EXHIBIT 4.2
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 25, 2003
AMONG
CENTEX CONSTRUCTION PRODUCTS, INC.,
AS BORROWER,
THE LENDERS,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND LC ISSUER,
PNC BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT,
AND
BANC ONE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER AND
SOLE BOOK MANAGER
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS............................................................................... 1
ARTICLE II THE CREDITS............................................................................... 14
2.1. Commitment................................................................................ 14
2.2. Required Payments; Termination............................................................ 14
2.3. Ratable Loans............................................................................. 14
2.4. Types of Advances......................................................................... 15
2.5. Commitment Fee; Reductions in Aggregate Commitment........................................ 15
2.6. Increase in Commitment.................................................................... 15
2.7. Minimum Amount of Each Advance............................................................ 17
2.8. Optional Principal Payments............................................................... 17
2.9. Method of Selecting Types and Interest Periods for New Advances........................... 17
2.10. Conversion and Continuation of Outstanding Advances....................................... 18
2.11. Changes in Interest Rate, etc............................................................. 18
2.12. Rates Applicable After Default............................................................ 19
2.13. Method of Payment......................................................................... 19
2.14. Noteless Agreement; Evidence of Indebtedness.............................................. 19
2.15. Telephonic Notices........................................................................ 20
2.16. Interest Payment Dates; Interest and Fee Basis............................................ 20
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions........... 21
2.18. Lending Installations..................................................................... 21
2.19. Non-Receipt of Funds by the Administrative Agent.......................................... 21
2.20. Facility LCs.............................................................................. 22
2.21. Replacement of Lender..................................................................... 26
2.22. Swing Line Subfacility.................................................................... 27
2.23. Limitation of Interest.................................................................... 28
ARTICLE III YIELD PROTECTION; TAXES................................................................... 29
3.1. Yield Protection.......................................................................... 29
3.2. Changes in Capital Adequacy Regulations................................................... 30
3.3. Availability of Types of Advances......................................................... 31
3.4. Funding Indemnification................................................................... 31
3.5. Taxes..................................................................................... 31
3.6. Lender Statements; Survival of Indemnity.................................................. 33
ARTICLE IV CONDITIONS PRECEDENT...................................................................... 33
4.1. Initial Advance........................................................................... 33
4.2. Each Credit Extension..................................................................... 35
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................ 35
5.1. Existence and Standing.................................................................... 35
5.2. Authorization and Validity................................................................ 36
5.3. No Conflict; Government Consent........................................................... 36
5.4. Financial Statements...................................................................... 36
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5.5. Material Adverse Change................................................................... 37
5.6. Taxes..................................................................................... 37
5.7. Litigation and Contingent Obligations..................................................... 37
5.8. Subsidiaries.............................................................................. 37
5.9. ERISA..................................................................................... 37
5.10. Accuracy of Information................................................................... 38
5.11. Regulation U.............................................................................. 38
5.12. Material Agreements....................................................................... 38
5.13. Compliance With Laws...................................................................... 38
5.14. Ownership of Properties................................................................... 38
5.15. Plan Assets; Prohibited Transactions...................................................... 38
5.16. Environmental Matters..................................................................... 38
5.17. Investment Company Act.................................................................... 39
5.18. Public Utility Holding Company Act........................................................ 39
5.19. Subordinated Indebtedness................................................................. 39
5.20. Post-Retirement Benefits.................................................................. 39
5.21. Solvency.................................................................................. 39
ARTICLE VI COVENANTS................................................................................. 40
6.1. Financial Reporting....................................................................... 40
6.2. Use of Proceeds........................................................................... 41
6.3. Notice of Default......................................................................... 41
6.4. Taxes..................................................................................... 41
6.5. Insurance................................................................................. 41
6.6. Compliance with Laws...................................................................... 42
6.7. Maintenance of Properties................................................................. 42
6.8. Books and Records......................................................................... 42
6.9. Inspection................................................................................ 42
6.10. Merger.................................................................................... 42
6.11. Sale of Assets............................................................................ 42
6.12. Liens..................................................................................... 43
6.13. Affiliates................................................................................ 44
6.14. Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities................... 44
6.15. Letters of Credit......................................................................... 44
6.16. Financial Covenants....................................................................... 44
6.17. Lines of Business......................................................................... 44
6.18. Prepayment of Debt........................................................................ 45
6.19. Future Subsidiaries....................................................................... 45
6.20. Prohibition on Granting Negative Pledges.................................................. 45
6.21. Prohibition on Granting Restrictions on Distributions..................................... 45
6.22. Prohibition on Synthetic Leases........................................................... 45
6.23. Acquisitions.............................................................................. 45
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ARTICLE VII DEFAULTS.................................................................................. 46
7.1. .......................................................................................... 46
7.2. .......................................................................................... 46
7.3. .......................................................................................... 46
7.4. .......................................................................................... 46
7.5. .......................................................................................... 46
7.6. .......................................................................................... 46
7.7. .......................................................................................... 47
7.8. .......................................................................................... 47
7.9. .......................................................................................... 47
7.10. .......................................................................................... 47
7.11. .......................................................................................... 47
7.12. .......................................................................................... 47
7.13. .......................................................................................... 48
7.14. .......................................................................................... 48
7.15. .......................................................................................... 48
7.16. .......................................................................................... 48
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................ 48
8.1. Acceleration; Facility LC Collateral Account.............................................. 48
8.2. Amendments................................................................................ 49
8.3. Preservation of Rights.................................................................... 50
ARTICLE IX GENERAL PROVISIONS........................................................................ 50
9.1. Survival of Representations............................................................... 50
9.2. Governmental Regulation................................................................... 50
9.3. Headings.................................................................................. 51
9.4. ENTIRE AGREEMENT.......................................................................... 51
9.5. Several Obligations; Benefits of this Agreement........................................... 51
9.6. Expenses; Indemnification................................................................. 51
9.7. Numbers of Documents...................................................................... 52
9.8. Accounting................................................................................ 52
9.9. Severability of Provisions................................................................ 52
9.10. Nonliability of Lenders................................................................... 52
9.11. Confidentiality........................................................................... 53
9.12. Nonreliance............................................................................... 53
9.13. Disclosure................................................................................ 53
9.14. Survival of Prior Agreements.............................................................. 53
ARTICLE X THE ADMINISTRATIVE AGENT.................................................................. 53
10.1. Appointment; Nature of Relationship....................................................... 53
10.2. Powers.................................................................................... 54
10.3. General Immunity.......................................................................... 54
10.4. No Responsibility for Credit Extensions, Recitals, etc.................................... 54
10.5. Action on Instructions of Lenders......................................................... 55
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10.6. Employment of Administrative Agents and Counsel........................................... 55
10.7. Reliance on Documents; Counsel............................................................ 55
10.8. Administrative Agent's Reimbursement and Indemnification.................................. 55
10.9. Notice of Default......................................................................... 56
10.10. Rights as a Lender........................................................................ 56
10.11. Lender Credit Decision.................................................................... 56
10.12. Successor Administrative Agent............................................................ 56
10.13. Administrative Agent and Arranger Fees.................................................... 57
10.14. Delegation to Affiliates.................................................................. 57
10.15. Co-Agents, Syndication Agent, etc......................................................... 57
ARTICLE XI SETOFF; RATABLE PAYMENTS.................................................................. 58
11.1. Setoff.................................................................................... 58
11.2. Ratable Payments.......................................................................... 58
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS......................................... 58
12.1. Successors and Assigns.................................................................... 58
12.2. Participations............................................................................ 59
12.3. Assignments............................................................................... 60
12.4. Dissemination of Information.............................................................. 61
12.5. Tax Treatment............................................................................. 62
ARTICLE XIII NOTICES................................................................................... 62
13.1. Notices................................................................................... 62
13.2. Change of Address......................................................................... 62
ARTICLE XIV COUNTERPARTS.............................................................................. 62
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.............................. 63
15.1. CHOICE OF LAW............................................................................. 63
15.2. CONSENT TO JURISDICTION................................................................... 63
15.3. WAIVER OF JURY TRIAL...................................................................... 63
15.4. Effect of Amendment and Restatement....................................................... 63
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TABLE OF CONTENTS
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EXHIBITS:
A - PRICING SCHEDULE
B - COMPLIANCE CERTIFICATE
C - ASSIGNMENT AGREEMENT
D - LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
E - NOTE
F - COMMITMENT AND ACCEPTANCE
SCHEDULES:
1 - COMMITMENTS
2 - SUBSIDIARIES AND OTHER INVESTMENTS
3 - LIENS
4 - EXISTING FACILITY LCS
v
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement (this "Agreement") is
entered into as of March 25, 2003, by and among the banks listed on the
signature pages hereof (the "Lenders"), CENTEX CONSTRUCTION PRODUCTS, INC., a
Delaware corporation (the "Borrower"), PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as Syndication Agent (the "Syndication Agent"),
BANC ONE CAPITAL MARKETS, INC., as Sole Lead Arranger and Sole Book Manager (the
"Sole Lead Arranger" and/or "Sole Book Manager"), and BANK ONE, NA, as LC Issuer
and Administrative Agent (the "LC Issuer" and/or the "Administrative Agent").
RECITALS
A. The Borrower, certain lenders party thereto, the Sole Lead
Arranger and Sole Book Manager, the LC Issuer and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement dated as of June
30, 2001 to be effective as of July 20, 2001 (as the same has been amended,
restated or modified from time to time, the "Existing Credit Agreement").
B. The Borrower desires to amend and restate the Existing Credit
Agreement to amend certain covenants and provisions therein, and the
Administrative Agent and Lenders have agreed to such amendment, subject to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Advance" means (a) a borrowing hereunder, (i) made by the Lenders on
the same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same
Type and, in the case of Eurodollar Loans, for the same Interest Period, (b) a
Swing Line Advance, and (c) a payment under a Facility LC.
"Administrative Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article X.
"Agents" means, collectively, the Administrative Agent and the
Syndication Agent.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced or increased from time to time pursuant to the terms
hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this second amended and restated credit agreement, as
it may be amended, restated or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of the Federal Funds Effective Rate for such day plus 1/2% per
annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Commitment Fees are accruing on the Available Aggregate Commitment at
such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Sole Lead Arranger and Sole
Book Manager.
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"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President, Chief Executive
Officer, Executive Vice President, Chief Financial Officer, Senior Vice
President or Assistant Treasurer of the Borrower, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Dallas, Texas, in its individual capacity, and its
successors.
"Borrower" means Centex Construction Products, Inc., a Delaware
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.9.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Dallas and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Dallas for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means (i) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 50% or more of the outstanding shares of voting stock
of the Borrower; or (ii) Centex Corporation shall cease to own, free and clear
of all Liens or other encumbrances, greater than 50% of the outstanding shares
of voting stock of the Borrower on a fully diluted basis.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
3
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans to, and participate in Facility LCs issued upon the application of,
the Borrower in an aggregate amount not exceeding the amount set forth on
Schedule 1 or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Commitment Fee" is defined in Section 2.5.
"Commitment and Acceptance" is defined in Section 2.6(i).
"Consolidated EBIT" means Consolidated EBITDA minus depreciation and
amortization, all calculated for the Borrower and its Subsidiaries on a
consolidated basis.
"Consolidated EBITDA" means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) extraordinary losses incurred other than in the
ordinary course of business, minus, to the extent included in Consolidated Net
Income, extraordinary gains realized other than in the ordinary course of
business, all calculated for the Borrower and its Subsidiaries on a consolidated
basis. Notwithstanding anything herein to the contrary, but without duplication,
Consolidated EBITDA shall be inclusive of either (a) in the case of an
Acquisition of equity interests in a Person, the EBITDA (calculated on a basis
consistent with this definition of Consolidated EBITDA) of such Person before it
became a Subsidiary of the Borrower or (b) in the case of an Acquisition of
assets, or any other acquisition of assets if the Administrative Agent so
agrees, the EBITDA associated with such acquired assets before such acquisition
by the Borrower or any Subsidiary but exclusive of either (1) in the case of a
disposition of equity interests in a Person, the EBITDA (calculated on the basis
consistent with this definition of Consolidated EBITDA) of such Person after it
is directly or indirectly disposed of by the Borrower or (2) in the case of a
disposition of assets, the EBITDA associated with such assets after such assets
are disposed of by the Borrower or any Subsidiary, all of which amounts shall be
based upon audited financial statements.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense and preferred stock dividends of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Tangible Net Worth" means at any time the Consolidated
Net Worth, minus (a) any intangible assets, including, without limitation,
patents, patent rights, trademarks, trade names, franchises, copyrights,
goodwill, and other similar intangible assets of the Borrower
4
and its Subsidiaries calculated on a consolidated basis as of such time, minus
(b) any non-cash gain (or plus any non-cash loss, as applicable) resulting from
any xxxx-to-market adjustments made directly to Consolidated Net Worth as a
result of fluctuations in the value of financial instruments owned by the
Borrower or any of its Subsidiaries as mandated under FAS 133.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership;
provided, however, to the extent any Contingent Obligation is included in the
calculation of Leverage Ratio, such amounts shall include only those contingent
obligations on the balance sheet of such Person (or disclosed and assigned a
monetary value in the footnotes thereto) properly prepared in accordance with
Agreement Accounting Principles.
"Conversion/Continuation Notice" is defined in Section 2.10.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date of a Facility LC.
"Default" means an event described in Article VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurodollar Rate.
5
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters
Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period, provided that, (i) if Reuters Screen FRBD is not available to the
Administrative Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
and having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Administrative
Agent, the applicable Eurodollar Base Rate for the relevant Interest Period
shall instead be the rate determined by the Administrative Agent to be the rate
at which Bank One or one of its Affiliate banks offers to place deposits in U.S.
dollars with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant Eurodollar
Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative Agent's or such
Lender's principal executive office or such Lender's applicable Lending
Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Eurodollar Borrowing" is defined in Section 15.4.
"Existing Facility LCs" is defined in Section 2.20.1.
"Facility LC" is defined in Section 2.20.1.
"Facility LC Application" is defined in Section 2.20.3.
"Facility LC Collateral Account" is defined in Section 2.20.11.
"Facility Termination Date" means March 25, 2006, or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
6
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Dallas
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.12, bears interest at the Floating Rate.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions.
"Guarantors" means collectively, all of the Significant Subsidiaries of
the Borrower and their respective successors and assigns.
"Guaranty" means that certain Second Amended and Restated Guaranty
dated as of the date hereof executed by the Guarantors in favor of the
Administrative Agent, for the ratable benefit of the Lenders, as it may be
amended, restated, supplemented or modified and in effect from time to time.
