitted; or
35
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1 or 5.10 or Articles VI or VII (other than
in Section 7.14) and such failure shall continue unremedied for a period of
thirty (30) days; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in Sections 5.9 or 5.11; or
(f) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement or any other Loan Document (other than
those referred to in clauses (a), (b), (d) and (e) above), and such failure
shall remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or
(g) the Borrower, any Subsidiary Loan Party or any other Subsidiary
subject to any Indebtedness exceeding $100,000.00 in the aggregate other than
non-recourse Indebtedness (a "Recourse Subsidiary") (whether as primary
obligor or as guarantor or other surety) shall fail to pay any principal of or
premium or interest on any Material Indebtedness that is outstanding, when and
as the same shall become due and payable (whether at 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 evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer
to prepay, redeem, purchase or defease such Indebtedness shall be required to
be made, in each case prior to the stated maturity thereof; or
(h) the Borrower, any Subsidiary Loan Party or any Recourse Subsidiary
shall (i) commence a voluntary case or other proceeding or file any petition
seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a custodian, trustee, receiver, liquidator or
other similar official of it or any substantial part of its property, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (i) of this Section,
(iii) apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower, any such
Subsidiary Loan Party or any Recourse Subsidiary or for a substantial part of
its assets, (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, or (vi) take any action for the purpose of
effecting any of the foregoing; or
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower, any Subsidiary Loan Party or any Recourse
Subsidiary or its debts, or any substantial part of its assets, under any
federal, state or foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or (ii) the appointment of a custodian, trustee, receiver,
liquidator or other similar official for the Borrower, any Subsidiary Loan
Party or any Recourse Subsidiary or for a substantial part of its assets, and
in any such case, such proceeding or petition shall remain undismissed for a
period of 60 days or an order or decree approving or ordering any of the
foregoing shall be entered; or
(j) the Borrower, any Subsidiary Loan Party or any Recourse Subsidiary
shall become unable to pay, shall admit in writing its inability to pay, or
shall fail to pay, its debts as they become due; or
(k) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(l) any judgment or order for the payment of money in excess of
$3,500,000.00 in the aggregate or that could reasonably be expected to have a
Material Adverse Effect shall be rendered against the Borrower, any Subsidiary
Loan Party or any Recourse Subsidiary, and either (i) enforcement proceedings
shall have been
36
commenced by any creditor upon such judgment or order or (ii) there shall be a
period of 60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(m) any non-monetary judgment or order shall be rendered against the
Borrower, any Subsidiary Loan Party or any Recourse Subsidiary that could
reasonably be expected to have a Material Adverse Effect, and there shall be a
period of 60 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(n) a Change in Control shall occur or exist; or
(o) any provision of any Subsidiary Guarantee Agreement shall for any
reason cease to be valid and binding on, or enforceable against, any Subsidiary
Loan Party, or any Subsidiary Loan Party shall so state in writing, or any
Subsidiary Loan Party shall seek to terminate its Subsidiary Guarantee
Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon
the written request of the Required Lenders shall, by notice to the Borrower,
take any or all of the following actions, at the same or different times:
(i) terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest
on the Loans, and all other Obligations owing hereunder, to be, whereupon the
same shall become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower and (iii) exercise all remedies contained in any other Loan Document;
and that, if an Event of Default specified in either clause (h) or (i) shall
occur, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon, and all
fees, and all other Obligations shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment of Administrative Agent. Each Lender irrevocably
appoints SunTrust Bank as the Administrative Agent and authorizes it to accept
delivery of Notes from the Borrower and to take such other actions on its
behalf and to exercise such powers as are delegated to the Administrative
Agent under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The Administrative
Agent may perform any of its duties hereunder by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions set forth in this Article shall apply to any such sub-agent and the
Related Parties of the Administrative Agent and any such sub-agent and shall
apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as
Administrative Agent.
Section 9.2 Nature of Duties of Administrative Agent. The Administrative
Agent shall not have any duties or obligations except those expressly set forth
in this Agreement and the other Loan Documents. Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to
any fiduciary or other implied duties, regardless of whether a Default or an
Event of Default has occurred and is continuing, (b) the Administrative Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except those discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other
37
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2), and (c) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be deemed to have knowledge of any Default or Event of Default
unless and until written notice thereof is given to the Administrative Agent by
the Borrower or any Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements, or other
terms and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article III or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.
Section 9.3 Lack of Reliance on the Administrative Agent. Each of the
Lenders and the Swingline Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each of the
Lenders and the Swingline Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, continue
to make its own decisions in taking or not taking of any action under or based
on this Agreement, any related agreement or any document furnished hereunder or
thereunder.
Section 9.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain
from such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made
by the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
Section 9.6 The Administrative Agent in its Individual Capacity. The bank
serving as the Administrative Agent shall have the same rights and powers under
this Agreement and any other Loan Document in its capacity as a Lender as any
other Lender and may exercise or refrain from exercising the same as
though it were not the Administrative Agent; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
Section 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or
Event of Default shall exist at such time. If no successor Administrative
Agent shall have been so appointed, and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall
38
be a commercial bank organized under the laws of the United States of America
or any state thereof or a bank which maintains an office in the United States,
having a combined capital and surplus of at least $500,000,000.00.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. If within forty-five (45) days after written
notice is given of the retiring Administrative Agent's resignation under this
Section 9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article IX shall continue
in effect for the benefit of such retiring Administrative Agent and
its representatives and agents in respect of any actions taken or not taken by
any of them while it was serving as the Administrative Agent.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Patriot Transportation Holding, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Vice President of Finance and
Administration
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Director
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
Akerman, Senterfitt & ▇▇▇▇▇▇, P.A.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
39
To the Swingline Lender: SunTrust Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Director
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the Administrative
Questionnaire
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All such
notices and other communications shall, when transmitted by overnight delivery,
or faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mails or if
delivered, upon delivery; provided, that notices delivered to the
Administrative Agent or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Borrower. The Administrative Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be
a Person authorized by the Borrower to give such notice and the Administrative
Agent and Lenders shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The obligation
of the Borrower to repay the Loans and all other Obligations hereunder shall
not be affected in any way or to any extent by any failure of the
Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
Section 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder or any other Loan Document, and no
course of dealing between the Borrower and the Administrative Agent or any
Lender, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder.
The rights and remedies of the Administrative Agent and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
shall not be construed as a waiver of any Default or Event of Default,
regardless of whether the Administrative Agent or any Lender may have had
notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other
Loan Documents, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders or the Borrower and the Administrative Agent
with the consent of the Required Lenders and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date for the termination or reduction of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.20(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the
40
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement; (vii) release all
or substantially all collateral (if any) securing any of the Obligations;
provided further, that no such agreement shall amend, modify or otherwise
affect the rights, duties or obligations of the Administrative Agent or the
Swingline Lender without the prior written consent of such Person.
