Exhibit 99.3
AMENDMENT NUMBER THREE TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NUMBER THREE TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of August 6, 1997, is entered into among SOUTHDOWN, INC., a Louisiana
corporation ("Borrower"), the banks and financial institutions that are
signatories to the Credit Agreement (as defined below) (collectively, the
"Banks", and individually, a "Bank"), and XXXXX FARGO BANK, N.A., a national
banking association, as agent for the Banks hereunder ("Agent").
WHEREAS, Borrower, the Banks, and Agent heretofore have entered into that
certain Third Amended and Restated Credit Agreement, dated as of November 3,
1995, as amended by (a) that certain Letter Agreement, dated as of February 29,
1996, and (b) that certain Amendment Number Two to Third Amended and Restated
Credit Agreement, dated as of September 30, 1996 (as amended, the "Credit
Agreement");
WHEREAS, Borrower has requested, among other things, that the Credit
Agreement be amended to (a) extend the Maturity Date of and modify the interest
rates applicable to the Loans, (b) modify the definitions of Permitted Junior
Payments and Permitted Acquisitions, (c) modify certain covenants relating to
Investments, (d) modify certain financial covenants, and (e) permit Borrower and
its Subsidiaries to enter into a merger pertaining to a Permitted Acquisition so
long as Borrower or such Subsidiary is the surviving entity; and
WHEREAS, subject to the terms and conditions contained herein, the Banks
are willing to so amend such provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and
provisions hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS FOR THIS THIRD AMENDMENT. Any and all initially capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement, as amended hereby, unless specifically defined herein. For purposes
of this Third Amendment only, the following initially capitalized terms shall
have the following meanings:
"AGENT" has the meaning set forth in the introduction to this Third
Amendment.
"BANK" and "BANKS" have the respective meanings set forth in the
introduction to this Third Amendment.
"BORROWER" has the meaning set forth in the introduction to this Third
Amendment.
"CREDIT AGREEMENT" has the meaning set forth in the introduction to this
Third Amendment.
ARTICLE 2
AMENDMENTS TO THE CREDIT AGREEMENT
2.1 Section 1.1 of the Credit Agreement hereby is amended by adding the
following defined terms in alphabetical order:
"DISQUALIFIED STOCK" means any Capital Stock of any Person which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event or with the passage of
time, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the maturity date of the
Securities (as defined in the Indenture), or which is exchangeable or
convertible into debt securities of such Person, except to the extent that such
exchange or conversion rights cannot be exercised prior to the maturity date of
the Securities (as defined in the Indenture).
"INDENTURE" means that certain Indenture, dated as of March 19, 1996,
between Borrower and State Street Bank and Trust Company, a Massachusetts trust
company, as trustee.
"PERMITTED PAYMENT MEASUREMENT PERIOD" means the period from and after
April 1, 1996 through and including the date on which a Permitted Junior Payment
actually is made.
"THIRD AMENDMENT" means Amendment Number Three to Third Amended and
Restated Credit Agreement, dated as of August 6, 1997, among Borrower, the Banks
party thereto, and Agent.
"THIRD AMENDMENT CLOSING DATE" means the date on which the conditions
precedent set forth in ARTICLE 3 of the Third Amendment shall have been
satisfied.
2.2 Section 1.1 of the Credit Agreement hereby is amended by deleting in
their entirety the following defined terms: "Keepwell Agreement," "MARAD,"
"MARAD Reserve," "Warrant Agreement," and "Warrant Exercise Proceeds."
2.3 The definition of "Applicable Base Rate Margin" set forth in Section
1.1 of the Credit Agreement hereby is amended in its entirety to read as
follows:
"APPLICABLE BASE RATE MARGIN" means and refers to, with respect to Base
Rate Loans,
LEVERAGE RATIO APPLICABLE BASE RATE MARGIN
greater than or equal
to 2.50:1.00 0.25 percentage points
less than 2.50:1.00 0.00 percentage points
The Applicable Base Rate Margin shall be based upon Borrower's
Leverage Ratio which will be calculated quarterly as at the end of each
fiscal quarter of Borrower based upon the four (4) immediately
preceding fiscal quarters, including the quarter then ended. The
applicable margin shall be redetermined quarterly on the date Agent
receives quarterly financial statements pursuant to SECTION 5.2(A)
hereof (or, in the case of the fourth fiscal quarter in each fiscal
year, a certification by the chief financial officer or treasurer of
Borrower).