"Increase Date" is defined in Section 2.6(ii).
"Increasing Lender" is defined in Section 2.6(i).
"Indebtedness" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens on or
payable out of the proceeds or production from Property now or hereafter owned
or acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) obligations to purchase securities or
other Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) Net Xxxx-to-Market Exposure under Rate Management
Transactions and other Financial Contracts, (viii) Contingent Obligations, (ix)
Letters of Credit, (x) Sale and
7
Leaseback Transactions, (xi) Off-Balance Sheet Liabilities, and (xii) any other
obligation for borrowed money or other financial accommodation which in
accordance with Agreement Accounting Principles would be shown as a liability on
the consolidated balance sheet of such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one week or one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. A weekly Interest Period
shall end on the day of the next following week which corresponds to the day of
the week on which it began. A monthly Interest Period shall end on the day which
corresponds numerically to such date one, two, three or six months thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second, third or sixth succeeding month, such Interest Period shall
end on the last Business Day of such next, second, third or sixth succeeding
month. If an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding Business
Day, provided, however, that, in the case of a monthly Interest Period, if said
next succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"LC Fee" is defined in Section 2.20.4.
"LC Issuer" means Bank One, NA (or any subsidiary or Affiliate of Bank
One, NA designated by Bank One, NA) in its capacity as issuer of Facility LCs
hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.20.5.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent listed on the signature pages hereof or on a
Schedule or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.18.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of the end of each of the Borrower's fiscal
quarters, the ratio of (i) Consolidated Indebtedness outstanding on such date to
(ii) Consolidated EBITDA for the Borrower's then most-recently ended four fiscal
quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference, or
priority or other security agreement
8
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Facility LC Applications,
any Notes issued pursuant to Section 2.14, the Guaranty and any other related
documents, instruments and agreements now or hereafter executed by Borrower or
any Guarantor in connection with any of the foregoing.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, financial condition, or results of operations of the
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower
to perform its obligations under the Loan Documents to which it is a party, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Administrative Agent, the LC Issuer or the Lenders
thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Maximum Rate" means, at any time and with respect to any Lender, the
maximum rate of interest under applicable law that such Lender may charge the
Borrower. The Maximum Rate shall be calculated in a manner that takes into
account any and all fees, payments, and other charges in respect of the Loan
Documents that constitute interest under applicable law. Each change in any
interest rate provided for herein based upon the Maximum Rate resulting from a
change in the Maximum Rate shall take effect without notice to the Borrower at
the time of such change in the Maximum Rate. For purposes of determining the
Maximum Rate under Texas law, the applicable rate ceiling shall be the weekly
rate ceiling described in, and computed in accordance with, Chapter 303 of the
Texas Finance Code, as amended from time to time.
"Modify" and "Modification" are defined in Section 2.20.1.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Cash Proceeds" means, with respect to any issuance of any equity
of any Person, the aggregate amount of cash received by such Person in
connection with such transaction minus reasonable fees, costs and expenses,
related taxes paid or payable, and repayment of any Indebtedness required to be
repaid as a result of such transaction.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such
9
Rate Management Transaction as of the date of determination (assuming such Rate
Management Transaction were to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.14.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender or any of their Affiliates, the
Administrative Agent, the LC Issuer or any indemnified party arising under the
Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
Synthetic Lease entered into by such Person, (iv) any obligation or liability
arising with respect to any sale or transfer of an interest in trade receivables
of the Borrower or any Subsidiary on a limited recourse basis, or (v) 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 sheets of such Person, but excluding from this clause
(v) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of determination,
the amount obtained by aggregating the present values, determined in the case of
each particular Operating Lease by applying a discount rate (which discount rate
shall equal the discount rate which would be applied under Agreement Accounting
Principles if such Operating Lease were a Capitalized Lease) from the date on
which each fixed lease payment is due under such Operating Lease to such date of
determination, of all fixed lease payments due under all Operating Leases of the
Borrower and its Subsidiaries.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Loans outstanding at such time,
plus (ii) an amount equal to its Pro Rata Share of the LC Obligations at such
time, plus (iii) an amount equal to its Pro Rata Share of the Swing Line
Advances at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the first day of each calendar quarter.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
10
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the schedule attached hereto as Exhibit A.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment and the denominator
of which is the Aggregate Commitment.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter which is a rate swap,
basis swap, forward rate transaction, commodity swap, commodity option, equity
or equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the
11
purpose of purchasing or carrying margin stocks applicable to member banks of
the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.20 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the Aggregate Outstanding
Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Restatement Effective Time" is defined in Section 15.4.
"Revolving Credit Facility" means the revolving credit facility
described in Section 2.1.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Significant Subsidiary" means any Subsidiary which at any time has
total assets with a book or fair market value (determined in accordance with
Agreement Accounting Principles) equal to or greater than 10% of the
Consolidated Tangible Net Worth. Significant Subsidiaries shall in any event at
all times be comprised of Subsidiaries which, when aggregated with the
12
total assets of the Borrower, in the aggregate have total assets with a book or
fair market value (determined in accordance with Agreement Accounting
Principles) equal to or greater than 90% of the total assets of the Borrower and
its Subsidiaries.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 15% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 15% of the
consolidated net sales or of the Consolidated EBITDA of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Super Majority Lenders" means Lenders in the aggregate having at least
66 2/3% of the Aggregate Commitment, or if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the Aggregate
Outstanding Credit Exposure.
"Syndication Agent" means PNC Bank, National Association, in its
capacity as syndication agent, and not in its individual capacity as a Lender.
"Synthetic Lease" means a lease (i) that is treated as an operating
lease under Agreement Accounting Principles and (ii) (a) in respect of which the
leased asset is treated as owned by the lessee for purposes of the Code and/or
(b) that is treated as a loan to the lessee for commercial law or insolvency law
purposes.
"Swing Line Advance" means any Advance under the Swing Line
Subfacility.
"Swing Line Subfacility" means a subfacility under the Revolving Credit
Facility described in Section 2.22.
"Taxes" means any and all present or future governmental taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and all
liabilities with respect to the foregoing, but excluding Excluded Taxes and
Other Taxes.
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"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to (i) make Loans (other than
Swing Line Advances) to the Borrower, (ii) participate in Swing Line Advances,
and (iii) participate in Facility LCs issued upon the request of the Borrower,
provided that, after giving effect to the making of each such Loan (including
the Swing Line Advances) and the issuance of each such Facility LC, such
Lender's Outstanding Credit Exposure shall not exceed its Commitment. Subject to
the terms of this Agreement, the Borrower may borrow, repay and reborrow at any
time prior to the Facility Termination Date. The Commitments to extend credit
hereunder shall expire on the Facility Termination Date. The LC Issuer will
issue Facility LCs hereunder on the terms and conditions set forth in Section
2.20. The Administrative Agent will make Swing Line Advances hereunder on the
terms and conditions set forth in Section 2.22.
2.2. Required Payments; Termination. The Aggregate Outstanding
Credit Exposure and all other unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date.
2.3. Ratable Loans. Each Advance under the Revolving Credit
Facility shall consist of Loans made from the several Lenders ratably according
to their Pro Rata Shares.
14
2.4. Types of Advances. The Advances under the Revolving Credit
Facility may be Floating Rate Advances or Eurodollar Advances, or a combination
thereof, selected by the Borrower in accordance with Sections 2.9 and 2.10.
2.5. Commitment Fee; Reductions in Aggregate Commitment. The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a commitment fee (the "Commitment Fee")
at a per annum rate equal to the Applicable Fee Rate on the average daily
Available Aggregate Commitment from the date hereof to and including the
Facility Termination Date, payable in arrears on each Payment Date hereafter and
on the Facility Termination Date. The Borrower may permanently reduce the
Aggregate Commitment in whole, or in part ratably among the Lenders in integral
multiples of $5,000,000, upon at least five Business Days' written notice to the
Administrative Agent, which notice shall specify the amount of any such
reduction; provided, however, that the amount of the Aggregate Commitment may
not be reduced below the Aggregate Outstanding Credit Exposure. All accrued
commitment fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Credit Extensions hereunder.
2.6. Increase in Commitment.
(i) So long as (a) no Default or Unmatured Default has
occurred and is continuing, and (b) the Borrower has not terminated or
reduced in part any unused portion of the Commitments at any time
pursuant to Section 2.5, the Borrower may, at any time and from time to
time, by notice to the Administrative Agent, request, not more than two
(2) times each calendar year, an increase in the Aggregate Commitment
within the limitations hereafter described, which notice shall set
forth the amount of such increase. In accordance with Section 2.6(iv),
the Aggregate Commitment may be so increased either by having one or
more Purchasers that have been approved by the Borrower and the
Administrative Agent become Lenders and/or by having any one or more of
the then existing Lenders (at their respective election in their sole
discretion) increase the amount of their Commitment ("Increasing
Lenders"), provided that (A) the Commitment of any Purchaser shall not
be less than $10,000,000 and the sum of the Commitments of the
Purchasers and the increases in the Commitments of the Increasing
Lenders shall be in an aggregate amount of not less than $10,000,000
(and, if in excess thereof, in integral multiples of $5,000,000); (B)
the aggregate amount of all the increases in the Aggregate Commitment
pursuant to this Section 2.6 shall not exceed $75,000,000; (C) the
Borrower, each Purchaser and/or each Increasing Lender shall have
executed and delivered to the Administrative Agent a commitment and
acceptance (the "Commitment and Acceptance") substantially in the form
of Exhibit F hereto, and the Administrative Agent shall have accepted
and executed the same, (D) if requested by the Purchaser and/or the
Increasing Lenders, the Borrower shall have executed and delivered to
the Administrative Agent a Note or Notes payable to the order of each
Purchaser and/or each Increasing Lender, each such Note to be in the
amount of such Purchaser's Commitment or such Increasing Lender's
Commitment (as applicable), (E) the Guarantors shall have consented in
writing to the new Commitments or increases in Commitments (as
applicable) and shall have agreed that their Guaranty continue in full
force and effect, and (F) the Borrower, each Purchaser and/or each
Increasing Lender shall otherwise have executed and delivered such
other instruments and documents as the Administrative
15
Agent shall have reasonably requested in connection with such new
Commitment or increase in the Commitment (as applicable). The form and
substance of the documents required under clauses (C) through (F) above
shall be reasonably acceptable to the Administrative Agent. The
Administrative Agent shall provide prior written notice to all of the
Lenders hereunder of the admission of any Purchaser or the increase in
the Commitment of any Increasing Lender hereunder and shall furnish to
each of the Lenders copies of the documents required under clause (C),
(E) and (F) above.
(ii) Upon the effective date of any increase in the
Aggregate Commitment pursuant to the provisions hereof ("Increase
Date"), which Increase Date shall be mutually agreed upon by the
Borrower, each Purchaser, each Increasing Lender and the Administrative
Agent, each Purchaser and/or Increasing Lender shall make a payment to
the Administrative Agent in an amount sufficient, upon the application
of such payments by all Purchasers and Increasing Lenders to the
reduction of the Outstanding Credit Exposures of the Lenders (including
the Increasing Lenders), to cause the Outstanding Credit Exposures of
each Lender to be equal to each Lender's Pro Rata Share of the
Aggregate Commitment as so increased. The Borrower hereby irrevocably
authorizes each Purchaser and/or each Increasing Lender to fund to the
Administrative Agent the payment required to be made pursuant to the
immediately preceding sentence for application to the reduction of the
Outstanding Credit Exposures of the Lenders, and each such payment
shall constitute a Loan hereunder. If, as a result of the repayment of
the Outstanding Credit Exposures provided for in this Section 2.6(ii),
any payment of a Eurodollar Loan occurs on a day which is not the last
day of the applicable Interest Period, the Borrower will pay to the
Administrative Agent for the benefit of any of the Lenders (including
any Increasing Lender to the extent of Eurodollar Loans held by such
Increasing Lender prior to such Increase Date) holding a Eurodollar
Loan any loss or cost incurred by such Lender resulting therefrom in
accordance with Section 3.4. Upon the Increase Date, all Loans
outstanding hereunder (including any Loans made by the Purchasers
and/or Increasing Lenders on the Increase Date) shall be Floating Rate
Loans, subject to the Borrower's right to convert the same to
Eurodollar Loans on or after such date in accordance with the
provisions of Section 2.10.
(iii) Upon the Increase Date and the making of the Loans by
the Purchasers and/or Increasing Lenders in accordance with the
provisions of Section 2.6(ii), each Purchaser and/or each Increasing
Lender shall also be deemed to have irrevocably and unconditionally
purchased and received without recourse or warranty, from the Lenders
immediately prior to the Increase Date, an undivided interest and
participation in any Facility LC and Swing Line Advance, as applicable,
then outstanding, ratably, such that each Lender (including each
Purchaser) holds a participation interest in each such Facility LC and
Swing Line Advance, as applicable, in proportion to such Lender's Pro
Rata Share.
(iv) Upon the notice by the Borrower to the Administrative
Agent pursuant to Section 2.6(i) hereof, each of the then existing
Lenders shall have the right (at its election) to increase its
Commitment by an amount equal to such Lender's Pro Rata Share of the
proposed increase in the Aggregate Commitment. If less than all of the
proposed increase in Aggregate Commitment is elected by the existing
Lenders, then any of the
16
then existing Lenders shall have the right to increase its Commitment
in an amount greater than such Lender's Pro Rata Share of the proposed
increase in the Aggregate Commitment with the Administrative Agent's
approval. In the event the sum of each Purchaser's Commitment and the
increase in each Increasing Lender's Commitment is less than the
requested increase in the Aggregate Commitment, the Borrower may elect
to accept the increase in the Aggregate Commitment to be equal to such
lesser amount. Notwithstanding anything to the contrary contained
herein, the Administrative Agent shall not be liable for any failure to
obtain Increasing Lenders or Purchasers hereunder or for any failure to
increase the Aggregate Commitment by the amount so requested by the
Borrower pursuant to Section 2.6(i).
(v) Nothing contained herein shall constitute or
otherwise be deemed to be a commitment or agreement on the part of any
Lender to increase its Commitment hereunder at any time. No Lender
(except only for itself) shall have the right to decline Borrower's
request pursuant to Section 2.6(i) for an increase in the Aggregate
Commitment.
2.7. Minimum Amount of Each Advance. Each Eurodollar Advance shall
be in the minimum amount of $1,000,000 (and in multiples of $100,000 if in
excess thereof), and each Floating Rate Advance shall be in the minimum amount
of $1,000,000 (and in multiples of $100,000 if in excess thereof); provided,
however, that any Floating Rate Advance may be in the amount of the Available
Aggregate Commitment.