Section 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) subject to the limitations set forth in the
Commitment Letter, all reasonable, out-of-pocket costs and expenses of the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent and its Affiliates,
in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of the Loan Documents and any
amendments, modifications or waivers thereof (whether or not the transactions
contemplated in this Agreement or any other Loan Document shall be consummated)
and (ii) all reasonable out-of-pocket costs and expenses (including, without
limitation, the reasonable fees, charges and disbursements of outside counsel
and the allocated cost of inside counsel) incurred by the Administrative Agent
or any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loans made, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans.
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing (each, an "Indemnitee") against,
and hold each of them harmless from, any and all costs, losses, liabilities,
claims, damages and related expenses, including the reasonable fees, charges
and disbursements of any counsel for any Indemnitee, which may be incurred by
or asserted against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement or any other
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of any of
the transactions contemplated hereby, (ii) any Loan or any actual or proposed
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned by the Borrower or any
Subsidiary or any Environmental Liability related in any way to the Borrower or
any Subsidiary or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto; provided, that the Borrower shall not be obligated to
indemnify any Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and each of
the Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required to be
paid to the Administrative Agent or the Swingline Lender under clauses (a), (b)
or (c) hereof, each Lender severally agrees to pay to the Administrative Agent
or the Swingline Lender, as the case may be, such Lender's Pro Rata Share
(determined as of the time that the unreimbursed expense or indemnity payment
is sought) of such unpaid amount; provided, that the unreimbursed expense or
indemnified payment, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or the
Swingline Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or the use of proceeds
thereof.
41
(f) All amounts due under this Section shall be payable promptly after
written demand therefor.
Section 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans at the
time owing to it); provided, that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment while an Event of Default
has occurred and is continuing, each of the Borrower and the Administrative
Agent (and, in the case of an assignment of all or a portion of a Commitment or
any Lender's obligations in respect of its Swingline Exposure and the Swingline
Lender) must give their prior written consent (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to
a Lender or an Affiliate of a Lender or an assignment of the entire amount of
the assigning Lender's Commitment hereunder or an assignment while an Event of
Default has occurred and is continuing, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000.00 (unless the Borrower
and the Administrative Agent shall otherwise consent), (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement and the
other Loan Documents, (iv) the assigning Lender and the assignee shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee payable by the assigning Lender or the
assignee (as determined between such Persons) in an amount equal to $3,500.00
and (v) such assignee, if it is not a Lender, shall deliver a duly completed
Administrative Questionnaire to the Administrative Agent; provided, that any
consent of the Borrower otherwise required hereunder shall not be required if
an Event of Default has occurred and is continuing. Upon the execution and
delivery
of the Assignment and Acceptance and payment by such assignee to the assigning
Lender of an amount equal to the purchase price agreed between such Persons,
such assignee shall become a party to this Agreement and any other Loan
Documents to which such assigning Lender is a party and, to the extent of
such interest assigned by such Assignment and Acceptance, shall have the rights
and obligations of a Lender under this Agreement, and the assigning Lender
shall be released from its obligations hereunder to a corresponding extent
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.16, 2.17 and 2.18 and 10.3). Upon the consummation of any such
assignment hereunder, the assigning Lender, the Administrative Agent and the
Borrower shall make appropriate arrangements to have new Notes issued if so
requested by either or both the assigning Lender or the assignee. Any
assignment or other transfer by a Lender that does not fully comply with the
terms of this clause (b) shall be treated for purposes of this Agreement as a
sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the Borrower, the
Administrative Agent or the Swingline Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of its obligations hereunder, and (iii) the Borrower, the
Administrative Agent, the Swingline Lender and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents. Any
agreement between such Lender and the Participant with respect to such
participation shall provide that such Lender shall retain the sole right and
responsibility to enforce this Agreement and the other Loan Documents and the
right to approve any amendment, modification or waiver of this Agreement and
the other Loan Documents; provided, that such participation agreement may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver of this Agreement described in
the first proviso of Section 10.2(b) that affects the Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender
hereunder and had acquired its interest by assignment pursuant to paragraph
(b); provided, that no Participant shall be entitled to receive any greater
payment under Section 2.16 or 2.18 than the applicable Lender
42
would have been entitled to receive with respect to the participation sold to
such Participant unless the sale of such participation is made with the
Borrower's prior written consent. To the extent permitted by law, the Borrower
agrees that each Participant shall be entitled to the benefits of Section 2.20
as though it were a Lender, provided, that such Participant agrees to share
with the Lenders the proceeds thereof in accordance with Section 2.20 as fully
as if it were a Lender hereunder. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.19
unless the Borrower is notified of such participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.19(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement and its Notes (if any) to
secure its obligations to a Federal Reserve Bank without complying with this
Section; provided, that no such pledge or assignment shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPV"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement; provided, that
(i) nothing herein shall constitute a commitment by any SPV to make any Loan
and (ii) if an SPV elects not to exercise such option or otherwise fails to
provide all or any part of any Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State contrary to this
Section 10.4. Any SPV may (i) with notice to, but without the prior written
consent of, the Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender or to any financial institutions (consented to by the
Borrower and the Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPV to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPV. As
this Section 10.4(e) applies to any particular SPV, this Section may not be
amended without the written consent of such SPV.
Section 10.5 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Florida.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the Circuit Court
of Orange County, Florida, the United States District Court of the Middle
District of Florida, and of any state court of the State of Florida and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document or the transactions
contemplated hereby or thereby, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such Florida state court or, to the extent permitted by
applicable law, such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against the Borrower or its properties in
the courts of any jurisdiction.
43
(c) The Borrower irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section and brought in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
Section 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
each Lender shall have the right, at any time or from time to time upon the
occurrence and during the continuance of an Event of Default, without prior
notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final)
of the Borrower at any time held or other obligations at any time owing by such
Lender to or for the credit or the account of the Borrower against any and all
Obligations held by such Lender, irrespective of whether such Lender shall have
made demand hereunder and although such Obligations may be unmatured. Each
Lender agrees promptly to notify the Administrative Agent and the Borrower
after any such set-off and any application made by such Lender; provided, that
the failure to give such notice shall not affect the validity of such set-off
and application.
Section 10.8 Counterparts; Integration. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
Section 10.9 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of
any Loans, regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof. All representations and warranties
made herein, in the certificates, reports, notices, and other documents
delivered pursuant to this Agreement shall survive the execution and delivery
of this Agreement and the other Loan Documents, and the making of the Loans.
Section 10.10 Severability. Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such
illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
44
Section 10.11 Confidentiality. Each of the Administrative Agent and each
Lender agrees to take normal and reasonable precautions to maintain the
confidentiality of any information designated in writing as confidential and
provided to it by the Borrower or any Subsidiary, except that such information
may be disclosed (i) to any Related Party of the Administrative Agent
or any such Lender, including without limitation accountants, legal counsel and
other advisors, (ii) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process, (iii) to the extent requested by
any regulatory agency or authority, (iv) to the extent that such information
becomes publicly available other than as a result of a breach of this Section,
or which becomes available to the Administrative Agent, any Lender or any
Related Party of any of the foregoing on a nonconfidential basis from a source
other than the Borrower, (v) in connection with the exercise of any remedy
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, and subject to provisions substantially
similar to this Section 10.11, to any actual or prospective assignee or
Participant, or (vi) with the consent of the Borrower. Any Person required to
maintain the confidentiality of any information as provided for in this Section
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such information as such Person would accord its own confidential information.