2.4 The definition of "Applicable Commitment Fee Percentage" set forth in
Section 1.1 of the Credit Agreement hereby is amended in its entirety to read as
follows:
"APPLICABLE COMMITMENT FEE PERCENTAGE" means and refers to, with respect to
the calculation of the Commitment Fee provided for in SECTION 2.13 hereof,
LEVERAGE RATIO APPLICABLE COMMITMENT FEE
PERCENTAGE
greater than or equal
to 2.50:1.00 0.375 percentage points
less than 2.50:1.00,
but greater than or
equal to 1.75:1.00 0.30 percentage points
less than 1.75:1.00,
but greater than or
equal to 1.00:1.00 0.25 percentage points
less than 1.00:1.00 0.22 percentage points
The Applicable Commitment Fee Percentage shall be based upon
Borrower's Leverage Ratio which will be calculated quarterly as at the
end of each fiscal quarter of Borrower based upon the four (4)
immediately preceding fiscal quarters, including the quarter then
ended. The applicable percentage shall be redetermined quarterly on the
date Agent receives quarterly financial statements pursuant to SECTION
5.2(A) hereof
(or, in the case of the fourth fiscal quarter in each fiscal year, a
certification by the chief financial officer or treasurer of Borrower).
2.5 The definition of "Applicable LIBOR Rate Margin" set forth in Section
1.1 of the Credit Agreement hereby is amended in its entirety to read as
follows:
"APPLICABLE LIBOR RATE MARGIN" means and refers to,
LEVERAGE RATIO APPLICABLE LIBOR RATE MARGIN
greater than or equal
to 2.50:1.00 1.50 percentage points
less than 2.50:1.00,
but greater than or
equal to 1.75:1.00 1.00 percentage points
less than 1.75:1.00,
but greater than or
equal to 1.00:1.00 0.75 percentage points
less than 1.00:1.00 0.50 percentage points
The Applicable LIBOR Rate Margin shall be based upon
Borrower's Leverage Ratio which will be calculated quarterly as at the
end of each fiscal quarter of Borrower based upon the four (4)
immediately preceding fiscal quarters, including the quarter then
ended. The applicable margin shall be redetermined quarterly on the
date Agent receives quarterly financial statements pursuant to SECTION
5.2(A) hereof (or, in the case of the fourth fiscal quarter in each
fiscal year, a certification by the chief financial officer or
treasurer of Borrower). Anything to the contrary contained herein
notwithstanding, (a) any LIBOR Rate Loan that is outstanding on the day
on which the Applicable LIBOR Rate Margin changes, shall, until the end
of the Interest Period relating to such LIBOR Rate Loan, continue to
bear interest at the Applicable LIBOR Rate Margin that was in effect on
the date such LIBOR Rate Loan was made, and (b) the letter of credit
fee with respect to any Letter of Credit (other than a Commercial
Letter of Credit) that is outstanding on the day on which the
Applicable LIBOR Rate Margin changes, automatically shall be adjusted
as of the date on which the Applicable LIBOR Rate Margin is adjusted.
2.6 The definition of "Free Cash Flow Ratio" set forth in Section 1.1 of
the Credit Agreement hereby is amended in its entirety to read as follows:
"FREE CASH FLOW RATIO" means and refers to, for the period to be
determined, the ratio of (a) Consolidated EBITDA MINUS the lesser of (i) Twenty
Five Million Dollars ($25,000,000) and (ii) actual Capital Expenditures
calculated based upon the immediately preceding four (4) fiscal quarters, to (b)
the sum of cash Interest Expense,
current provision for income taxes, dividends, and the current portion of
Funded Debt as of the last day of such period (exclusive of Debt under this
Agreement, the Subordinated Debt (to the extent that it is redeemed,
repurchased, exchanged, or refinanced), and the Debt evidenced by the Pollution
Control Bonds). For purposes of calculating the Free Cash Flow Ratio, Capital
Expenditures shall be calculated exclusive of Capital Expenditures incurred or
expended in connection with the consummation of a Permitted Acquisition to the
extent that Borrower consummates such Permitted Acquisition with the Net
Issuance Proceeds of Qualified Offerings that were raised for the express
purpose of consummating such Permitted Acquisition. In order to take advantage
of such exclusion, Borrower shall be required to designate the calculation
thereof to Agent in connection with the delivery of the Officer's Compliance
Certificate pursuant to SECTION 5.2(F).
2.7 The definition of "Junior Payment Amount" set forth in Section 1.1 of
the Credit Agreement hereby is amended in its entirety to read as follows:
"JUNIOR PAYMENT AMOUNT" means and refers to the result of: (a) the sum of
(i) fifty percent (50%) of Consolidated Net Income (or in the event such
Consolidated Net Income shall be a deficit, MINUS one hundred percent (100%) of
such deficit) during the Permitted Payment Measurement Period, PLUS (ii) the Net
Issuance Proceeds of Qualified Offerings received during the Permitted Payment
Measurement Period, PLUS (iii) the amount by which the Debt of Borrower is
reduced on Borrower's balance sheet upon the conversion or exchange (other than
by a Subsidiary) of any Debt of Borrower into or for Capital Stock (other than
Disqualified Stock) of Borrower, during the Permitted Payment Measurement
Period, PLUS (iv) Thirty Million Dollars ($30,000,000); MINUS (b) an amount
equal to the aggregate Dollar amount of dividends (other than dividends paid in
the form of Borrower Common Stock) in respect of Borrower Common Stock and
Preferred Stock paid or accrued during the Permitted Payment Measurement Period.