2.8. Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, all outstanding Floating Rate Advances,
or, in a minimum aggregate amount of $1,000,000 or any integral multiple of
$100,000 in excess thereof, any portion of the outstanding Floating Rate
Advances not later than 1:00 p.m. (Dallas time) upon prior written notice to the
Administrative Agent on the date of such prepayment. The Borrower may from time
to time pay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof, any portion of the outstanding
Eurodollar Advances upon three Business Days' prior notice to the Administrative
Agent.
2.9. Method of Selecting Types and Interest Periods for New
Advances. Except with respect to Swing Line Advances, the Borrower shall select
the Type of Advance and, in the case of each Eurodollar Advance, the Interest
Period applicable thereto from time to time. The Borrower shall give the
Administrative Agent irrevocable notice (a "Borrowing Notice") not later than
10:00 a.m. (Dallas time) at least one Business Day before the Borrowing Date of
each Floating Rate Advance and three Business Days before the Borrowing Date for
each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
17
(iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than noon (Dallas time) on each Borrowing Date, each Lender shall make
available its Loan or Loans in funds immediately available in Dallas to the
Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent's aforesaid address.
2.10. Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances pursuant to this
Section 2.10 or are repaid in accordance with Section 2.8. Each Eurodollar
Advance shall continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time such Eurodollar Advance shall
be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.8 or (y) the
Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.7, the Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance (other
than Swing Line Advances) into a Eurodollar Advance. The Borrower shall give the
Administrative Agent irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 10:00 a.m. (Dallas time) at
least three Business Days prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date, which shall be a Business Day, of
such conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is
to be converted or continued, and
(iii) the amount of such Advance which is to be converted
into or continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is automatically converted
from a Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.10,
to but excluding the date it is paid or is converted into a Eurodollar Advance
pursuant to Section 2.10 hereof, at a rate per annum equal to the lesser of (a)
the Maximum Rate, or (b) the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate Advance
will take effect simultaneously with each change in the Alternate Base Rate. If
at any time the Floating Rate shall exceed the Maximum Rate, thereby causing the
interest accruing on an Advance to be limited to the Maximum Rate, then any
subsequent reduction in the Floating Rate for such Advance shall not reduce the
rate of interest on such Advance below the Maximum Rate until the aggregate
amount of interest accrued on such Advance equals the aggregate amount of
interest which would have
18
accrued on such Advance if the Floating Rate had at all times been in effect.
Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined by the Administrative Agent as applicable to such
Eurodollar Advance based upon the Borrower's selections under Sections 2.9 and
2.10 and otherwise in accordance with the terms hereof. No Interest Period may
end after the Facility Termination Date.
2.12. Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.9 or 2.10, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower, declare that no Advance may be made as, converted into
or continued as a Eurodollar Advance. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower, declare that
(i) each Eurodollar Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period (but calculated as if the highest Applicable Margin was then in effect)
plus 2% per annum, (ii) each Floating Rate Advance shall bear interest at a rate
per annum equal to the Floating Rate in effect from time to time (but calculated
as if the highest Applicable Margin was then in effect) plus 2% per annum and
(iii) the LC Fee shall be calculated as if the highest Applicable Margin was
then in effect and increased by 2% per annum, provided that, during the
continuance of a Default under Section 7.6 or 7.7, the interest rates set forth
in clauses (i) and (ii) above and the increase in the LC Fee set forth in clause
(iii) above shall be applicable to all Credit Extensions without any election or
action on the part of the Administrative Agent or any Lender, subject in all
events to the limitations of the Maximum Rate.
2.13. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other Lending Installation
of the Administrative Agent specified in writing by the Administrative Agent to
the Borrower, by noon (local time) on the date when due and shall (except in the
case of Reimbursement Obligations for which the LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder) be
applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type
of funds that the Administrative Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a notice
received by the Administrative Agent from such Lender. The Administrative Agent
is hereby authorized to charge the account of the Borrower maintained with Bank
One for each payment of principal, interest, Reimbursement Obligations and fees
as it becomes due hereunder. Each reference to the Administrative Agent in this
Section 2.13 shall also be deemed to refer, and shall apply equally, to the LC
Issuer, in the case of payments required to be made by the Borrower to the LC
Issuer pursuant to Section 2.20.6.
2.14. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender
19
resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts
in which it will record (a) the amount of each Loan made hereunder, the
Type thereof and the Interest Period with respect thereto, (b) the
amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder, (c) the
original stated amount of each Facility LC and the amount of LC
Obligations outstanding at any time, and (d) the amount of any sum
received by the Administrative Agent hereunder from the Borrower and
each Lender's share thereof.
(iii) The entries maintained in the accounts maintained
pursuant to clauses (i) and (ii) above shall be prima facie evidence of
the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Administrative Agent or any
Lender to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
(iv) Any Lender may request that its Loans under the
Revolving Credit Facility be evidenced by a promissory note in
substantially the form of Exhibit E (a "Note"). In such event, the
Borrower shall prepare, execute and deliver to such Lender a Note
payable to the order of such Lender in a form supplied by the
Administrative Agent. Thereafter, the Loans evidenced by such Note and
interest thereon shall at all times (including after any assignment
pursuant to Section 12.3) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to
Section 12.3, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that
such Loans once again be evidenced as described in clauses (i) and (ii)
above.
2.15. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the Borrower, it being understood
that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically. The
Borrower agrees to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the Administrative Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.16. Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance not including Swing Line Advances shall be
payable on each Payment Date, commencing with the first such date to occur after
the date hereof and at maturity. Interest accrued on each Eurodollar Advance
shall be payable on the last day of its applicable Interest Period, on any date
on which the Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Eurodollar Advance having
an Interest
20
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest, commitment fees and
LC Fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day an Advance is made but not for the
day of any payment on the amount paid if payment is received prior to noon
(local time) at the place of payment. If any payment of principal of or interest
on an Advance shall become due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.17. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice
received by it hereunder. Promptly after notice from the LC Issuer, the
Administrative Agent will notify each Lender of the contents of each request for
issuance of a Facility LC hereunder. The Administrative Agent will notify each
Lender of the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.18. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Administrative Agent and the Borrower in
accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made by it or Facility LCs will be
issued by it and for whose account Loan payments or payments with respect to
Facility LCs are to be made.
2.19. Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (x) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
21
2.20. Facility LCs.
2.20.1. Issuance. Subject to the terms and conditions of this
Agreement, the LC Issuer agrees to keep outstanding on and after the date hereof
the standby letters of credit for the account of the Borrower which were issued
by the LC Issuer and which are further described on Schedule 4 (collectively,
the "Existing Facility LCs"). Each Existing Facility LC shall constitute a
Facility LC for all purposes of this Agreement. For purposes hereof, the
Existing Facility LCs are deemed to be issued on the date hereof. Furthermore,
the LC Issuer hereby agrees, on the terms and conditions set forth in this
Agreement, to issue standby and commercial letters of credit (each, a "Facility
LC") and to renew, extend, increase, decrease or otherwise modify each Facility
LC ("Modify," and each such action a "Modification"), from time to time from and
including the date of this Agreement and prior to the Facility Termination Date
upon the request of the Borrower; provided that immediately after each such
Facility LC is issued or Modified, (i) the aggregate amount of the outstanding
LC Obligations shall not exceed $50,000,000 and (ii) the Aggregate Outstanding
Credit Exposure shall not exceed the Aggregate Commitment. No Facility LC shall
have an expiry date later than the earlier of (a) the fifth Business Day prior
to the Facility Termination Date and (b) one year after its issuance (or, if
such Facility LC shall have been renewed, one year after its renewal).
2.20.2. Participations. Upon the issuance or Modification by the LC
Issuer of a Facility LC in accordance with this Section 2.20, the LC Issuer
shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to
its Pro Rata Share.
2.20.3. Notice. Subject to Section 2.20.1, the Borrower shall give the
LC Issuer notice prior to 10:00 a.m. (Dallas time) at least five Business Days
prior to the proposed date of issuance or Modification of each Facility LC,
specifying the beneficiary, the proposed date of issuance (or Modification) and
the expiry date of such Facility LC, and describing the proposed terms of such
Facility LC and the nature of the transactions proposed to be supported thereby.
Upon receipt of such notice, the LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Lender, of the contents thereof and of the amount of such Lender's participation
in such proposed Facility LC. The issuance or Modification by the LC Issuer of
any Facility LC shall, in addition to the conditions precedent set forth in
Article IV (the satisfaction of which the LC Issuer shall have no duty to
ascertain), be subject to the conditions precedent that such Facility LC shall
be reasonably satisfactory to the LC Issuer and that the Borrower shall have
executed and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the LC Issuer shall have
reasonably requested (each, a "Facility LC Application"). In the event of any
conflict between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.
22
2.20.4. LC Fees. The Borrower shall pay to the Administrative Agent,
for the account of the Lenders ratably in accordance with their respective Pro
Rata Shares, (i) with respect to each standby Facility LC, a letter of credit
fee at a per annum rate equal to the Applicable Margin for Eurodollar Loans in
effect from time to time on the average daily undrawn stated amount under such
standby Facility LC, such fee to be payable in arrears on each Payment Date, and
(ii) with respect to each commercial Facility LC, a one-time letter of credit
fee in an amount equal to 0.125% of the initial stated amount (or, with respect
to a Modification of any such commercial Facility LC which increases the stated
amount thereof, such increase in the stated amount) thereof, such fee to be
payable on the date of such issuance or increase (each such fee described in
this sentence an "LC Fee"). The Borrower shall also pay to the LC Issuer for its
own account (x) at the time of issuance of each Facility LC, a fronting fee in
an amount equal to 0.125% of the initial stated amount (or with respect to a
Modification of any such standby Facility LC which increases the stated amount
thereof, such increase in the stated amount), and (y) documentary and processing
charges in connection with the issuance or Modification of and draws under
Facility LCs in accordance with the LC Issuer's standard schedule for such
charges as in effect from time to time.
2.20.5. Administration; Reimbursement by Lenders. Upon receipt from
the beneficiary of any Facility LC of any demand for payment under such Facility
LC, the LC Issuer shall notify the Administrative Agent and the Administrative
Agent shall promptly notify the Borrower and each other Lender as to the amount
to be paid by the LC Issuer as a result of such demand and the proposed payment
date (the "LC Payment Date"). The responsibility of the LC Issuer to the
Borrower and each Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in
connection with such presentment shall be in conformity in all material respects
with such Facility LC. The LC Issuer shall endeavor to exercise the same care in
the issuance and administration of the Facility LCs as it does with respect to
letters of credit in which no participations are granted, it being understood
that in the absence of any gross negligence or willful misconduct by the LC
Issuer, each Lender shall be unconditionally and irrevocably liable without
regard to the occurrence of any Default or any condition precedent whatsoever,
to reimburse the LC Issuer on demand for (i) such Lender's Pro Rata Share of the
amount of each payment made by the LC Issuer under each Facility LC to the
extent such amount is not reimbursed by the Borrower pursuant to Section 2.20.6
below, plus (ii) interest on the foregoing amount to be reimbursed by such
Lender, for each day from the date of the LC Issuer's demand for such
reimbursement (or, if such demand is made after 11:00 a.m. (Dallas time) on such
date, from the next succeeding Business Day) to the date on which such Lender
pays the amount to be reimbursed by it, at a rate of interest per annum equal to
the Federal Funds Effective Rate for the first three days and, thereafter, at a
rate of interest equal to the rate applicable to Floating Rate Advances.
2.20.6. Reimbursement by Borrower. The Borrower shall be irrevocably
and unconditionally obligated to reimburse the LC Issuer on or before the
applicable LC Payment Date for any amounts to be paid by the LC Issuer upon any
drawing under any Facility LC, without presentment, demand, protest or other
formalities of any kind; provided that neither the Borrower nor any Lender shall
hereby be precluded from
23
asserting any claim for direct (but not consequential) damages suffered by the
Borrower or such Lender to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC issued by it complied with the terms of
such Facility LC or (ii) the LC Issuer's failure to pay under any Facility LC
issued by it after the presentation to it of a request strictly complying with
the terms and conditions of such Facility LC. All such amounts paid by the LC
Issuer and remaining unpaid by the Borrower shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on or before
the applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls after such LC Payment
Date. The LC Issuer will pay to each Lender ratably in accordance with its Pro
Rata Share all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of any
Facility LC issued by the LC Issuer, but only to the extent such Lender has made
payment to the LC Issuer in respect of such Facility LC pursuant to Section
2.20.5. Subject to the terms and conditions of this Agreement (including without
limitation the submission of a Borrowing Notice in compliance with Section 2.9
and the satisfaction of the applicable conditions precedent set forth in Article
IV), the Borrower may request an Advance hereunder for the purpose of satisfying
any Reimbursement Obligation.
2.20.7. Obligations Absolute. The Borrower's obligations under this
Section 2.20 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be responsible for, and
the Borrower's Reimbursement Obligation in respect of any Facility LC shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Facility LC. The Borrower
agrees that any action taken or omitted by the LC Issuer or any Lender under or
in connection with each Facility LC and the related drafts and documents, if
done without gross negligence, bad faith or willful misconduct, shall be binding
upon the Borrower and shall not put the LC Issuer or any Lender under any
liability to the Borrower. Nothing in this Section 2.20.7 is intended to limit
the right of the Borrower to make a claim against the LC Issuer for damages as
contemplated by the proviso to the first sentence of Section 2.20.6.
2.20.8. Actions of LC Issuer. The LC Issuer shall be entitled to rely,
and shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype
24
message, statement, order or other document reasonably believed by it
to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the LC
Issuer. The LC Issuer shall be fully justified in failing or refusing
to take any action under this Agreement unless it shall first have
received such advice or concurrence of the Required Lenders as it
reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or
continuing to take any such action. Notwithstanding any other provision
of this Section 2.20, the LC Issuer shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be
binding upon the Lenders and any future holders of a participation in
any Facility LC.
2.20.9. Indemnification. The Borrower hereby agrees to
indemnify and hold harmless each Lender, the LC Issuer and the
Administrative Agent, and their respective directors, officers, agents
and employees from and against any and all claims and damages, losses,
liabilities, costs or expenses (including reasonable attorneys' fees
and disbursements) which such Lender, the LC Issuer or the
Administrative Agent may incur (or which may be claimed against such
Lender, the LC Issuer or the Administrative Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any
Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the LC Issuer may incur by reason
of or in connection with (i) the failure of any other Lender to fulfill
or comply with its obligations to the LC Issuer hereunder (but nothing
herein contained shall affect any rights the Borrower may have against
any defaulting Lender) or (ii) by reason of or on account of the LC
Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of
law of the named Beneficiary, but which Facility LC does not require
that any drawing by any such successor Beneficiary be accompanied by a
copy of a legal document, satisfactory to the LC Issuer, evidencing the
appointment of such successor Beneficiary; provided that the Borrower
shall not be required to indemnify any Lender, the LC Issuer or the
Administrative Agent or any director, officer, agent or employee
thereof for any claims, damages, losses, liabilities, costs or expenses
to the extent, but only to the extent, caused by (x) the willful
misconduct, bad faith or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC complied
with the terms of such Facility LC or (y) the LC Issuer's failure to
pay under any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC.