Section 10.12 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as interest on
such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum 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 Lender.
[Remainder of Page Intentionally Left Blank]
45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal in the case of the Borrower, by their respective
authorized officers as of the day and year first above written.
PATRIOT TRANSPORTATION HOLDING, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
SUNTRUST BANK
as Administrative Agent, as
Swingline Lender and as a
Lender
By:__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director
Revolving Commitment: $12,000,000.00
Swingline Commitment: $5,000,000.00
S-1
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
SUNTRUST BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
FIRST UNION NATIONAL BANK
By: ________________________________
Name:_______________________________
Title:______________________________
Revolving Commitment: $10,000,000.00
S-2
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
SUNTRUST BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
BANK OF AMERICA, N.A.
By:_________________________________
Name: ______________________________
Title: _____________________________
Revolving Commitment: $10,000,000.00
S-3
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
SUNTRUST BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
COMPASS BANK
By: ________________________________
Name: ______________________________
Title: _____________________________
Revolving Commitment: $5,000,000.00
S-4
SCHEDULE 4.5
ENVIRONMENTAL MATTERS
One of Borrower's Material Subsidiaries is a potentially responsible party in
connection with a Superfund site at Whitehouse, Duval County, Florida, as
described in the Notes to Borrower's Consolidated Financial Statements in
Borrower's Form 10K as filed with the Securities and Exchange Commission for
the year ended September 30, 2001.
Schedule 4.5
SCHEDULE 4.14
SUBSIDIARIES
% of Borrower's
Name of Subsidiary State of Type of Entity Ownership
Formation
FRTL, Inc.* Florida Corporation 100%
Florida Rock and
Tank Lines, Inc.* Florida Corporation 100%
Sunbelt Transport, Inc.* Florida Corporation 100%
Florida Rock Properties,
Inc.* Florida Corporation 100%
FRP Development Corp.* Florida Corporation 100%
FRP Maryland, Inc. Maryland Corporation 100%
34 Loveton Center LLC Maryland Limited Liability
Company 100%
Oz LLC Maryland Limited Liability
Company 100%
FRP Delaware, Inc. Delaware Corporation 100%
1502 Quarry, LLC Maryland Limited Liability
Company 100%
FRP Lakeside LLC #1 Maryland Limited Liability
Company 100%
FRP Lakeside LLC #2 Maryland Limited Liability
Company 100%
FRP Lakeside LLC #3 Maryland Limited Liability
Company 100%
FRP Lakeside LLC #4 Maryland Limited Liability
Company 100%
FRP Lakeside LLC #5 Maryland Limited Liability
Company 100%
FRP Hillside LLC Maryland Limited Liability
Company 100%
FRP Windsor LLC Maryland Limited Liability
Company 100%
FRP ▇▇▇▇▇▇ LLC Maryland Limited Liability
Company 100%
Patriot Transportation, Inc. Florida Corporation 100%
*Indicates Subsidiary Loan Party
Schedule 4.14
SCHEDULE 7.1
OUTSTANDING INDEBTEDNESS
FRP Real Estate Group
Consolidated Secured Debt Schedule
30-Nov-01
Date Term Maturity Original Interest Balance 30-
Note Amount Rate Nov-01
-------------------------------------------------------------------------------
Prinicpal -
Preston Court Jul-97 20 Years Aug 2017 4,900,000 7.950% 4,394,088
Principal -
Oregon Center Mar-94 20 Years Mar 2014 4,900,000 7.970% 3,830,333
Baltimore Life -
34 Loveton Sep-94 20 Years Oct 2014 1,820,000 9.000% 1,491,888
Principal -
9104 OZ Jun-95 20 Years Jul 2015 2,750,000 8.550% 2,304,893
Baltimore Life -
9108 OZ Sep-94 20 Years Oct 2014 2,350,000 9.000% 1,926,339
Prudential -
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ Aug-98 20 Years Jul 2018 3,200,000 6.900% 2,913,428
Pru. - 2206
& 2208 Lakeside Dec-99 20 Years Nov 2019 5,000,000 7.720% 4,772,715
GE Financial -
6920 Tudsbury Dec-00 20 Years Dec 2020 2,700,000 7.990% 2,647,789
GE Financial -
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Dec-00 20 Years Dec 2020 2,440,000 7.990% 2,392,826
▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇
& ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇ 20 Years Nov 2021 6,500,000 7.220% 6,500,000
▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ Nov-01 20 Years Nov 2021 3,700,000 7.220% 3,700,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Note May-99 5 Years May 2004 263,800 6.500% 168,124
Landrums Jun-95 11 Years May 2006 146,821 9.500% 84,839
----------------------------------------------------------------------------
TOTALS 40,670,621 37,127,263
----------------------------------------------------------------------------
Schedule 7.1
SCHEDULE 7.2
EXISTING LIENS
FRP Development Corp Real Estate Group
Pledged Assets
November 30, 2001
Location Co # Cost Depreciation Net Debt New
& Depletion Value Investment
------------------------------------------------------------------------------
▇▇▇▇▇ Property
(100) 1000 315,291 0 315,291 168,124 147,167
▇▇▇▇▇▇▇ Property
(1001) @ ▇▇▇▇▇▇ 1000 264,997 47,869 217,128 84,839 180,158
▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ 6,360,235 1,497,787 4,862,448 4,394,088 1,996,147
▇▇▇ & ▇▇▇ ▇▇▇▇▇▇
▇▇▇ (▇▇▇▇ & 1024) 1020 7,398,792 2,859,987 4,538,805 3,830,333 3,568,459
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(1031) 1030 3,387,762 1,200,288 2,187,474 1,491,888 1,895,874
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ (1051) 1050 3,367,386 737,869 2,629,517 2,304,893 1,062,493
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ (1052) 1050 3,362,179 965,179 2,397,000 1,926,339 1,435,840
▇▇▇▇ ▇▇▇▇▇▇ ▇▇
(1061) 1060 3,856,520 450,844 3,405,676 2,913,428 943,092
1504 & ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ (▇▇▇▇ &
1082) 1080 6,665,152 249,616 6,415,536 6,500,000 165,152
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ (1112) 1110 4,241,128 109,564 4,131,564 3,700,000 541,128
2206 & ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
(▇▇▇▇ & 1072) 1080 5,612,125 412,671 5,199,454 4,772,715 839,410
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
(1131) 1130 3,526,770 173,996 3,352,804 2,647,789 878,981
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇ (1141) 1140 2,804,937 152,049 2,652,888 2,392,826
Various Parcels 1,080,000
-------------------------------------------------------------------------------
-
51,163,274 8,857,689 43,385,585 37,127,262 14,036,012
-------------------------------------------------------------------------------
-
Schedule 7.2
SCHEDULE 7.4
EXISTING INVESTMENTS
Cash surrender value of officer's life insurance $600,000
Pablo Creek 40,000
Schedule 7.4
EXHIBIT A
REVOLVING CREDIT NOTE
[$___________] St. Mary's, Georgia
[Date]
FOR VALUE RECEIVED, the undersigned, PATRIOT TRANSPORTATION HOLDING, INC.,
a Florida corporation (the "Borrower"), hereby promises to pay to [name of
Lender] (the "Lender") or its registered assigns, at the office of SunTrust
Bank ("SunTrust") at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the
Commitment Termination Date (as defined in the Revolving Credit Agreement of
even date herewith (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement")), among the Borrower, the
lenders from time to time party thereto and SunTrust, as administrative agent
for the lenders, the lesser of the principal sum of [amount of such
Lender's Revolving Commitment] and the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said
office, at the rate or rates per annum and payable on such dates as provided in
the Credit Agreement. In addition, should legal action or an attorney-at-law
be utilized to collect any amount due hereunder, the Borrower further promises
to pay all costs of collection, including the reasonable attorneys' fees of the
Lender.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part
hereof, or otherwise recorded by such holder in its internal records; provided,
that the failure of the holder hereof to make such a notation or any error in
such notation shall not affect the obligations of the Borrower to make the
payments of principal and interest in accordance with the terms of this
Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is entitled
to the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. THIS REVOLVING
CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF FLORIDA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
PATRIOT TRANSPORTATION HOLDING, INC.