Nothing in this Section 2.20.9 is intended to limit the obligations of
the Borrower under any other provision of this Agreement.
2.20.10. Lenders' Indemnification. Each Lender shall, ratably
in accordance with its Pro Rata Share, indemnify the LC Issuer, its
Affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from
such
25
indemnitees' gross negligence or willful misconduct or the LC Issuer's
failure to pay under any Facility LC after the presentation to it of a
request strictly complying with the terms and conditions of the
Facility LC) that such indemnitees may suffer or incur in connection
with this Section 2.20 or any action taken or omitted by such
indemnitees hereunder.
2.20.11. Facility LC Collateral Account. The Borrower agrees
that it will, after the occurrence of a Default and upon the request of
the Administrative Agent or the Required Lenders and until the final
expiration date of any Facility LC and thereafter as long as any amount
is payable to the LC Issuer or the Lenders in respect of any Facility
LC, maintain a special collateral account pursuant to arrangements
satisfactory to the Administrative Agent (the "Facility LC Collateral
Account") at the Administrative Agent's office at the address specified
pursuant to Article XIII, in the name of the Borrower but under the
sole dominion and control of the Administrative Agent, for the benefit
of the Lenders and in which the Borrower shall have no interest other
than as set forth in Section 8.1. The Borrower hereby pledges, assigns
and grants to the Administrative Agent, on behalf of and for the
ratable benefit of the Lenders and the LC Issuer, a security interest
in all of the Borrower's right, title and interest in and to all funds
which may from time to time be on deposit in the Facility LC Collateral
Account to secure the prompt and complete payment and performance of
the Obligations. The Administrative Agent will invest any funds on
deposit from time to time in the Facility LC Collateral Account in
certificates of deposit of Bank One having a maturity not exceeding 30
days. Nothing in this Section 2.20.11 shall either obligate the
Administrative Agent to require the Borrower to deposit any funds in
the Facility LC Collateral Account or limit the right of the
Administrative Agent to release any funds held in the Facility LC
Collateral Account in each case other than as required by Section 8.1.
2.20.12. Rights as a Lender. In its capacity as a Lender, the
LC Issuer shall have the same rights and obligations as any other
Lender.
2.21. Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrower may elect, if such amounts
continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrower
and the Administrative Agent shall agree, as of such date, to purchase for cash
the Credit Extensions and other Obligations due to the Affected Lender pursuant
to an assignment substantially in the form of Exhibit C and to become a Lender
for all purposes under this Agreement and to assume all obligations of the
Affected Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and (ii) the Borrower
shall pay to such Affected Lender in same day funds on the day of such
replacement (A) all interest, fees and other amounts then accrued but unpaid to
such Affected Lender by the Borrower hereunder to and including the date of
termination, including
26
without limitation payments due to such Affected Lender under Sections 3.1, 3.2
and 3.5, and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 3.4 had the
Credit Extensions of such Affected Lender been prepaid on such date rather than
sold to the replacement Lender.
2.22. Swing Line Subfacility.
2.22.1. Conditions. For the convenience of the parties, the
Administrative Agent, solely for its own account, may make any
requested Advance under the Revolving Credit Facility (which request
must be made before 1:00 p.m. (Dallas time) on the Business Day the
Advance is to be made and may be telephonic if confirmed in writing
within two Business Days) in the minimum amount of $100,000 (or a
greater integral multiple of $100,000) directly to the Borrower as a
Swing Line Advance without requiring each other Lender to fund its Pro
Rata Share thereof on such Business Day. Swing Line Advances are
subject to the following conditions:
(i) Each Swing Line Advance must occur on a Business Day
before the Facility Termination Date;
(ii) The aggregate principal outstanding of all Swing Line
Advances may not exceed $15,000,000; the aggregate principal
outstanding of all Swing Line Advances, all other Advances under the
Revolving Credit Facility, and all LC Obligations may not exceed the
Aggregate Commitment under the Revolving Credit Facility; and no Swing
Line Advance shall be made which would cause the aggregate principal
outstanding of all Loans (including Swing Line Advances) made by the
Administrative Agent under the Revolving Credit Facility to exceed the
Administrative Agent's Commitment under the Revolving Credit Facility;
(iii) Each Swing Line Advance, along with accrued but
unpaid interest on such Swing Line Advance, shall be paid in full by
the Borrower on the Business Day immediately succeeding the date of
such Swing Line Advance by the funding of an Advance under the
Revolving Credit Facility and in any event on the Facility Termination
Date; and
(iv) Each Swing Line Advance shall be a Floating Rate
Advance.
2.22.2. Lenders' Funding of Swing Line Advances as Advances
Under Revolving Credit Facility. The Administrative Agent shall give to
the Lenders notice of each Swing Line Advance not later than 3:00 p.m.
(Dallas time) on the date of such Swing Line Advance, which notice
shall, on behalf of the Borrower (and for such purpose the Borrower
hereby irrevocably directs the Administrative Agent to act on its
behalf), request each Lender to make, and each Lender hereby agrees to
make, an Advance in an amount equal to such Lender's Pro Rata Share of
the aggregate amount of the Swing Line Advances (the "Refunded Swing
Line Advances") outstanding on the date of such notice, to repay the
Administrative Agent. Each Lender shall make the amount of such Advance
available to the Administrative Agent in immediately available funds,
not later than noon (Dallas time) one Business Day after the date of
such notice. The proceeds of such
27
Advance shall be immediately made available to the Administrative Agent
for application by the Administrative Agent to the repayment of the
Refunded Swing Line Advances. The Borrower irrevocably authorizes the
Administrative Agent to charge the Borrower's accounts with the
Administrative Agent in order to immediately pay the amount of such
Refunded Swing Line Advances to the extent amounts received from the
Lenders are not sufficient to repay in full such Refunded Swing Line
Advances (with notice of such charge being provided to the Borrower,
provided that the failure to give such notice shall not affect the
validity of such charge). All such Refunded Swing Line Advances shall
be subject to all provisions of this Agreement concerning Advances
under the Revolving Credit Facility. If prior to the time an Advance
would otherwise have been made pursuant to this section, Advances may
not be made as contemplated by this section, each Lender shall
irrevocably and unconditionally purchase and receive from the
Administrative Agent a ratable participation in such Swing Line Advance
and shall make available to the Administrative Agent in immediately
available funds its Pro Rata Share of such unpaid amount, together with
interest from the date when its payment was due to, but not including,
the date of payment. If a Lender does not promptly pay its amount upon
the Administrative Agent's demand, and until such Lender makes the
required payment, the Administrative Agent is deemed to continue to
have outstanding a Swing Line Advance in the amount of such Lender's
unpaid obligation. The Borrower shall make each payment of all or any
part of any Swing Line Advance to the Administrative Agent for the
ratable benefit of the Administrative Agent and those Lenders who have
funded their participations in Swing Line Advances under this Section
(but all interest accruing on Swing Line Advances before the funding
date of any Advance under the Revolving Credit Facility to repay such
Swing Line Advance or any participation is payable solely to the
Administrative Agent for its own account).
2.23. Limitation of Interest. The Borrower, the Administrative Agent
and the Lenders intend to strictly comply with all applicable laws, including
applicable usury laws. Accordingly, the provisions of this Section 2.23 shall
govern and control over every other provision of this Agreement or any other
Loan Document which conflicts or is inconsistent with this Section 2.23, even if
such provision declares that it controls. As used in this Section 2.23, the term
"interest" includes the aggregate of all charges, fees, benefits or other
compensation which constitute interest under applicable law, provided that, to
the maximum extent permitted by applicable law, (a) any non-principal payment
shall be characterized as an expense or as compensation for something other than
the use, forbearance or detention of money and not as interest, and (b) all
interest at any time contracted for, reserved, charged or received shall be
amortized, prorated, allocated and spread, in equal parts during the full term
of the Obligations. In no event shall the Borrower or any other Person be
obligated to pay, or any Lender have any right or privilege to reserve, receive
or retain, (a) any interest in excess of the maximum amount of nonusurious
interest permitted under the laws of the State of Texas or the applicable laws
(if any) of the United States or of any other applicable state, or (b) total
interest in excess of the amount which such Lender could lawfully have
contracted for, reserved, received, retained or charged had the interest been
calculated for the full term of the Obligations at the Maximum Rate. On each
day, if any, that the interest rate (the "Stated Rate") called for under this
Agreement or any other Loan Document exceeds the Maximum Rate, the rate at which
interest shall accrue shall automatically be fixed by operation of this sentence
at the Maximum Rate for that day, and shall remain fixed at the Maximum Rate for
each day thereafter until the total amount of interest accrued equals the
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total amount of interest which would have accrued if there were no such ceiling
rate as is imposed by this sentence. Thereafter, interest shall accrue at the
Stated Rate unless and until the Stated Rate again exceeds the Maximum Rate when
the provisions of the immediately preceding sentence shall again automatically
operate to limit the interest accrual rate. The daily interest rates to be used
in calculating interest at the Maximum Rate shall be determined by dividing the
applicable Maximum Rate per annum by the number of days in the calendar year for
which such calculation is being made. None of the terms and provisions contained
in this Agreement or in any other Loan Document which directly or indirectly
relate to interest shall ever be construed without reference to this Section
2.23, or be construed to create a contract to pay for the use, forbearance or
detention of money at an interest rate in excess of the Maximum Rate. If the
term of any Obligation is shortened by reason of acceleration of maturity as a
result of any Default or by any other cause, or by reason of any required or
permitted prepayment, and if for that (or any other) reason any Lender at any
time, including but not limited to, the stated maturity, is owed or receives
(and/or has received) interest in excess of interest calculated at the Maximum
Rate, then and in any such event all of any such excess interest shall be
canceled automatically as of the date of such acceleration, prepayment or other
event which produces the excess, and, if such excess interest has been paid to
such Lender, it shall be credited pro tanto against the then-outstanding
principal balance of the Borrower's obligations to such Lender, effective as of
the date or dates when the event occurs which causes it to be excess interest,
until such excess is exhausted or all of such principal has been fully paid and
satisfied, whichever occurs first, and any remaining balance of such excess
shall be promptly refunded to its payor. Chapter 346 of the Texas Finance Code
(which regulates certain revolving credit accounts (formerly Tex. Rev. Civ.
Stat. Xxx. Art. 0000, Xx. 15)) shall not apply to this Agreement or to any Loan,
nor shall this Agreement or any Loan be governed by or be subject to the
provisions of such Chapter 346 in any manner whatsoever.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation or the LC Issuer with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) subjects any Lender or any applicable Lending
Installation or the LC Issuer to any Taxes, or changes the basis of
taxation of payments (other than with respect to Excluded Taxes) to any
Lender or the LC Issuer in respect of its Eurodollar Loans, Facility
LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending
29
Installation or the LC Issuer (other than reserves and assessments
taken into account in determining the interest rate applicable to
Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
or the LC Issuer of making, funding or maintaining its Eurodollar
Loans, or of issuing or participating in Facility LCs, or reduces any
amount receivable by any Lender or any applicable Lending Installation
or the LC Issuer in connection with its Eurodollar Loans, Facility LCs
or participations therein, or requires any Lender or any applicable
Lending Installation or the LC Issuer to make any payment calculated by
reference to the amount of Eurodollar Loans, Facility LCs or
participations therein held or interest or LC Fees received by it, by
an amount deemed material by such Lender or the LC Issuer as the case
may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Commitment, Facility LCs or participations therein, then,
within 15 days of demand by such Lender or the LC Issuer, as the case may be,
the Borrower shall pay such Lender or the LC Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the LC Issuer, as
the case may be, for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender or the LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer, or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or the LC Issuer determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines, or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
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3.3. Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Administrative Agent shall suspend the availability of Eurodollar Advances
and require any affected Eurodollar Advances to be repaid or converted to
Floating Rate Advances, subject to the payment of any funding indemnification
amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made on the date specified by the Borrower for any
reason other than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Advance.
3.5. Taxes.
(i) All payments by the Borrower to or for the account of
any Lender, the LC Issuer or the Administrative Agent hereunder or
under any Note or Facility LC Application shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender, the LC Issuer or the Administrative
Agent, (a) 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 3.5) such Lender, the LC
Issuer or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority
in accordance with applicable law and (d) the Borrower shall furnish to
the Administrative Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or under any Note or Facility LC Application or from the
execution or delivery of, or otherwise with respect to, this Agreement
or any Note or Facility LC Application ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the
Administrative Agent, the LC Issuer and each Lender for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Administrative Agent, the LC Issuer or such Lender and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the
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date the Administrative Agent, the LC Issuer or such Lender makes
demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after the
date of this Agreement, (i) deliver to the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to the Borrower and the Administrative
Agent a United States Internal Revenue Form W-8 or W-9, as the case may
be, and certify that it is entitled to an exemption from United States
backup withholding tax. Each Non-U.S. Lender further undertakes to
deliver to the Borrower and the Administrative Agent (x) renewals or
additional copies of such form (or any successor form) on or before the
date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments thereto as may be
reasonably requested by the Borrower or the Administrative Agent. All
forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such
Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to
clause (iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by
the United States; provided that, should a Non-U.S. Lender which is
otherwise exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its failure to deliver a form
required under clause (iv) above, the Borrower shall take such steps as
such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty 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 as will permit such payments to be made without
withholding or at a reduced rate.
32
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered
or properly completed, because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such
Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax,
withholding therefor, or otherwise, including penalties and interest,
and including taxes imposed by any jurisdiction on amounts payable to
the Administrative Agent under this subsection, together with all costs
and expenses related thereto (including attorneys fees and time charges
of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the Lenders
under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of Eurodollar Advances under Section 3.3, so long as such
designation is not, in the reasonable judgment of such Lender, disadvantageous
to such Lender. Each Lender shall deliver a written statement of such Lender to
the Borrower (with a copy to the Administrative Agent) as to the amount due, if
any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the absence
of manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Eurodollar Rate applicable to such Loan, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable within 15 days after receipt by the
Borrower of such written statement. The obligations of the Borrower under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be required to make the
initial Credit Extension hereunder unless (a) the Borrower has furnished to the
Administrative Agent with sufficient copies for the Lenders or (b) the following
shall have occurred, as applicable:
(i) A counterpart of this Agreement duly executed and
delivered by a duly authorized officer of the Borrower and acknowledged
by each Guarantor.
(ii) A bring down certificate of the Secretary or
Assistant Secretary of the Borrower certifying that the articles or
certificate of incorporation and the bylaws of the Borrower have not
been modified in any respect from the copies previously provided to
33
the Administrative Agent and the Lenders in connection with the
Existing Credit Agreement and copies of the Borrower's Board of
Directors' resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the Borrower
is a party.
(iii) A bring down certificate of the Secretary or
assistant Secretary of each Guarantor certifying that the articles or
certificate of incorporation and the bylaws of such Guarantor have not
been modified in any respect from the copies previously provided to the
Administrative Agent and the Lenders in connection with the Existing
Credit Agreement and copies of such Guarantor's Board of Directors'
resolutions and of resolutions or actions of any other body authorizing
the execution of the Loan Documents to which such Guarantor is a party.
(iv) Copies of certificates of existence and good standing
of the Borrower and each Guarantor, each (a) dated not more than 15
days prior to the date hereof and (b) certified by the appropriate
governmental officer in its jurisdiction of organization.
(v) An incumbency certificate, executed by the Secretary
or Assistant Secretary of the Borrower, which shall identify by name
and title and bear the signatures of the Authorized Officers and any
other officers of the Borrower authorized to sign the Loan Documents to
which the Borrower is a party, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(vi) An incumbency certificate, executed by the Secretary
or Assistant Secretary of each Guarantor, which shall identify by name
and title and bear the signatures of the Authorized Officers and any
other officers of such Guarantor authorized to sign the Loan Documents
to which such Guarantor is a party, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until
informed of any change in writing by such Guarantor.
(vii) Any Notes requested by a Lender pursuant to Section
2.14 payable to the order of each such requesting Lender.
(viii) A Guaranty duly executed by the Guarantors.
(ix) Payment of accrued and unpaid interest on the
Obligations due and payable to March 25, 2003.
(x) A written legal opinion of the Borrower's and the
Guarantors' counsel, addressed to the Lenders in form and substance
satisfactory to the Administrative Agent.
(xi) Written money transfer instructions, in substantially
the form of Exhibit D, addressed to the Administrative Agent and signed
by an Authorized Officer, together with such other related money
transfer authorizations as the Administrative Agent may have reasonably
requested.
34
(xii) A certificate, signed by the chief financial officer
of the Borrower, stating that on the initial Borrowing Date no Default
or Unmatured Default has occurred and is continuing.
(xiii) An insurance certificate in form and substance
reasonably satisfactory to the Administrative Agent.
(xiv) The Borrower shall have paid to the Administrative
Agent, for the account of the Administrative Agent, the Arranger and
the Lenders, the fees set forth herein and in any letter agreements,
including but not limited to that certain Fee Letter dated February 11,
2003 executed by and among the Borrower, the Lead Arranger and the
Administrative Agent.
(xv) Such other documents as the Administrative Agent, any
Lender or their counsel may have reasonably requested.
4.2. Each Credit Extension. The Lenders shall not be required to
make any Credit Extension unless on the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in
Article V are true and correct in all material respects as of such
Credit Extension Date except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case
such representation or warranty shall have been true and correct in all
material respects on and as of such earlier date.
(iii) All legal matters incident to the making of such
Credit Extension shall be reasonably satisfactory to the Lenders and
their counsel.
(iv) If the Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application shall have
been executed and delivered to the LC Issuer.
Each Borrowing Notice or request for issuance of a Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied. Any Lender may require a duly completed compliance
certificate in substantially the form of Exhibit B as a condition to making a
Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Existence and Standing. Each of the Borrower and its
Subsidiaries is a corporation, partnership (in the case of Subsidiaries only) or
limited liability company (in the
35
case of Subsidiaries only) duly and properly incorporated or organized, as the
case may be, validly existing and (to the extent such concept applies to such
entity) in good standing under the laws of its jurisdiction of incorporation or
organization, is duly qualified to transact business and is in good standing in
each jurisdiction in which its business is conducted except where the failure to
be so qualified could not reasonably be expected to have a Material Adverse
Effect.
5.2. Authorization and Validity. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan Documents to
which it is a party and to perform its obligations thereunder. The execution and
delivery by the Borrower of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which the Borrower is a party
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or general principles of equity.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents to which it is a party, nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its
Subsidiaries other than violations which could not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect or (ii) the
Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the
execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any of the Loan
Documents except for such orders, consents, adjudications, approvals, licenses,
authorizations or validations of, or filings, recordings or registrations with,
or exemptions by or other actions the failure to obtain or make could not
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect.
5.4. Financial Statements. The December 31, 2002 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
36
5.5. Material Adverse Change. Since December 31, 2002 there has
been no change in the business, Property, financial condition or results of
operations of the Borrower and its Subsidiaries taken as a whole which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
and as to which no Lien exists and except where failure to file or pay could not
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect. With respect to all United States federal tax returns, the
latest period for which the Borrower and its Subsidiaries have been examined or
for which the applicable statute of limitations has expired is the fiscal year
ended March 31, 1999. No tax Liens have been filed and no claims are being
asserted with respect to any such taxes which individually or in the aggregate
have a Material Adverse Effect. The charges, accruals and reserves on the books
of the Borrower and its Subsidiaries in respect of any taxes or other
governmental charges are adequate. If any of its Subsidiaries is a limited
liability company, each such limited liability company qualifies for partnership
tax treatment under United States federal tax law.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Credit Extensions. Other than any
liabilities which could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect, the Borrower has no material
contingent obligations not provided for or disclosed in the financial statements
referred to in Section 5.4.
5.8. Subsidiaries. Schedule 2 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. Neither the Borrower nor any other member of the
Controlled Group has incurred in the aggregate Unfunded Liabilities of all
Single Employer Plans in an amount that could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in the aggregate in an amount that
could reasonably be expected to have a Material Adverse Effect. Each Plan
complies in all material respects with all applicable requirements of law and
regulations, and no Reportable Event has occurred with respect to any Plan that
could reasonably be expected to have a Material Adverse Effect.
37
5.10. Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Administrative Agent
or to any Lender in connection with the negotiation of, or compliance with, the
Loan Documents contained any misstatement of material fact or omitted to state a
material fact necessary to make the statements contained therein not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12. Material Agreements. The Borrower is not a party to any
agreement or instrument or subject to any charter or other corporate restriction
which could reasonably be expected to have a Material Adverse Effect. Neither
the Borrower nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could reasonably be expected
to have a Material Adverse Effect or (ii) any agreement or instrument evidencing
or governing Indebtedness which aggregates in excess of $2,500,000.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 3, on
the date of this Agreement, the Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.12, to all of
the Property and assets reflected in the Borrower's most recent consolidated
financial statements provided to the Administrative Agent as owned by the
Borrower and its Subsidiaries.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Credit Extensions hereunder gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or
38
substance into the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor
any Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Subordinated Indebtedness. The Obligations constitute senior
indebtedness which is entitled to the benefits of the subordination provisions
of all outstanding Subordinated Indebtedness.
5.20. Post-Retirement Benefits. The present value of the expected
cost of post-retirement medical and insurance benefits payable by the Borrower
and its Subsidiaries to its employees and former employees, as estimated by the
Borrower in accordance with procedures and assumptions reasonably acceptable to
the Required Lenders, does not exceed $2,500,000.
5.21. Solvency.
(i) Immediately after the consummation of the
transactions to occur on the date hereof and immediately following the
making of each Credit Extension, if any, made on the date hereof and
after giving effect to the application of the proceeds of such Credit
Extension, (a) the fair value of the assets of the Borrower and its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed
the debts and liabilities, subordinated, contingent or otherwise, of
the Borrower and its Subsidiaries on a consolidated basis; (b) the
present fair saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount
that will be required to pay the probable liability of the Borrower and
its Subsidiaries on a consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts
and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) the Borrower and
its Subsidiaries on a consolidated basis will not have unreasonably
small capital with which to conduct the businesses in which they are
engaged as such businesses are now conducted and are proposed to be
conducted after the date hereof.
(ii) The Borrower does not intend to, or to permit any of
its Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to
be received by it or any such Subsidiary and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
39
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with Agreement Accounting Principles, and furnish to the Lenders:
(i) Within 120 days after the close of each of its fiscal
years, an unqualified audit report certified by independent certified
public accountants acceptable to the Lenders, prepared in accordance
with Agreement Accounting Principles on a consolidated basis for itself
and its Subsidiaries, including balance sheets as of the end of such
period, related profit and loss and reconciliation of surplus
statements, and a statement of cash flows, accompanied by any
management letter prepared by said accountants.
(ii) Within 60 days after the close of each of the
quarterly periods of each of its fiscal years (other than the last
quarterly period of each fiscal year), for itself and its Subsidiaries,
consolidated unaudited balance sheets as at the close of each such
period and consolidated profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, all certified
by its chief financial officer.
(iii) As soon as available, but in any event within 15 days
before the beginning of each fiscal year of the Borrower, a copy of the
plan and forecast (including a projected consolidated balance sheet,
income statement and funds flow statement) of the Borrower for the
forthcoming fiscal year.
(iv) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer showing the
calculations necessary to determine compliance with this Agreement and
stating that no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status thereof.
(v) Within 270 days after the close of each fiscal year,
a statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA.
(vi) As soon as possible and in any event within 10 days
after the Borrower knows that any Reportable Event that could
reasonably be expected to have a Material Adverse Effect has occurred
with respect to any Plan, a statement, signed by the chief financial
officer of the Borrower, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto.
40
(vii) As soon as possible and in any event within 10 days
after receipt by the Borrower, a copy of (a) any notice or claim to the
effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a Material
Adverse Effect.
(viii) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial statements,
reports and proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission.
(x) Such other information (including non-financial
information) as the Administrative Agent or any Lender may from time to
time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions for general corporate
purposes, and to refinance existing indebtedness of the Borrower and its
Subsidiaries. The Borrower will not, nor will it permit any Subsidiary to, use
any of the proceeds of the Advances for a purpose which violates any applicable
law, including the provisions of Regulation U.
6.3. Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice (which notice shall in any event be given
within three Business Days) in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except (i) those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside in accordance with Agreement Accounting Principles or (ii) where
failure to file or pay could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect. At any time that any Subsidiary of
the Borrower is organized as a limited liability company, each such limited
liability company will qualify for partnership tax treatment under United States
federal tax law.
6.5. Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies insurance
on all their Property in such amounts and covering such risks as is consistent
with sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
41
6.6. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws other than such noncompliance which
could not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
6.7. Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times except
where such failure could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
6.8. Books and Records. The Borrower will, and will cause each
Subsidiary to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities to the extent necessary to permit financial statements
to be prepared in conformity with Agreement Accounting Principles and in all
material respects with all requirements of law.
6.9. Inspection. The Borrower will, and will cause each Subsidiary
to, permit the Administrative Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and financial
records of the Borrower and each Subsidiary, to examine and make copies of the
books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the Borrower
and each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Administrative Agent or
any Lender may designate.
6.10. Merger. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except that
when no Default exists or will result therefrom, (i) a Subsidiary may merge into
the Borrower or a Subsidiary (subject to compliance with Section 6.19), (ii) in
connection with Acquisitions the Borrower and its Subsidiaries may enter into
other mergers or consolidations as long as (a) the Borrower is the survivor of
such merger or consolidation or if the Borrower is not a party thereto then a
Subsidiary is the survivor, and (b) the Borrower is in compliance with Section
6.23 and (iii) the Borrower may merge Subsidiaries with or into any other Person
in connection with dispositions of Property permitted pursuant to Section
6.11(ii).
6.11. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of
business.
(ii) Leases, sales or other dispositions of its Property
that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other than
inventory in the ordinary course of business) as permitted by this
Section during the twelve-month period ending with the month in which
any such lease, sale or
42
other disposition occurs, do not constitute a Substantial Portion of
the Property of the Borrower and its Subsidiaries.
(iii) Any transfer of an interest in accounts or notes
receivable on a limited recourse basis, provided that the amount of any
related financing does not exceed $100,000,000.00 at any one time
outstanding.
6.12. Liens. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges
or levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with Agreement Accounting Principles
shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', landlords',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of obligations not
more than 60 days past due or which are being contested in good faith
by appropriate proceedings and for which adequate reserves shall have
been set aside on its books.
(iii) Liens arising out of pledges or deposits (a) under
worker's compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar legislation
or (b) made in the ordinary course of business to secure the
performance of bids, tenders, insurance or other contracts (other than
for the repayment of borrowed money) or to secure statutory
obligations, surety or appeal bonds or indemnity, performance or other
similar bonds so long as such amounts secured by Liens described in
this clause (b) shall not exceed at any time an aggregate amount equal
to $5,000,000.
(iv) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Borrower
or its Subsidiaries.
(v) Liens existing on the date hereof and described in
Schedule 3.
(vi) Liens incurred in connection with any transfer of an
interest in accounts or notes receivable which is permitted pursuant to
Section 6.11(iii), and which Liens attach solely to the trade
receivables sold or transferred (or proceeds thereof).
(vii) Liens securing Indebtedness which attach solely to
the assets purchased with the proceeds of such Indebtedness.
43
6.13. Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except (i) in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction, (ii) transactions among the Borrower and its
Subsidiaries and (iii) immaterial transactions existing as of the date hereof.
6.14. Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. The Borrower will not, nor will it permit any Subsidiary to, enter
into or suffer to exist any (i) Sale and Leaseback Transaction or (ii) any other
transaction pursuant to which it incurs or has incurred Off-Balance Sheet
Liabilities, except for Rate Management Obligations having a Net Xxxx-to-Market
Exposure not exceeding $15,000,000 or a transaction permitted under Section
6.11(iii).
6.15. Letters of Credit. The Borrower will not, nor will it permit
any Subsidiary to, apply for or become liable upon or in respect of any Letter
of Credit other than Facility LCs.
6.16. Financial Covenants.
6.16.1. Interest Coverage Ratio. Beginning with the fiscal
quarter ending March 31, 2003, the Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters for the then
most-recently ended four fiscal quarters, of (i) Consolidated EBIT to
(ii) Consolidated Interest Expense to be less than 2.50 to 1.00.