By:___________________________________
Name: ________________________________
Title: _______________________________
▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇ this the _____ day of January, 2002, personally appeared ____________
_________________, the ______________ of PATRIOT TRANSPORTATION HOLDING, INC.,
a Florida corporation (the "Borrower"), and before me, executed this Revolving
Credit Note in the principal amount of _______________________ AND 00/100
DOLLARS ($_____________), payable by the Borrower to _________________,
on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
____________________________________________
Signature of Notary Public, State of Georgia
____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced identification
____
Type of identification produced:
______________________________
(Notary Seal)
A-2
AFFIDAVIT OF OUT-OF-STATE DELIVERY
STATE OF GEORGIA
COUNTY OF CAMDEN
I, _________________, being first duly sworn, upon my oath, depose and
say:
1. That I am a/an __________________________________ of SUNTRUST BANK.
2. That on the ____ day of January, 2002, I witnessed the execution of
that certain Revolving Note (the "Note"), dated as of January ___, 2002, in the
face amount of $____________, payable by Patriot Transportation Holding, Inc.,
as Maker, to ____________________________ (the "Lender").
3. That the execution took place in the City of St. Mary's, State of
Georgia.
4. That I accepted delivery of the Note on behalf of the Lender in the
City of St. Mary's, State of Georgia.
_______________________________________
Name:__________________________________
Title:___________________________________
Sworn to and subscribed before me this ____ day of January,
2002.
____________________________________________
Signature of Notary Public, State of Georgia
____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification produced:
____________________________
(Notary Seal
A-3
LOANS AND PAYMENTS
Date Amount and Payments of Unpaid Principal Name of Person
Type of Loan Principal Balance of Note Making Notation
---------------------------------------------------------------------------
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
A-4
EXHIBIT B
SWINGLINE NOTE
$5,000,000.00 ▇▇. ▇▇▇▇'▇, ▇▇▇▇▇▇▇
[Date]
FOR VALUE RECEIVED, the undersigned, PATRIOT TRANSPORTATION HOLDING,
INC., a Florida corporation (the "Borrower"), hereby promises to pay to
SUNTRUST BANK, a Georgia corporation (the "Swingline Lender") or its registered
assigns, at the office of SunTrust Bank ("SunTrust") at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Swingline Termination Date (as defined
in the Revolving Credit Agreement of even date herewith (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement")), among the Borrower, the lenders from time to time party thereto
and SunTrust, as administrative agent for the lenders, the lesser of the
principal sum of FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00) and the
aggregate unpaid principal amount of all Swingline Loans made by the Swingline
Lender to the Borrower pursuant to the Credit Agreement, in lawful money of the
United States of America in immediately available funds, and to pay interest
from the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on such dates as provided in the Credit Agreement. In addition, should
legal action or an attorney-at-law be utilized to collect any amount due
hereunder, the Borrower further promises to pay all costs of collection,
including the reasonable attorneys' fees of the Swingline Lender.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on
a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that
the failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for optional and mandatory prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF FLORIDA AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
PATRIOT TRANSPORTATION HOLDING, INC.
By: ________________________________
Name:________________________________
Title:_______________________________
▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇ this the ____ day of January, 2002, personally appeared
_________________, the ______________ of PATRIOT TRANSPORTATION HOLDING, INC.,
a Florida corporation (the "Borrower"), and before me, executed this Swingline
Note in the principal amount of FIVE MILLION AND 00/100 DOLLARS
($5,000,000.00), payable by the Borrower to SunTrust Bank, on behalf of the
Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_______________________________________
Signature of Notary Public, State of Georgia
_____________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification produced:
____________________________
(Notary Seal)
B-2
AFFIDAVIT OF OUT-OF-STATE DELIVERY
STATE OF GEORGIA
COUNTY OF CAMDEN
I, _________________, being first duly sworn, upon my oath, depose and
say:
1. That I am a/an __________________________________ of SUNTRUST BANK
(the "Swingline Lender").
2. That on the ____ day of January, 2002, I witnessed the execution of
that certain Swingline Note (the "Note"), dated as of January ___, 2002, in the
face amount of $5,000,000.00, payable by Patriot Transportation Holding, Inc.,
as Maker, to the Swingline Lender.
3. That the execution took place in the City of St. Mary's, State of
Georgia.
4. That I accepted delivery of the Note on behalf of the Swingline
Lender in the City of St. Mary's, State of Georgia.
_______________________________________
Name:__________________________________
Title:___________________________________
Sworn to and subscribed before me this ____ day of January, 2002.
____________________________________________
Signature of Notary Public, State of Georgia
____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification produced:
____________________________
(Notary Seal)
B-3
LOANS AND PAYMENTS
Date Amount and Payments of Unpaid Principal Name of Person
Type of Loan Principal Balance of Note Making Notation
---------------------------------------------------------------------------
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
B-4
EXHIBIT C
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
[date to be supplied]
Reference is made to the Revolving Credit Agreement dated as of January
___, 2002 (as amended and in effect on the date hereof, the "Credit
Agreement"), among PATRIOT TRANSPORTATION HOLDING, INC., a Florida corporation,
the Lenders from time to time party hereto and SunTrust Bank, as Administrative
Agent for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meanings.