6.16.2. Leverage Ratio. Beginning with the fiscal quarter
ending on March 31, 2003, the Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters, of (i)
Consolidated Indebtedness to (ii) Consolidated EBITDA for the then
most-recently ended four fiscal quarters to be greater than 3.00 to
1.00.
6.16.3. Minimum Tangible Net Worth. As of December 31, 2002,
the Borrower will at all times maintain Consolidated Tangible Net Worth
of not less than 85% of $430,044,000 and for the last day of each
fiscal quarter thereafter, not less than the sum of (i) the minimum
Consolidated Tangible Net Worth required for the prior fiscal quarter,
plus (ii) 50% of the Consolidated Net Income (not less than $0.00) for
the fiscal quarter then ended, plus (iii) 50% of the Net Cash Proceeds
of any equity issuances (excluding issuances pursuant to stock options
or other stock-based benefit awards to directors, officers or employees
of the Borrower, its Subsidiaries or its Affiliates and issuances
solely to finance Acquisitions) by the Borrower or any Subsidiary for
the fiscal quarter then ended.
6.17. Lines of Business. The Borrower will not, nor will it permit
any Subsidiary to, engage in any line or lines of business activity other than
the businesses in which they are engaged on the date hereof or lines of business
complementary or reasonably related to the construction products or building
materials industry.
44
6.18. Prepayment of Debt. When a Default has occurred and is
continuing or will result therefrom, the Borrower will not, and will not permit
any Subsidiary to, prepay any Indebtedness, except the Obligations.
6.19. Future Subsidiaries. The Borrower shall cause each Person that
becomes a Significant Subsidiary after the date of the initial Credit Extension
to promptly execute such documents, instruments, and agreements as the
Administrative Agent deems necessary or appropriate, in form and substance
satisfactory to the Administrative Agent, to cause such Subsidiary to become a
guarantor of the Obligations on a basis substantially the same as the existing
Guarantors.
6.20. Prohibition on Granting Negative Pledges. Except for this
Agreement and Liens permitted by Section 6.12 to the extent such Liens encumber
only the assets so financed, the Borrower will not and will not permit any
Subsidiary to enter into or become bound by any agreement, understanding or
arrangement (other than this Agreement) that limits, restricts or impairs in any
way the right of any of such Person to create, assume or suffer to exist any
Lien on any of such Person's Properties or assets in favor of the Administrative
Agent (or any successor Administrative Agent) for the benefit of the Lenders.
6.21. Prohibition on Granting Restrictions on Distributions. Except
for restrictions imposed by applicable law, the Borrower will not enter into or
become bound by any agreement, arrangement or understanding or permit its
Subsidiaries to do so (including, without limitation, their respective articles
of incorporation, bylaws or other charter documents) that limits, restricts,
subordinates or impairs in any way the right or ability of any of the
Subsidiaries to make dividends or distributions to or investments in the
Borrower or to repay any Indebtedness or obligation owed to the Borrower.
6.22. Prohibition on Synthetic Leases. Borrower will not at any time
become or be obligated as lessee or borrower under any Synthetic Lease nor will
it permit any Subsidiary to do so.
6.23. Acquisitions. For each proposed Acquisition with a total
purchase price greater than $25,000,000 (including cash consideration paid
however classified, assumed indebtedness, noncompete payments and consulting
payments whether such amounts are paid at closing or over time, and the dollar
value of all assets to be transferred by the purchaser to the seller in
connection with such Acquisition), Borrower will (i) complete not less than
customary due diligence on the acquisition target and, if requested by the
Administrative Agent, provide reasonable evidence thereof to the Administrative
Agent, including without limitation due diligence as to compliance with all
Environmental Laws and (ii) provide the Administrative Agent and each Lender
copies of the financial statements (which to the extent available, shall be
audited financial statements) of the acquisition target for the most recent
twelve (12) month period prior to the closing of the Acquisition and the interim
financial statements of the acquisition target, each containing at a minimum a
balance sheet, statement of income, and a statement of cash flow.
45
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.2. Nonpayment of principal of any Loan when due, nonpayment of
any Reimbursement Obligation within one Business Day after the same becomes due,
or nonpayment of interest upon any Loan or of any commitment fee, LC Fee or
other obligations under any of the Loan Documents within five days after the
same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions
of Section 6.1, 6.2, 6.10, 6.11, 6.12, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20,
6.21 or 6.22.
7.4. The breach by the Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement which is not remedied within 15 days after
written notice from the Administrative Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay when
due (beyond the applicable grace period with respect thereto, if any) any
Indebtedness aggregating in excess of $2,500,000 ("Material Indebtedness"); or
the default by the Borrower or any of its Subsidiaries in the performance
(beyond the applicable grace period with respect thereto, if any) of any term,
provision or condition contained in any agreement under which any such Material
Indebtedness was created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6. The Borrower or any of its Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material
46
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower
or any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of sixty (60) consecutive days.
7.8. Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Borrower or any Subsidiary which, when taken
together with all other Property of the Borrower or such Subsidiary so
condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action occurs,
constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within 60
days to pay, bond or otherwise discharge one or more (i) judgments or orders for
the payment of money in excess of $2,500,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. The Borrower or any member of the Controlled Group has
incurred in the aggregate Unfunded Liabilities of all Single Employer Plans by
an amount which could reasonably be expected to have a Material Adverse Effect
or any Reportable Event shall occur in connection with any Plan which could
reasonably be expected to have a Material Adverse Effect.
7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), could reasonably be expected
to have a Material Adverse Effect.
7.12. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount which
could reasonably be expected to have a Material Adverse Effect.
47
7.13. The Borrower or any of its Subsidiaries shall (i) be the
subject of any proceeding or investigation pertaining to the release by the
Borrower, any of its Subsidiaries or any other Person of any toxic or hazardous
waste or substance into the environment, or (ii) violate any Environmental Law,
which, in the case of an event described in clause (i) or clause (ii), could
reasonably be expected to have a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. Any Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any Guaranty to
which it is a party, or shall give notice to such effect.
7.16. The representations and warranties set forth in Section 5.15
("Plan Assets; Prohibited Transactions") shall at any time not be true and
correct.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration; Facility LC Collateral Account.
(i) If any Default described in Section 7.6 or 7.7
occurs, the obligations of the Lenders to make Loans hereunder and the
obligation and power of the LC Issuer to issue Facility LCs shall
automatically terminate and the Obligations shall immediately become
due and payable without any election or action on the part of the
Administrative Agent, the LC Issuer or any Lender and the Borrower will
be and become thereby unconditionally obligated, without any further
notice, act or demand, to pay to the Administrative Agent an amount in
immediately available funds, which funds shall be held in the Facility
LC Collateral Account, equal to the difference of (x) the amount of LC
Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of
all rights and claims of third parties and has not been applied against
the Obligations (such difference, the "Collateral Shortfall Amount").
If any other Default occurs, the Required Lenders (or the
Administrative Agent with the consent of the Required Lenders) may (a)
terminate or suspend the obligations of the Lenders to make Loans
hereunder and the obligation and power of the LC Issuer to issue
Facility LCs, or declare the Obligations to be due and payable, or
both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind,
all of which the Borrower hereby expressly waives, and (b) upon notice
to the Borrower and in addition to the continuing right to demand
payment of all amounts payable under this Agreement, make demand on the
Borrower to pay, and the Borrower will, forthwith upon such demand and
without any further notice or act, pay to the Administrative Agent the
Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
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(ii) If at any time while any Default is continuing, the
Administrative Agent determines that the Collateral Shortfall Amount at
such time is greater than zero, the Administrative Agent may make
demand on the Borrower to pay, and the Borrower will, forthwith upon
such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall
be deposited in the Facility LC Collateral Account.
(iii) The Administrative Agent may at any time or from time
to time after funds are deposited in the Facility LC Collateral
Account, apply such funds to the payment of the Obligations and any
other amounts as shall from time to time have become due and payable by
the Borrower to the Lenders or the LC Issuer under the Loan Documents.
(iv) At any time while any Default is continuing, neither
the Borrower nor any Person claiming on behalf of or through the
Borrower shall have any right to withdraw any of the funds held in the
Facility LC Collateral Account. After all of the Obligations have been
indefeasibly paid in full and the Aggregate Commitment has been
terminated, any funds remaining in the Facility LC Collateral Account
shall be returned by the Administrative Agent to the Borrower or paid
to whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity
of the Obligations or termination of the obligations of the Lenders to
make Loans and the obligation and power of the LC Issuer to issue
Facility LCs hereunder as a result of any Default (other than any
Default as described in Section 7.6 or 7.7) and before any judgment or
decree for the payment of the Obligations due shall have been obtained
or entered, the Required Lenders (in their sole discretion) shall so
direct, the Administrative Agent shall, by notice to the Borrower,
rescind and annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII,
the Required Lenders (or the Administrative Agent with the consent in writing of
the Required Lenders) and the Borrower may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrower
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of the Super Majority Lenders
amend, modify, or delete the definition of Change of Control in Article I or
amend, modify, waive or delete Section 7.14, provided, further, however, that no
such supplemental agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the
expiry date of any Facility LC to a date after the Facility Termination
Date or postpone any regularly scheduled payment of principal of any
Loan or forgive all or any portion of the principal amount thereof or
any Reimbursement Obligation related thereto, or reduce the rate or the
unused fee due under Section 2.5 or extend the time of payment of
interest or fees thereon or Reimbursement Obligations related thereto.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
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(iii) Extend the Facility Termination Date, or reduce the
amount or extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Aggregate Commitment
(except such increase in the Aggregate Commitment pursuant to Section
2.6, whereby only the consent of the Purchaser(s) and the Increasing
Lender(s) shall be necessary), the Commitment of any Lender hereunder
(except pursuant to Section 2.6) or the commitment to issue Facility
LCs, or permit the Borrower to assign its rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release any Guarantor except where the sale of all or
substantially all of the assets or equity interests in a Guarantor is
otherwise permitted hereunder, in which event the Administrative Agent
shall execute and deliver to Borrower such release upon such sale.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, and no amendment of any provision relating to the LC Issuer shall be
effective without the written consent of the LC Issuer. The Administrative Agent
may waive payment of the fee required under Section 12.3.2 without obtaining the
consent of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders,
the LC Issuer or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Credit Extension notwithstanding
the existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent, the LC Issuer and the Lenders until the Obligations
have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive the making
of the Credit Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
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9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. ENTIRE AGREEMENT. THE LOAN DOCUMENTS EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING AMONG THE BORROWER, THE ADMINISTRATIVE AGENT, THE LC
ISSUER AND THE LENDERS AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
AMONG THE BORROWER, THE ADMINISTRATIVE AGENT, THE LC ISSUER AND THE LENDERS
RELATING TO THE SUBJECT MATTER THEREOF OTHER THAN THE FEE LETTER DESCRIBED IN
SECTION 10.13. THE LOAN DOCUMENTS MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
9.5. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns, provided,
however, that the parties hereto expressly agree that the Arranger shall enjoy
the benefits of the provisions of Sections 9.6, 9.10 and 10.11 to the extent
specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it
were a party to this Agreement.
9.6. Expenses; Indemnification.
(i) The Borrower shall reimburse the Administrative
Agent, and the Arranger for any costs, internal charges for fees and
time charges of attorneys who are employees of the Administrative Agent
and the Arranger and all reasonable out-of-pocket expenses (including
attorneys' fees) paid or incurred by the Administrative Agent, or the
Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, distribution (including, without limitation, via
the internet), review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent, the Arranger, LC Issuer and the Lenders for any
costs, internal charges for fees and time charges of attorneys who are
employees of the Administrative Agent, the Arranger, the LC Issuer, and
the Lenders and out-of-pocket expenses (including attorneys' fees) paid
or incurred by the Administrative Agent, the Arranger, LC Issuer or any
Lender in connection with the collection and enforcement of the Loan
Documents. Expenses being reimbursed by the Borrower under this Section
include, without limitation costs and expenses incurred in connection
with the Reports described in the following sentence. The Borrower
acknowledges that from time to time Bank One may prepare and may
distribute to the Lenders (but shall have no obligation or duty to
prepare or to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to the Borrower's assets for internal use
by Bank One from information
51
furnished to it by or on behalf of the Borrower, after Bank One has
exercised its rights of inspection pursuant to this Agreement.
(ii) THE BORROWER HEREBY FURTHER AGREES TO INDEMNIFY THE
ADMINISTRATIVE AGENT, THE ARRANGER, LC ISSUER, EACH LENDER, THEIR
RESPECTIVE AFFILIATES, AND EACH OF THEIR DIRECTORS, OFFICERS AND
EMPLOYEES AGAINST ALL LOSSES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL EXPENSES
OF LITIGATION OR PREPARATION THEREFOR WHETHER OR NOT THE ADMINISTRATIVE
AGENT, THE ARRANGER, LC ISSUER, ANY LENDER OR ANY AFFILIATE IS A PARTY
THERETO) WHICH ANY OF THEM MAY PAY OR INCUR ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE DIRECT OR INDIRECT APPLICATION OR PROPOSED
APPLICATION OF THE PROCEEDS OF ANY CREDIT EXTENSION HEREUNDER EXCEPT TO
THE EXTENT THAT THEY ARE DETERMINED IN A FINAL NON-APPEALABLE JUDGMENT
BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF THE PARTY SEEKING
INDEMNIFICATION; PROVIDED HOWEVER, THAT IN NO EVENT SHALL THE BORROWER
BE LIABLE UNDER THIS SECTION 9.6 FOR ANY LOST PROFITS OR FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE OBLIGATIONS
OF THE BORROWER UNDER THIS SECTION 9.6 SHALL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
9.7. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower
on the one hand and the Lenders, the LC Issuer and the Administrative Agent on
the other hand shall be solely that of borrower and lender. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Administrative Agent,
the Arranger, the LC Issuer nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations. The Borrower agrees that neither
the Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have
liability to the Borrower (whether sounding in
52
tort, contract or otherwise) for losses suffered by the Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence, bad faith or willful misconduct of the party
from which recovery is sought. Neither the Administrative Agent, the Arranger,
the LC Issuer nor any Lender shall have any liability with respect to, and the
Borrower hereby waives, releases and agrees not to xxx for, any special,
indirect or consequential damages suffered by the Borrower in connection with,
arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, (vii)
permitted by Section 12.4, and (viii) to rating agencies if required by such
agencies in connection with a rating relating to the Advances hereunder.
9.12. Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of the
Credit Extensions provided for herein.
9.13. Disclosure. The Borrower and each Lender hereby acknowledge
and agree that Bank One and/or its Affiliates from time to time may hold
investments in, make other loans to, or have other relationships with the
Borrower and its Affiliates.