The Assignor hereby sells and assigns, without recourse, to the Assignee
designated below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth below in the Revolving Commitment
of the Assignor on the Assignment Date and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, together with the
Swingline Exposure of the Assignor on the Assignment Date, but excluding
accrued interest and fees to and excluding the Assignment Date. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and after
the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.19(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Florida.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
("Assignment Date"):
Percentage Assigned of
Revolving
Commitment (set forth, to at
least 8 decimals, as a
percentage of the aggregate
Revolving Commitments of all
Lenders thereunder)
Facility Principal Amount
Assigned
C-1
Revolving Loans: $ %
The terms set forth above are hereby agreed to:
[Name of Assignor], as Assignor
By: ____________________________
Name: __________________________
Title: _________________________
[Name of Assignee], as Assignee
By: ____________________________
Name: __________________________
Title: _________________________
The undersigned hereby consents to the within assignment:
Patriot Transportation Holding, Inc. SunTrust Bank, as
Administrative Agent:
By:________________________________ By: ____________________________
Name: Name:
Title: Title:
Consents to be included to the extent required by Section 10.4(b) of the Credit
Agreement.
C-2
EXHIBIT D
[FORM OF]
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT dated as of January __, 2002, among each of
the Subsidiaries listed on Schedule I hereto (each such subsidiary
individually, a "Guarantor" and collectively, the "Guarantors") of PATRIOT
TRANSPORTATION HOLDING, INC., a Florida corporation (the "Borrower"), and
SUNTRUST BANK, a Georgia banking corporation as administrative agent (the
"Administrative Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
Reference is made to the Revolving Credit Agreement dated as of January
__, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from time to time party
thereto (the "Lenders") and SunTrust Bank, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), and as swingline
lender. Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit
Agreement. Each of the Guarantors is a direct or indirect wholly-owned
Subsidiary of the Borrower, and part of a common economic enterprise, and
acknowledges that it will derive substantial benefit from the making of the
Loans by the Lenders because advances thereunder will be used for working
capital, capital expenditure and other general corporate purposes of the
Guarantors and will benefit the consolidated group. The obligation of the
Lenders to make Loans is conditioned on, among other things, the execution and
delivery by the Guarantors of a Subsidiary Guarantee Agreement in the form
hereof. As consideration therefor and in order to induce the Lenders to make
Loans, the Guarantors are willing to execute this Subsidiary Guarantee
Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise and (ii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Administrative Agent
and the Lenders under the Credit Agreement and the other Loan Documents, (b)
the due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents; and (c) the due and punctual payment and performance
of all obligations of the Borrower, monetary or otherwise, under each Hedging
Agreement entered into with a counterparty that was a Lender or an Affiliate of
a Lender at the time such Hedging Agreement was entered into (all the monetary
and other obligations referred to in the preceding clauses (a) through (c)
being collectively called the "Obligations"). Each Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from
and protest to the Borrower of any of the Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for nonpayment. To the
fullest extent permitted by applicable law, the obligations of each Guarantor
hereunder shall not be affected by (a) the failure of the Administrative Agent
or any Lender to assert any claim or demand or to enforce or exercise
any right or remedy
D-1
against the Borrower or any other Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the terms or
provisions of, this Agreement, any other Loan Document, any Guarantee or any
other agreement, including with respect to any other Guarantor under this
Agreement, or (c) the failure to perfect any security interest in, or the
release of, any of the security held by or on behalf of the Administrative
Agent or any Lender.
SECTION 3. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by the Administrative
Agent or any Lender to any of the security held for payment of the Obligations
or to any balance of any deposit account or credit on the books of the
Administrative Agent or any Lender in favor of the Borrower or any other
person.
SECTION 4. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment
in full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing,
the obligations of each Guarantor hereunder shall not be discharged or impaired
or otherwise affected by the failure of the Administrative Agent or any Lender
to assert any claim or demand or to enforce any remedy under the Credit
Agreement, any other Loan Document or any other agreement, by any waiver or
modification of any provision of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other
act or omission that may or might in any manner or to the extent vary the risk
of any Guarantor or that would otherwise operate as a discharge of each
Guarantor as a matter of law or equity (other than the indefeasible payment in
full in cash of all the Obligations).
SECTION 5. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the Obligations or any
part thereof from any cause, or the cessation from any cause of the liability
of the Borrower, other than the final and indefeasible payment in full in cash
of the Obligations. The Administrative Agent and the Lenders may, at their
election, foreclose on any security held by one or more of them by one or more
judicial or nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure, compromise or adjust any part of the Obligations, make any
other accommodation with the Borrower or any other guarantor, without affecting
or impairing in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been fully, finally and indefeasibly paid
in cash. Pursuant to applicable law, each Guarantor waives any defense arising
out of any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against the Borrower or
any other Guarantor or guarantor, as the case may be, or any security.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative
Agent or any Lender has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent for the benefit of the Lenders in cash the amount of such unpaid
Obligations. Upon payment by any Guarantor of any sums to the Administrative
Agent, all rights of such Guarantor against the Borrower arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise shall in all respects be subordinate and junior in right of
payment to the prior indefeasible payment in full in cash of all the
Obligations. In addition, any indebtedness of the Borrower now or hereafter
held by any Guarantor is hereby subordinated in right of payment to the prior
payment in full in cash of the Obligations. If any amount shall erroneously be
paid to any Guarantor on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of the
Borrower, such amount shall be held in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Documents.
D-2
SECTION 7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 8. Representations and Warranties. Each Guarantor represents
and warrants as to itself that all representations and warranties relating to
it (as a Subsidiary of the Borrower) contained in the Credit Agreement are true
and correct.
SECTION 9. Termination. The guarantees made hereunder (a) shall
terminate when all the Obligations have been paid in full in cash and the
Lenders have no further commitment to lend under the Credit Agreement and (b)
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or
must otherwise be restored by any Lender or any Guarantor upon the bankruptcy
or reorganization of the Borrower, any Guarantor or otherwise. In connection
with the foregoing, the Administrative Agent shall execute and deliver to such
Guarantor or Guarantor's designee, at such Guarantor's expense, any documents
or instruments which such Guarantor shall reasonably request from time to time
to evidence such termination and release.
SECTION 10. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantors that are
contained in this Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This Agreement shall
become effective as to any Guarantor when a counterpart hereof executed on
behalf of such Guarantor shall have been delivered to the Administrative Agent,
and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Guarantor and
the Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all of
the capital stock of a Guarantor is sold, transferred or otherwise disposed of
pursuant to a transaction permitted by the Credit Agreement, such
Guarantor shall be released from its obligations under this Agreement without
further action. This Agreement shall be construed as a separate agreement with
respect to each Guarantor and may be amended, modified, supplemented, waived or
released with respect to any Guarantor without the approval of any other
Guarantor and without affecting the obligations of any other Guarantor
hereunder.
SECTION 11. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights of the Administrative Agent hereunder and of the Lenders under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement
or consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver and consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on any Guarantor in any
case shall entitle such Guarantor to any other or further notice in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the Administrative Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
D-3
SECTION 13. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
SECTION 14. Survival of Agreement; Severability.
(a) All covenants, agreements representations and warranties made by
the Guarantors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or the other Loan
Documents shall be considered to have been relied upon by the Administrative
Agent and the Lenders and shall survive the making by the Lenders of
the Loans regardless of any investigation made by any of them or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any other fee or amount payable under
this Agreement or any other Loan Document is outstanding and unpaid and as long
as the Commitments have not been terminated.
(b) In the event one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 10), and
shall become effective as provided in Section 10. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
specified in Section 1.4 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process.
(a) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Circuit Court
of Orange County, Florida, or any Florida State court or Federal court of the
United States of America sitting in Orange County, Florida, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Orange County, Florida State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in the Circuit Court of Orange County, Florida or any other
appropriate Florida State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
D-4
SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HERBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
SECTION 19. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, certain Subsidiaries that were not in existence on the date
of the Credit Agreement are required to enter into this Agreement as a
Guarantor. Upon execution and delivery after the date hereof by the
Administrative Agent and such Subsidiary of an instrument in the form of Annex
I, such Subsidiary shall become a Guarantor hereunder with the same force and
effect as if originally named as a Guarantor herein. The execution and
delivery of any instrument adding an additional Guarantor as a party to this
Agreement shall not require the consent of any other Guarantor hereunder. The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Guarantor as a party to this
Agreement.
SECTION 20. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other Indebtedness at any time owing by such Lender to or for the
credit or the account of any Guarantor against any or all the obligations of
such Guarantor now or hereafter existing under this Agreement and the other
Loan Documents held by such Lender, irrespective of whether or not such Person
shall have made any demand under this Agreement or any other Loan Document and
although such obligations may be unmatured. The rights of each Lender under
this Section 20 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
D-5
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO
By: ___________________________________
Name:_________________________________
Title:__________________________________
SUNTRUST BANK, as
Administrative Agent
By: ___________________________________
Name:_________________________________
Title:__________________________________
D-6
SCHEDULE I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
Guarantor(s) Address
FRTL, Inc. 1801 Art Museum Drive
▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Florida Rock and Tank Lines, Inc. 1801 Art Museum Drive
▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sunbelt Transport, Inc. 1801 Art Museum Drive
▇▇-▇▇▇▇▇▇▇ Jacksonville, FL 32207
Florida Rock Properties, Inc. 1801 Art Museum Drive
▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FRP Development Corp. 1801 Art Museum Drive
▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule I
ANNEX I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Subsidiary
Guarantee Agreement (the "Guarantee Agreement") dated as of January __, 2002
among each of the subsidiaries listed on Schedule I thereto (each such
Subsidiary individually, a "Guarantor" and collectively, the "Guarantors")
of PATRIOT TRANSPORTATION HOLDING, INC., a Florida corporation (the
"Borrower"), and SUNTRUST BANK, a Georgia banking corporation, as
Administrative Agent (the "Administrative Agent") for the Lenders (as defined
in the Credit Agreement referred to below).
A. Reference is made to the Revolving Credit Agreement dated as of
January __, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to
time party thereto (the "Lenders") and SunTrust Bank, as Administrative Agent
and swingline lender. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
B. The Guarantors have entered into the Guarantee Agreement in order
to induce the Lenders to make Loans. Pursuant to Section 5.10 of the Credit
Agreement, certain Subsidiaries that were not in existence on the date of the
Credit Agreement are required to enter into the Guarantee Agreement as a
Guarantor. Section 19 of the Guarantee Agreement provides that additional
Subsidiaries of the Borrower may become Guarantors under the Guarantee
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary of the Borrower (the "New Guarantor")
is executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Guarantor under the Guarantee Agreement in order to
induce the Lenders to make additional Loans and as consideration for Loans
previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 19 of the Guarantee Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a Guarantor in the Guarantee Agreement shall be deemed to
include the New Guarantor. The Guarantee Agreement is hereby incorporated
herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
Annex I-1
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected
or impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 13 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the
Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the fees, disbursements and other charges of counsel for the
Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[Name of New Guarantor]
By: ___________________________________
Name:__________________________________
Title:_________________________________
Address:_______________________________
_______________________________
SUNTRUST BANK, as
Administrative Agent
By: ___________________________________
Name:__________________________________
Title:_________________________________
Annex I-2
EXHIBIT E
[FORM OF]
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT dated as of January __,
2002 among PATRIOT TRANSPORTATION HOLDING, INC., a Florida corporation (the
"Borrower"), each Subsidiary listed on Schedule I hereto (the "Guarantors"),
and SUNTRUST BANK, a Georgia banking corporation, as administrative agent (in
such capacity, the "Administrative Agent") for the Lenders (as defined in the
Credit Agreement referred to below).
Reference is made to (a) the Revolving Credit Agreement dated as of
January __, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to
time party thereto (the "Lenders") and SunTrust Bank, as Administrative Agent,
and swingline lender, and (b) the Subsidiary Guarantee Agreement dated as of
January __, 2002, among the Guarantors and the Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement"). Capitalized terms used herein and not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit
Agreement. The Guarantors have guaranteed such Loans and the other Obligations
(as defined in the Guarantee Agreement) of the Borrower under the Credit
Agreement pursuant to the Guarantee Agreement. The obligation of the Lenders
to make Loans is conditioned on, among other things, the execution and delivery
by the Borrower and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment
shall be made by any Guarantor under the Guarantee Agreement, the Borrower
shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to whom such payment
shall have been made to the extent of such payment.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement and
such other Guarantor (the "Claiming Guarantor") shall not have been fully
indemnified by the Borrower as provided in Section 1, the Contributing
Guarantor shall indemnify the Claiming Guarantor in an amount equal to the
amount of such payment in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a
party hereto pursuant to Section 12, the date of the Supplement hereto executed
and delivered by such Guarantor). Any Contributing Guarantor making any
payment to a Claiming Guarantor pursuant to this Section 2 shall be subrogated
to the rights of such Claiming Guarantor under Section 1 to the extent of such
payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in
full in cash of the Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required under applicable law or otherwise shall
in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable
for the full amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as any of the
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Commitments under the Credit Agreement have not been terminated, and shall
continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Lender or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
SECTION 6. No Waiver; Amendment.
(a) No failure on the part of the Administrative Agent or any Guarantor
to exercise, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy by the Administrative Agent or any
Guarantor preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law. None of the
Administrative Agent and the Guarantors shall be deemed to have waived any
rights hereunder unless such waiver shall be in writing and signed by such
parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Guarantors and the Administrative Agent, with the prior
written consent of the Required Lenders (except as otherwise provided in the
Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors
and assigns. Neither the Borrower nor any Guarantor may assign or transfer any
of its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Guarantee Agreement in accordance with such
Guarantee Agreement and the Credit Agreement, such Guarantor will cease to have
any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability.
(a) All covenants and agreements made by the Borrower and each
Guarantor herein and in the certificates or other instruments prepared or
delivered in connection with this Agreement or the other Loan Documents shall
be considered to have been relied upon by the Administrative Agent, the Lenders
and each Guarantor and shall survive the making by the Lenders of the Loans,
and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loans or any other fee or amount payable under the
Credit Agreement or this Agreement or under any of the other Loan Documents is
outstanding and unpaid and as long as the Commitments have not been terminated.