9.14. Survival of Prior Agreements. The rights and privileges
(excluding the confidentiality and indemnification provisions which are being
restated pursuant to this Agreement) afforded the Administrative Agent and the
Arranger in that certain commitment letter and that certain fee letter, each
dated February 11, 2003 among such Persons and Borrower, shall survive the
execution and delivery of this Agreement, and the Administrative Agent and the
Arranger shall continue to be entitled to the benefits thereof.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature of Relationship. Bank One, NA, is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Administrative Agent") hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express
53
conditions contained in this Article X. Notwithstanding the use of the defined
term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of "secured party" as defined in Section 9-102 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
10.2. Powers. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable to the Borrower,
the Lenders or any Lender for any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence, bad faith or willful misconduct of such Person.
10.4. No Responsibility for Credit Extensions, Recitals, etc.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (a) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (b) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (c) the satisfaction of any condition
specified in Article IV, except receipt of items required to be delivered solely
to the Administrative Agent; (d) the existence or possible existence of any
Default or Unmatured Default; (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Borrower or any guarantor of any of the Obligations
or of any of the Borrower's or any such guarantor's respective Subsidiaries. The
Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the Administrative Agent
at such time, but is voluntarily furnished by the Borrower to the Administrative
Agent (either in its capacity as Administrative Agent or in its individual
capacity).
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10.5. Action on Instructions of Lenders. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders or all Lenders, as the case may be,
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing
or refusing to take any action hereunder and under any other Loan Document
unless it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
10.6. Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the
Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall
be entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
10.8. Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Borrower for which the
Administrative Agent is entitled to reimbursement by the Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Administrative Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Administrative Agent in connection
with any dispute between the Administrative Agent and any Lender or between two
or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation, for any
such amounts incurred by or asserted against the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents, provided that (i) no Lender
shall be liable for any of the foregoing to the extent any of the foregoing is
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct
55
of the Administrative Agent and (ii) any indemnification required pursuant to
Section 3.5(vii) shall, notwithstanding the provisions of this Section 10.8, be
paid by the relevant Lender in accordance with the provisions thereof. The
obligations of the Lenders under this Section 10.8 shall survive payment of the
Obligations and termination of this Agreement.
10.9. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrower referring to this Agreement describing such
Default or Unmatured Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Commitment and its Credit
Extensions as any Lender and may exercise the same as though it were not the
Administrative Agent, and the term "Lender" or "Lenders" shall, at any time when
the Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
10.12. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, 45 days after the retiring Administrative Agent gives notice of its
intention to resign. The Administrative Agent may be removed at any time with or
without cause by written notice received by the Administrative Agent from the
Required Lenders, such removal to be effective on the date specified by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within 30 days after the resigning
Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time
56
without the consent of the Borrower or any Lender, appoint any of its Affiliates
which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties
of the Administrative Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$1,000,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon the
effectiveness of the resignation or removal of the Administrative Agent, the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.
10.13. Administrative Agent and Arranger Fees. The Borrower agrees to
pay to the Administrative Agent and the Arranger, for their respective accounts,
the fees agreed to by the Borrower, the Administrative Agent and the Arranger
pursuant to that certain letter agreement dated February 11, 2003, or as
otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree
that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and X.
10.15. Co-Agents, Syndication Agent, etc. Neither any of the Lenders
identified in this Agreement as a "co-agent" nor the Syndication Agent shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments
with respect to such Lenders as it makes with respect to the Administrative
Agent in Section 10.11.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Credit Exposure (other
than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Aggregate Outstanding Credit Exposure
held by the other Lenders so that after such purchase each Lender will hold its
Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their respective Pro Rata
Share of the Aggregate Outstanding Credit Exposure. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns permitted hereby, except
that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents without the prior written consent of each
Lender, (ii) any assignment by any Lender must be made in compliance with
Section 12.3, and (iii) any transfer by Participation must be made in compliance
with Section 12.2. Any attempted assignment or transfer by any party not made in
compliance with this Section 12.1 shall be null and void, unless such attempted
assignment or transfer is treated as a participation in accordance with Section
12.3.2. The parties to this Agreement acknowledge that clause (ii) of this
Section 12.1 relates only to absolute assignments and this Section 12.1 does not
prohibit assignments creating security interests, including, without limitation,
(x) any pledge or assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to a Federal Reserve Bank or (y) in the case
of a Lender which is a Fund, any pledge or assignment of all or any portion of
its rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Credit Extension or which holds any
58
Note as the owner thereof for all purposes hereof unless and until such Person
complies with Section 12.3; provided, however, that the Administrative Agent may
in its discretion (but shall not be required to) follow instructions from the
Person which made any Credit Extension or which holds any Note to direct
payments relating to such Credit Extension or Note to another Person. Any
assignee of the rights to any Credit Extension or any Note agrees by acceptance
of such assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of the
rights to any Credit Extension (whether or not a Note has been issued in
evidence thereof), shall be conclusive and binding on any subsequent holder or
assignee of the rights to such Credit Extension.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Credit Extension owing to such Lender,
any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents. In the event of
any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender
shall remain the owner of its Outstanding Credit Exposure and the
holder of any Note issued to it in evidence thereof for all purposes
under the Loan Documents, all amounts payable by the Borrower under
this Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect
to any Credit Extension or Commitment in which such Participant has an
interest which forgives principal, interest, fees or any Reimbursement
Obligation or reduces the interest rate or fees payable with respect to
any such Credit Extension or Commitment, extends the Facility
Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of or interest on any Credit Extension in which
such Participant has an interest, or any regularly-scheduled payment of
fees on any such Credit Extension or Commitment, releases any guarantor
of any such Credit Extension (except as otherwise permitted by Section
8.2(v)) or releases any collateral held in the Facility LC Collateral
Account (except in accordance with the terms hereof) or all or
substantially all of any other collateral, if any, securing any such
Credit Extension.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant.
59
The Lenders agree to share with each Participant, and each Participant,
by exercising the right of setoff provided in Section 11.1, agrees to
share with each Lender, any amount received pursuant to the exercise of
its right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Participant were a Lender. The Borrower further
agrees that each Participant shall be entitled to the benefits of
Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section
12.3, provided that (i) a Participant shall not be entitled to receive
(and the Borrower shall not be obligated to pay) any greater payment
under Section 3.1, 3.2 or 3.5 than the Lender (or the amount that would
be payable to the Lender) who sold the participating interest to such
Participant would have received had it retained such interest for its
own account, and (ii) any Participant not incorporated under the laws
of the United States of America or any State thereof agrees to comply
with the provisions of Section 3.5 to the same extent as if it were a
Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, at any time
assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Loan Documents; provided
however, if such assignments are of Eurodollar Loans prior to the last
day of the Interest Period applicable thereto, the Borrower will not be
required to pay the breakage fees, if any, associated with such
assignment. Such assignment shall be substantially in the form of
Exhibit C or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower, the Administrative Agent and the
LC Issuer shall be required prior to an assignment becoming effective
with respect to a Purchaser which is not a Lender or an Affiliate
thereof; provided, however, that if a Default has occurred and is
continuing, the consent of the Borrower shall not be required. Such
consent from any of the Borrower, the Administrative Agent and the LC
Issuer shall not be unreasonably withheld or delayed. Each such
assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Borrower and the
Administrative Agent otherwise consents) be in an amount not less than
the lesser of (i) $5,000,000 or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such
assignment) or outstanding Credit Extensions (if the applicable
Commitment has been terminated).
12.3.2. Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the
form attached as Exhibit I to Exhibit C (a "Notice of Assignment"),
together with any consents required by Section 12.3.1, and (ii) payment
of a $4,000 fee to the Administrative Agent for processing such
assignment (unless such fee is waived by the Administrative Agent),
such assignment shall become effective on the effective date specified
in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the Administrative Agent and the
Borrower to the effect that none of the consideration used to make the
purchase of the Commitment and Outstanding Credit Exposure under the
applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under
the Loan Documents will not be "plan assets" under ERISA. On and after
the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by or on
60
behalf of the Lenders and shall have all the rights and obligations of
a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the
Borrower, the Lenders or the Administrative Agent shall be required to
release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Outstanding Credit Exposure assigned to such
Purchaser. In the case of an assignment covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a Lender hereunder but shall continue to be entitled to the
benefits of, and subject to, those provisions of this Agreement and the
other Loan Documents which survive payment of the Obligations and
termination of the applicable agreement. Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not
comply with this Section 12.3 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 12.2. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Administrative Agent and the Borrower shall, if
the transferor Lender or the Purchaser desires that its Loans be
evidenced by Notes, make appropriate arrangements so that new Notes or,
as appropriate, replacement Notes are issued to such transferor Lender
and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
12.3.3. Consents. The consent of the Borrower shall be
required prior to an assignment becoming effective unless the Purchaser
is a Lender, an Affiliate of a Lender or an Approved Fund, provided
that the consent of the Borrower shall not be required if a Default has
occurred and is continuing. The consent of the Administrative Agent and
LC Issuer shall be required prior to an assignment becoming effective
unless the Purchaser is a Lender with a Revolving Commitment (in the
case of an assignment of a Revolving Commitment) or is an Affiliate of
a Lender or an Approved Fund. Any consent required under this Section
12.3.3 shall not be unreasonably withheld or delayed.
12.3.4. Register. The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at one of its
offices in Chicago, Illinois a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts
of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the "Register"). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable
prior notice.
12.4. Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries,
61
including without limitation any information contained in any Reports; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.15 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Administrative Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Lender, at its address or facsimile number set forth below its signature hereto,
or (z) in the case of any party, at such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Borrower in accordance with the provisions of this Section 13.1.
Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II shall not be effective until received.
13.2. Change of Address. The Borrower, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent, the LC Issuer and the Lenders and each party has notified
the Administrative Agent by facsimile transmission or telephone that it has
taken such action.
62
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF TEXAS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR TEXAS
STATE COURT SITTING IN DALLAS, TEXAS IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE LC ISSUER OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT, THE LC
ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, THE LC ISSUER
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN
A COURT IN DALLAS, TEXAS.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT,
THE LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
15.4. Effect of Amendment and Restatement.
(a) This Agreement is an amendment and restatement of the
terms and provisions of the Existing Credit Agreement. The indebtedness
of the Borrower outstanding under the Existing Credit Agreement and the
Notes outstanding thereunder immediately prior to the effectiveness
hereof ("Restatement Effective Time") is called the "Existing
Indebtedness". Neither the execution and delivery of this Agreement by
the Borrower or any Lender, nor any of the terms or provisions
contained herein, shall be construed to be a payment on or with respect
to the Existing Indebtedness or any accrued interest thereon. Without
limiting the foregoing, the Borrower and each of its
63
Subsidiaries hereby ratifies and confirms each Loan Document to which
such Person is a party including without limitation the Guaranty.
(b) Notwithstanding any provision of this Agreement to
the contrary, all Eurodollar Advances which are outstanding at the
Restatement Effective Time (each an "Existing Eurodollar Borrowing")
shall continue to be maintained by the Lenders until the last day of
the current Interest Period therefor (except to the extent prepaid or
converted by the Borrower prior to such date).
[Remainder of Page Intentionally Left Blank]
64
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Administrative Agent have executed this Agreement as of the date first above
written.
CENTEX CONSTRUCTION PRODUCTS, INC.,
as Borrower
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: 0000 X. Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Chief Financial Officer
Telephone: (000) 000-0000
FAX: (000) 000-0000
Signature Page to Second Amended and Restated Credit Agreement
BANK ONE, NA,
Individually, as Administrative Agent,
LC Issuer and as a Lender
By: _____________________________________
Xxxxxxx X. Xxxxx
Managing Director
Address: 1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
Signature Page to Second Amended and Restated Credit Agreement
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Syndication Agent
and as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
BANK OF AMERICA, N.A.,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
JPMORGAN CHASE BANK,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
BANK OF TEXAS, N.A.,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
BNP PARIBAS,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
COMERICA BANK,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
SUNTRUST BANK,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
THE NORTHERN TRUST COMPANY,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Attention: ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
Each Guarantor hereby consents and agrees to this Agreement and agrees
that the Guaranty shall remain in full force and effect and shall continue to
(i) guarantee the Guaranteed Obligations (as defined in the Guaranty) and (ii)
be the legal, valid and binding obligation of such Guarantor enforceable against
such Guarantor in accordance with its terms.
GUARANTORS:
REPUBLIC PAPERBOARD COMPANY LLC
XXXXXX & EASTERN RAILROAD COMPANY LLC
AMERICAN GYPSUM COMPANY
AMERICAN GYPSUM MARKETING COMPANY
CCP CEMENT COMPANY
CCP CONCRETE/AGGREGATES COMPANY
CCP GYPSUM COMPANY
CENTEX MATERIALS GP LTD, LLC
XXXXXXX READYMIX, INC.
MOUNTAIN CEMENT COMPANY
NEVADA CEMENT COMPANY
TLCC GP LLC
TEXAS CEMENT COMPANY
WESTERN AGGREGATES, INC.
By: _____________________________________
Xxxxxx X. Xxxxxx, Xx.
Senior Vice President - Finance and Treasurer
Signature Page to Second Amended and Restated Credit Agreement
CENTEX MATERIALS, LP
By: CENTEX MATERIALS GP LTD, LLC,
as its general partner
By: _________________________________
Xxxxxx X. Xxxxxx, Xx.
Senior Vice President - Finance
and Treasurer
CENTEX MATERIALS LP LTD, LLC
By: __________________________________
Name: __________________________________
Title: __________________________________
TLCC LP LLC
By: __________________________________
Name: __________________________________
Title: __________________________________
Signature Page to Second Amended and Restated Credit Agreement
EXHIBIT A
Pricing Schedule
-----------------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE
MARGIN FOR MARGIN FOR FEE RATE FOR
STATUS EURODOLLAR RATE FLOATING RATE COMMITMENT FEE
-----------------------------------------------------------------------------------------
Level I Status 1.00% 0.00% 0.30%
-----------------------------------------------------------------------------------------
Level II Status 1.25% 0.25% 0.35%
-----------------------------------------------------------------------------------------
Level III Status 1.50% 0.50% 0.40%
-----------------------------------------------------------------------------------------
Level IV Status 1.75% 0.75% 0.40%
-----------------------------------------------------------------------------------------
Level V Status 2.00% 1.00% 0.40%
-----------------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6.1(i) or (ii).
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is less than 1.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status and (ii) the Leverage Ratio is
greater than or equal to 1.00 to 1.00 but less than 1.50 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status or Level II Status and (ii)
the Leverage Ratio is greater than or equal to 1.50 to 1.00 but less than 2.00
to 1.00.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status, Level II Status, or Level III
Status and (ii) the Leverage Ratio is greater than or equal to 2.00 to 1.00 but
less than 2.50 to 1.00.