(b) In case one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, no party
hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when
E-2
taken together shall constitute a single contract. This Agreement shall be
effective with respect to any Guarantor when a counterpart bearing the
signature of such Guarantor shall have been delivered to the Administrative
Agent. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.4 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, certain Subsidiaries of the Borrower that were not in
existence on the date of the Credit Agreement are required to enter into the
Guarantee Agreement as Guarantor. Upon the execution and delivery, after the
date hereof, by the Administrative Agent and such Subsidiary of an instrument
in the form of Annex I hereto, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
hereunder. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any
Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing
above.
PATRIOT TRANSPORTATION HOLDING, INC.
By: _________________________________
Name:________________________________
Title:_______________________________
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO, as a Guarantor
By: _________________________________
Name:________________________________
Title:_______________________________
SUNTRUST BANK, as
Administrative Agent
By: _________________________________
Name:________________________________
Title:_______________________________
E-3
SCHEDULE I
TO THE INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
Guarantors
Name Address
FRTL, Inc. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Florida Rock and Tank Lines, Inc. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sunbelt Transport, Inc. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Florida Rock Properties, Inc. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FRP Development Corp. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule I-1
ANNEX I TO
THE INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Indemnity,
Subrogation and Contribution Agreement dated as of January __, 2002 (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Indemnity, Subrogation and Contribution Agreement") among PATRIOT
TRANSPORTATION HOLDING, INC., a Florida corporation (the "Borrower"), each
Subsidiary listed on Schedule I thereto (the "Guarantors") and SUNTRUST BANK, a
Georgia banking corporation, as administrative agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to (a) the Revolving Credit Agreement dated as of
January __, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to
time party thereto (the "Lenders") and SunTrust Bank, as the Administrative
Agent and swingline lender, and (b) the Subsidiary Guarantee Agreement dated as
January __, 2002, among the Guarantors and the Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement").
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Indemnity, Subrogation
and Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans. Pursuant to Section 5.10 of the Credit Agreement, certain Subsidiaries
that were not in existence on the date of the Credit Agreement are required to
enter into the Guarantee Agreement as a Guarantor. Section 12 of the
Indemnity, Subrogation and Contribution Agreement provides that additional
Subsidiaries may become Guarantors under the Indemnity, Subrogation and
Contribution Agreement by execution and delivery of an instrument in the form
of this Supplement. The undersigned Subsidiary (the "New Guarantor") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Lenders to make additional Loans
and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor
and the New Guarantor hereby agrees to all the terms and provisions of the
Indemnity, Subrogation and Contribution Agreement applicable to it as Guarantor
thereunder. Each reference to a Guarantor in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signature of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
Annex I-1
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not
in any way be affected or impaired. The parties hereto shall endeavor in good-
faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[Name of New Guarantor]
By: ________________________________
Name:_______________________________
Title:______________________________
Address:____________________________
SUNTRUST BANK, as
Administrative Agent
By: _________________________________
Name:________________________________
Title:_______________________________
Annex I-2
SCHEDULE I
TO SUPPLEMENT NO. ____ TO THE INDEMNITY,
SUBROGATION AND CONTRIBUTION AGREEMENT
Guarantors
Name Address
Schedule I
EXHIBIT 2.3
NOTICE OF REVOLVING BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of January
__, 2002 (as amended and in effect on the date hereof, the "Credit Agreement"),
among the undersigned, as Borrower, the Lenders named therein, and SunTrust
Bank, as Administrative Agent. Terms defined in the Credit Agreement are
used herein with the same meanings. This notice constitutes a Notice of
Revolving Borrowing, and the Borrower hereby requests a Revolving Borrowing
under the Credit Agreement, and in that connection the Borrower specifies the
following information with respect to the Revolving Borrowing requested hereby:
(A) Aggregate principal amount of Revolving Borrowing : _______
(B) Date of Revolving Borrowing (which is a Business Day): __________
(C) Interest Rate basis : ___________________________________
(D) Interest Period : _________________________________________
(E) Location and number of Borrower's account to which proceeds of
Revolving Borrowing are to be disbursed: ___________________________________
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
PATRIOT TRANSPORTATION HOLDING, INC.
By: _______________________________
Name:______________________________
Title:_____________________________
Not less than $100,000.00 and an integralmultiple of $50,000.00.
Eurodollar Borrowing or Base Rate Borrowing
Which much comply with the definition of "Interest Period" and end not later
than the Commitment Termination Date.
Exhibit 2.3
EXHIBIT 2.5
NOTICE OF SWINGLINE BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of January
__, 2002 (as amended and in effect on the date hereof, the "Credit Agreement"),
among the undersigned, as Borrower, the Lenders named therein, and SunTrust
Bank, as Administrative Agent. Terms defined in the Credit Agreement are
used herein with the same meanings. This notice constitutes a Notice of
Revolving Borrowing, and the Borrower hereby requests a Revolving Borrowing
under the Credit Agreement, and in that connection the Borrower specifies the
following information with respect to the Revolving Borrowing requested hereby:
(A) Principal amount of Swingline Loan : ________________________
(B) Date of Swingline Loan (which is a Business Day) _________________
(C) Interest rate basis : _______________________________________
(D) Location and number of Borrower's account to which proceeds of
Swingline Loan are to be disbursed:
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
PATRIOT TRANSPORTATION HOLDING, INC.
By: _______________________________
Name:______________________________
Title:_____________________________
Not less than $100,000.00 and an integral multiple of $50,000.00.
Base Rate or other rate basis as agreed between Borrower and Swingline Lender
Exhibit 2.5
EXHIBIT 2.7
NOTICE OF CONTINUATION/CONVERSION
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of January
__, 2002 (as amended and in effect on the date hereof, the "Credit Agreement"),
among the undersigned, as Borrower, the Lenders named therein, and SunTrust
Bank, as Administrative Agent. Terms defined in the Credit Agreement are
used herein with the same meanings. This notice constitutes a Notice of
Continuation/Conversion and the Borrower hereby requests the conversion or
continuation of a Revolving Borrowing under the Credit Agreement, and in that
connection the Borrower specifies the following information with respect to the
Revolving Borrowing to be converted or continued as requested hereby:
(A) Revolving Borrowing to which this request applies: _______________
(B) Principal amount of Revolving Borrowing to be converted/continued:
__________________________________________________________________
(C) Effective date of election (which is a Business Day): ___________
(D) Interest rate basis: ____________________________________________
(E) Interest Period: _______________________________________________
Very truly yours,
PATRIOT TRANSPORTATION HOLDING, INC.
By: ______________________________
Name:______________________________
Title:_____________________________
Exhibit 2.7
EXHIBIT 3.1(b)(iv)
FORM OF SECRETARY'S CERTIFICATE
Reference is made to the Revolving Credit Agreement dated as of January
__, 2002 (the "Credit Agreement"), among Patriot Transportation Holding, Inc.
(the "Borrower"), the lenders named therein, and SunTrust Bank, as
Administrative Agent. Terms defined in the Credit Agreement are used herein
with the same meanings. This certificate is being delivered pursuant to
Section 3.1(b)(iv) of the Credit Agreement.
I, [ ], Secretary of the Borrower, DO HEREBY
CERTIFY that:
(a) annexed hereto as Exhibit A is a true and correct copy of the
articles of incorporation of the Borrower, which have not been amended,
modified, supplemented or restated except as set forth in Exhibit A and remain
in full force and effect as of the date hereof;
(b) no proceeding have been instituted or are pending or contemplated
with respect to the dissolution, liquidation or sale of all or substantially
all the assets of the Borrower or threatening its existence or the forfeiture
or any of its corporate rights;
(c) annexed hereto as Exhibit B is a true and correct copy of the
Bylaws of the Borrower as in effect on the date of the attached Resolutions and
at all times thereafter through the date hereof;
(d) annexed hereto as Exhibit C is a true and correct copy of certain
resolutions duly adopted by the Board of Directors of the Borrower at a meeting
of said Board of Directors duly called and held on January __, 2002, which
resolutions are the only resolutions adopted by the Board of Directors of the
Borrower or any committee thereof relating to the Credit Agreement and the
other Loan Documents to which the Borrower is a party and the transactions
contemplated therein and have not been revoked, amended, supplemented or
modified and are in full force and effect on the date hereof; and
(e) each of the persons named below is a duly elected and qualified
officer of the Borrower holding the respective office set forth opposite his or
her name and the signature set forth opposite each such person's name is his or
her genuine signature:
Name Title Specimen Signature
[Include all
officers who are
signing the Credit
Agreement
or any other Loan
Documents.]
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
January, 2002.
_______________________________________
______________________, Secretary
Exhibit 3.1(b)(iv)-1
I, [ ], [ ] of the Borrower,
do hereby certify that [ ] has been duly elected, is duly
qualified and is currently serving as the [Assistant] Secretary of the
Borrower, that the signature set forth above is [his/her] genuine signature and
that [he/she] has held such office at all times since [ ].
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
January, 2002.
_________________________________
Title: __________________________
Exhibit 3.1(b)(iv)-2
EXHIBIT 3.1(b)(vii)
FORM OF OFFICER'S CERTIFICATE
Reference is made to the Revolving Credit Agreement dated as of January
__, 2002 (the "Credit Agreement"), among PATRIOT TRANSPORTATION HOLDING, INC.
(the "Borrower"), the Lenders from time to time party thereto, and SUNTRUST
BANK, as Administrative Agent. Terms defined in the Credit Agreement are used
herein with the same meanings. This certificate is being delivered pursuant to
Section 3.1(b)(vii) of the Credit Agreement.
I, [ ], [ ] of the
Borrower, DO HEREBY CERTIFY that:
(a) the representations and warranties of the Borrower set forth in the
Credit Agreement are true and correct on and as of the date hereof; and
(b) no Default or Event of Default has occurred and is continuing at
the date hereof; and
(c) since [the date], which is the date of the most recent financial
statements described in Section 5.1(a) of the Credit Agreement, there has been
no change which has had or could reasonably be expected to have a Material
Adverse Effect; and
(d) no consents, approvals, authorizations, registrations or filings
are required to be made or obtained by or on behalf of the Borrower or any of
the Guarantors in connection with the Loans.
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
January, 2002.
By: ___________________________________
Name:__________________________________
Title:_________________________________
Exhibit 3.1(b)(vii)-1
ACKNOWLEDGMENTS
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇ this the ____ day of January, 2002, personally appeared
____________________, as the ________________________ of Patriot Transportation
Holding, Inc., a Florida corporation (the "Borrower"), and before me, executed
the foregoing Revolving Credit Agreement dated as of January ___, 2002, among
the Borrower, SunTrust Bank, as Administrative Agent and the Lenders
signatories thereto on behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
________________________________________________
Signature of Notary Public, State of Georgia
________________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification
produced:________________________
(Notary Seal)
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇ this the ____ day of January, 2002, personally appeared
______________________, as the _________________________ of SunTrust Bank, a
Georgia banking corporation as Administrative Agent, Swingline Lender and
Lender (the "Administrative Agent"), and before me, executed the foregoing
Revolving Credit Agreement dated as of January ____, 2002, among the Borrower,
the Administrative Agent and the Lenders signatories thereto on behalf of the
Administrative Agent.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_________________________________________________
Signature of Notary Public, State of Georgia
_________________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification
produced:________________________
(Notary Seal)
AFFIDAVIT OF OUT-OF-STATE DELIVERY
STATE OF GEORGIA
COUNTY OF ▇▇▇▇▇▇
I, _________________, being first duly sworn, upon my oath, depose and
say:
1. That I am a/an __________________________________ of SUNTRUST BANK
(the "Bank").
2. That on the ____ day of January, 2002, I witnessed the execution of
that certain Revolving Credit Agreement (the "Credit Amendment"), dated as of
January ___, 2002, among Patriot Transportation Holding, Inc., the Bank, as
Administrative Agent, and the Lenders signatories thereto.
3. That the execution took place in the City of Atlanta, State of
Georgia.
4. That I accepted delivery of the Credit Agreement on behalf of the
Bank in the City of Atlanta, State of Georgia.
_______________________________________
Name:_________________________________
Title:__________________________________
Sworn to and subscribed before me this ____ day of January, 2002.
____________________________________________
Signature of Notary Public, State of Georgia
____________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification
produced:__________________________
(Notary Seal)
ACKNOWLEDGMENT OF BANK OF AMERICA, N.A.
STATE OF _____________
COUNTY OF ___________
On this the ____ day of January, 2002, personally appeared
______________________, as the _________________________ of Bank of America,
N.A., a national banking association (the "Lender"), and before me, executed
the foregoing Revolving Credit Agreement dated as of January ____, 2002, among
the Borrower, SunTrust Bank, as Administrative Agent and the Lenders
signatories thereto on behalf of the Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_________________________________________________
Signature of Notary Public, State of ___________
_________________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification
produced:________________________
(Notary Seal)
ACKNOWLEDGMENT OF FIRST UNION
STATE OF _____________
COUNTY OF ___________
On this the ____ day of January, 2002, personally appeared
______________________, as the _________________________ of First Union
National Bank, a national banking association (the "Lender"), and before me,
executed the foregoing Revolving Credit Agreement dated as of January ____,
2002, among the Borrower, SunTrust Bank, as Administrative Agent and the
Lenders signatories thereto on behalf of the Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_________________________________________________
Signature of Notary Public, State of ______________
_________________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification
produced:_______________________
(Notary Seal)
ACKNOWLEDGMENT OF FIRST UNION
STATE OF _____________
COUNTY OF ___________
On this the ____ day of January, 2002, personally appeared
______________________, as the _________________________ of Compass Bank, a
__________________________ (the "Lender"), and before me, executed the
foregoing Revolving Credit Agreement dated as of January ____, 2002, among the
Borrower, SunTrust Bank, as Administrative Agent and the Lenders signatories
thereto on behalf of the Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
_________________________________________________
Signature of Notary Public, State of ______________
_________________________________________________
(Print, Type or Stamp Commissioned Name of
Notary Public)
Personally known ____; OR Produced
identification ____
Type of identification
produced:_______________________
(Notary Seal)