"Level V Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status, Level II Status, Level III
Status, or Level IV Status and (ii) the Leverage Ratio is greater than or equal
to 2.50 to 1.00.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as reflected
in the then most recent Financials. Adjustments, if any, to the Applicable
Margin or Applicable Fee Rate shall be effective five Business Days after the
Administrative Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Administrative Agent at the time required
pursuant to Section 6.1, then the Applicable Margin and Applicable Fee Rate
shall be the highest Applicable Margin and Applicable Fee Rate set forth in the
foregoing table until five days after such Financials are so delivered.
SCHEDULE 1
Commitments
Lender Total Commitment
------ ----------------
Bank One, NA 30,000,000
PNC Bank, National Association 25,000,000
Bank of America, N.A. 15,000,000
JPMorgan Chase Bank 15,000,000
Bank of Texas, N.A. 15,000,000
BNP Paribas 15,000,000
Comerica Bank 15,000,000
SunTrust Bank 15,000,000
Northern Trust 10,000,000
SCHEDULE 3
LIENS
1. Lender Balance Secured
------ ------- -------
Xxxxxx Ranch, Inc. $160,000 Land purchased by Mountain Cement
Company for use as limestone quarry
2. Liens created in connection with any accounts receivable securitization
facility permitted under Section 6.12(vi) of the Credit Agreement.
SCHEDULE 4
Existing Facility LCs
1. Letter of Credit Number 322253 issued by Bank One, NA in the face
amount of $3,889,087.00 in favor of Pacific Employers Insurance Co., with an
expiry date of May 1, 2003.
2. Letter of Credit Number 00000000 issued by Bank One, NA in the face
amount of $3,654,027.00 in favor of St. Xxxx Fire and Marine Insurance Co., with
an expiry date of May 1, 2003.
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement described below
This Compliance Certificate (this "Certificate") is furnished pursuant
to that certain Second Amended and Restated Credit Agreement dated as of March
25, 2003 (as amended, modified, restated, supplemented, renewed or extended from
time to time, the "Agreement") among Centex Corporation Products, Inc., a
Delaware corporation (the "Borrower"), the Lenders party thereto, PNC Bank,
National Association, as Syndication Agent, Bank One, NA, as LC Issuer and as
Administrative Agent for the Lenders. Unless otherwise defined herein,
capitalized terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _________________ of the Borrower.
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Significant Subsidiaries
during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below.
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
5. Schedule II hereto sets forth the determination of the
interest rates to be paid for Advances, the LC Fee rates and the commitment fee
rates commencing on the fifth day following the delivery hereof.
6. Schedule III attached hereto sets forth the various reports
and deliveries which are required at this time under the Agreement and the other
Loan Documents and the status of compliance.
7. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
The foregoing certifications, together with the computations set forth
in Schedule I and Schedule II hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this _____ day of
_______________, 200___.
___________________________
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _______________, 200__ with
Provisions of _______________ and _______________ of
the Agreement
SCHEDULE II TO COMPLIANCE CERTIFICATE
Borrower's Applicable Margin Calculation
SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Second Amended and Restated Credit Agreement
identified below (as amended, the "Credit Agreement"), receipt of a copy of
which is hereby acknowledged by the Assignee. The Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations in its capacity as a Lender under the
Credit Agreement and any other documents or instruments delivered pursuant
thereto that represents the amount and percentage interest identified below of
all of the Assignor's outstanding rights and obligations under the respective
facilities identified below (including without limitation any letters of credit,
guaranties and swingline loans included in such facilities and, to the extent
permitted to be assigned under applicable law, all claims (including without
limitation contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity), suits, causes of action and any other
right of the Assignor against any Person whether known or unknown arising under
or in connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby) (the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: _____________________________________________________
2. Assignee: ________________________[and is an Affiliate/Approved
Fund of [identify Lender](1)
3. Borrower(s): _____________________________________________________
4. Administrative Agent: Bank One, NA, as the Administrative Agent under
the Credit Agreement.
5. Credit Agreement: The $250,000,000 Second Amended and Restated
Credit Agreement dated as of March 25, 2003 among
Centex Construction Products, Inc., the Lenders
party thereto, the Syndication Agent, and Bank
One, NA, as Administrative Agent.
-------------------------------
(1) Select as applicable
6. Assigned Interest:
--------------------------------------------------------------------------------------------------------------
Aggregate Amount of Amount of
Commitment/Loans for all Commitment/Loans Percentage Assigned of
Lenders* Assigned* Commitment/Loans(2)
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
$ $ _______%
--------------------------------------------------------------------------------------------------------------
$ $ _______%
--------------------------------------------------------------------------------------------------------------
$ $ _______%
--------------------------------------------------------------------------------------------------------------
7. Trade Date: _____________________________________________(3)
Effective Date: ____________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE
ADMINISTRATIVE AGENT.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: ______________________
Name: ____________________
Title: ___________________
ASSIGNEE
[NAME OF ASSIGNEE]
By: ______________________
Name: ____________________
Title: ___________________
---------------------------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
(2) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
(3) Insert if satisfaction of minimum amounts is to be determined as of the
Trade Date.
[Consented to and](4) Accepted:
BANK ONE, NA, as Administrative Agent
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
[Consented to:](5)
[NAME OF RELEVANT PARTY]
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
-----------------------------
(4) To be added only if the consent of the Administrative Agent is required
by the terms of the Credit Agreement.
(5) To be added only if the consent of the Borrower and/or other parties
(e.g. LC Issuer) is required by the terms of the Credit Agreement.
ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency, perfection, priority,
collectibility, or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Loan Document, (iv)
the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document, (v) inspecting any of the property, books or records of the
Borrower, or any guarantor, or (vi) any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the Loan Documents.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iii) agrees that its payment
instructions and notice instructions are as set forth in Schedule 1 to this
Assignment and Assumption, (iv) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
(v) agrees to indemnify and hold the Assignor harmless against all losses, costs
and expenses (including, without limitation, reasonable attorneys' fees) and
liabilities incurred by the Assignor in connection with or arising in any manner
from the Assignee's non-performance of the obligations assumed under this
Assignment and Assumption, (vi) it has received a copy of the Credit Agreement,
together with copies of financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other
Lender, and (vii) attached as Schedule 1 to this Assignment and Assumption is
any documentation required to be delivered by the Assignee with respect to its
tax status pursuant to the terms of the Credit Agreement, duly completed and
executed by the Assignee and (b) agrees that (i) it will, independently and
without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2. Payments. The Assignee shall pay the Assignor, on the
Effective Date, the amount agreed to by the Assignor and the Assignee. From and
after the Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of Texas.
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Bank One, NA,
as Administrative Agent (the "Administrative Agent")
under the Credit Agreement described below.
Re: Second Amended and Restated Credit Agreement, dated as of March 25,
2003 (as the same may be amended, restated, supplemented or modified,
the "Credit Agreement"), among Centex Construction Products, Inc., a
Delaware corporation (the "Borrower"), the Lenders named therein, the
LC Issuer, the Syndication Agent, and the Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in
accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.15 of the Credit Agreement.
Facility Identification Number(s) ______________________________________________
Customer/Account Name __________________________________________________________
Transfer Funds To ______________________________________________________________
______________________________________________________________
For Account No. ________________________________________________________________
Reference/Attention To _________________________________________________________
Authorized Officer (Customer Representative) Date ______________________________
__________________________________________ __________________________
(Please Print) Signature
Bank Officer Name
Date _____________________
__________________________________________ __________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT E
NOTE
March 25, 2003
Centex Construction Products, Inc., a Delaware corporation (the
"Borrower"), promises to pay to the order of _______________________ (the
"Lender") the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to Article II of the Agreement (as hereinafter
defined), in immediately available funds at the main office of Bank One, NA in
Dallas, Texas, as Administrative Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Second Amended and Restated Credit Agreement dated as of
March 25, 2003 (which, as it may be amended, restated, supplemented or modified
and in effect from time to time, is herein called the "Agreement"), among the
Borrower, the lenders party thereto, including the Lender, PNC Bank, National
Association, as Syndication Agent, Bank One, NA, as LC Issuer and as
Administrative Agent, to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including the terms
and conditions under which this Note may be prepaid or its maturity date
accelerated. This Note is guaranteed pursuant to the Guaranty, all as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
CENTEX CONSTRUCTION PRODUCTS, INC.
By: ________________________________
Name: __________________________
Title: _________________________
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF CENTEX CONSTRUCTION PRODUCTS, INC.
DATED ___________________, 200__
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- ----- --------- ----- --------
EXHIBIT F
COMMITMENT AND ACCEPTANCE
This Commitment and Acceptance (this "Commitment and Acceptance") dated
as of ______________, 200__, is entered into among the parties listed on the
signature pages hereof. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Second Amended and
Restated Credit Agreement (as defined below).
PRELIMINARY STATEMENTS
Reference is made to that certain Second Amended and Restated Credit
Agreement dated March 25, 2003, by and among Centex Corporation Products, Inc.,
a Delaware corporation (the "Borrower"), the Lenders party thereto, PNC Bank,
National Association, as Syndication Agent, Bank One, NA, as LC Issuer and as
Administrative Agent for the Lenders (as the same may be amended, modified,
restated, supplemented, renewed or extended from time to time, the "Credit
Agreement").
Pursuant to Section 2.6 of the Credit Agreement, the Borrower has
requested an increase in the Aggregate Commitment from $_________________ to
$_________________. Such increase in the Aggregate Commitment is to become
effective on ________________, 200__ (the "Increase Date"). In connection with
such requested increase in the Aggregate Commitment, the Borrower, the
Administrative Agent and __________________ (the "Accepting Lender") hereby
agree as follows:
AGREEMENTS
1. ACCEPTING LENDER'S COMMITMENT. Effective as of the Increase
Date, [the Accepting Lender shall become a party to the Credit Agreement as a
Lender, shall have (subject to the provisions of Section 2.6 of the Credit
Agreement) all of the rights and obligations of a Lender thereunder, shall agree
to be bound by the terms and provisions thereof and shall thereupon have a
Commitment under and for purposes of the Credit Agreement in an amount equal to
the] [the Commitment of the Accepting Lender under the Credit Agreement shall be
increased from $____________ to the] amount set forth opposite the Accepting
Lender's name on the signature pages hereof.]
2. [REPRESENTATIONS AND AGREEMENTS OF ACCEPTING LENDER. The
Accepting Lender (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements requested by the
Accepting Lender and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Commitment and Acceptance, (ii) agrees that it will, independently and without
reliance upon the Administrative Agent or any Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Documents,
(iii) appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under the Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are
required to be performed by it as a Lender, (v) agrees that its payment
instructions and notice instructions are as set forth in Schedule 1 hereto, (vi)
confirms that none of the funds, monies, assets or other consideration being
used to make the commitment and acceptance hereunder are "plan assets" as
defined under ERISA and that its rights, benefits and interests in and under the
Loan Documents will not be "plan assets" under ERISA, (vii) confirms that it is
a Purchaser, and (viii) attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Accepting Lender is entitled to
receive payments under the Loan Documents without deduction or withholding of
any United States federal income taxes.](1)
3. REPRESENTATION OF BORROWER. The Borrower hereby represents and
warrants that, as of the date hereof and as of the Increase Date, (a) no event
or condition shall have occurred and then be continuing which constitutes a
Default or an Unmatured Default, and (b) the representations and warranties
contained in Article V of the Credit Agreement are true and correct in all
material respects (except to the extent any such representation or warranty is
stated to relate solely to an earlier date).
4. SYNDICATION FEE. On or before the Increase Date, the Borrower
shall pay to the Administrative Agent for the account of the Accepting Lender a
nonrefundable syndication fee in an amount equal to [_____%] of the actual
increase on Accepting Lender's Commitment.
5. COUNTERPARTS; DELIVERY BY FACSIMILE. This Commitment and
Acceptance may be executed in counterparts. Transmission by facsimile of an
executed counterpart of this Commitment and Acceptance shall be deemed to
constitute due and sufficient delivery of such counterpart and such facsimile
shall be deemed to be an original counterpart of this Commitment and Acceptance.
6. GOVERNING LAW. This Commitment and Acceptance shall be
governed by and constructed in accordance with, the laws of the State of Texas
and the applicable laws of the United States of America.
7. [NOTICES. FOR THE PURPOSE OF NOTICES TO BE GIVEN UNDER THE
CREDIT AGREEMENT, THE ADDRESS OF THE ACCEPTING LENDER (UNTIL NOTICE OF A CHANGE
IS DELIVERED) SHALL BE THE ADDRESS SET FORTH IN SCHEDULE 1 HERETO.(2)
[Remainder of this page intentionally left blank.]
----------------------------
(1) Paragraph 2 is to be included only if the Accepting Lender is a
Purchaser prior to the Increase Date, and subparagraph 2(viii) is to be
included only if such Accepting Lender is not incorporated under the
laws of the United States, or a state thereof.
(2) Paragraph 6 and Schedule 1 are to be included only if the Accepting
Lender is a Purchaser prior to the Increase Date.
IN WITNESS WHEREOF, the parties hereto have executed this Commitment
and Acceptance by their duly authorized officers as of the date first above
written.
CENTEX CONSTRUCTION PRODUCTS, INC.,
as Borrower
By: _______________________________
Name: _________________________
Title: ________________________
BANK ONE, NA,
as Administrative Agent
By: _______________________________
Name: _________________________
Title: ________________________
$__________________ __________________________________,
as Accepting Lender
By: _______________________________
Name: _________________________
Title: ________________________
SCHEDULE 1
TO COMMITMENT AND ACCEPTANCE
ADMINISTRATIVE INFORMATION SHEET
ACCEPTING LENDER INFORMATION
CREDIT CONTACT:
Name:_________________________________ Telephone No.:________________________
Fax No.:______________________________ Telex No.:____________________________
Answerback:___________________________
KEY OPERATIONS CONTACTS:
Booking Installation:_________________ Booking Installation:_________________
Name:_________________________________ Name:_________________________________
Telephone No.:________________________ Telephone No.:________________________
Fax No.:______________________________ Fax No.:______________________________
Telex No.:____________________________ Telex No.:____________________________
Answerback:___________________________ Answerback:___________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: ______________________________________
______________________________________
Account Name & Number for Wire Transfer: ______________________________________
______________________________________
Other Instructions:_____________________________________________________________
________________________________________________________________________________
ADDRESS FOR NOTICES FOR ACCEPTING LENDER ______________________________________
______________________________________
______________________________________