2.8 The definition of "Maturity Date" set forth in Section 1.1 of the
Credit Agreement hereby is amended in its entirety to read as follows:
"MATURITY DATE" means and refers to June 30, 2002.
2.9 The definition of "Permitted Acquisitions" set forth in Section 1.1 of
the Credit Agreement hereby is amended in its entirety to read as follows:
"PERMITTED ACQUISITIONS" means and refers to Investments or Asset
Acquisitions that (a) are in an aggregate amount (in addition to Borrower's
Investments in KCC permitted under SECTIONS 6.3(J) AND (M) hereof) during the
term of this Agreement of not more than twenty percent (20%) of the book value
of all of Borrower's tangible Assets (exclusive of Borrower's interest in KCC)
at the time of such Investment or Asset Acquisition, (b) are in Persons, or of
Assets, that are engaged in, or useful in connection with, businesses that are
substantially the same as those conducted by
Borrower and its Subsidiaries on the Closing Date, (c) if the consideration paid
or payable for any such Investment or Asset Acquisition, or series of related
transactions, is in excess of One Hundred Million Dollars ($100,000,000), result
in (or continue) Borrower owning not less than fifty percent (50%) of the Voting
Stock (or membership interests or partnership interests in the case of a limited
liability company or limited liability partnership, respectively) of the Person
in which the Investment is made or the Person that is to acquire the Assets and
with respect to which Borrower also has the right, whether by contract, vote, or
otherwise to exercise substantial input in the management and control of the
business of such Person; (d) are not made utilizing Assets that compose the
Collateral, and (e) are not made utilizing Assets that compose the Brooksville
Plant. For purposes of the foregoing, a contribution of Dollars or Assets by
Borrower to a newly created Subsidiary of Borrower for the purpose of permitting
such Subsidiary to complete an Investment or Asset Acquisition shall not itself
constitute an Investment to the extent such Dollars or Assets are, in fact, used
to complete the proposed Investment or Asset Acquisition.
2.10 The definition of "Permitted Junior Payments" set forth in Section 1.1
of the Credit Agreement hereby is amended in its entirety to read as follows:
"PERMITTED JUNIOR PAYMENTS" means and refers to, so long as at each time
thereof, no Event of Default or Unmatured Event of Default has occurred and is
continuing and no such Event of Default or Unmatured Event of Default would
result therefrom, (a) the redemption, payment, repurchase, retirement for value,
or acquisition, in one or more transactions, in an aggregate amount (excluding
any consideration paid in the form of Borrower Common Stock) of up to the Junior
Payment Amount of (i) Preferred Stock, (ii) Borrower Common Stock, or (iii) any
combination of the foregoing, and (b) the conversion of any Permitted Preferred
Stock into, or the redemption or acquisition of any Permitted Preferred Stock
for, Borrower Common Stock and payments of immaterial amounts in lieu of
fractional shares in connection with any such conversion or redemption;
PROVIDED, HOWEVER, that if no Event of Default or Unmatured Event of Default had
occurred and was continuing on the date that Borrower gives notice of redemption
or otherwise commences any action preliminary to making a Permitted Junior
Payment, Borrower shall be entitled to make such Permitted Junior Payment
notwithstanding the occurrence or continuation of an Event of Default or
Unmatured Event of Default (other than an Event of Default or Unmatured Event of
Default under SECTION 7.1(A) hereof) as of the date such Permitted Junior
Payment is to be made.
2.11 The definition of "Qualified Offerings" set forth in Section 1.1 of
the Credit Agreement hereby is amended in its entirety to read as follows:
"QUALIFIED OFFERINGS" means and refers to all offerings (whether one or
more) by Borrower, on or after November 3, 1995, of equity securities other than
Prohibited Preferred Stock, including, without limitation, the issuance of
equity securities pursuant to warrants.
2.12 The definition of "Revolving Credit Facility Usage" set forth in
Section 1.1 of the Credit Agreement hereby is amended in its entirety to read as
follows:
"REVOLVING CREDIT FACILITY USAGE" shall mean, on the date any determination
thereof is to be made, the sum of, without duplication: (a) the outstanding
amount of the Revolving Credit Facility Loans; PLUS (b) the Letter of Credit
Usage; PLUS (c) any amounts reserved under SECTION 6.1(D).
2.13 Section 2.1(c) of the Credit Agreement hereby is deleted in its
entirety.
2.14 Clause (b) of Section 2.8 of the Credit Agreement hereby is amended by
deleting the following parenthetical:
(except a Borrowing pursuant to SECTION 2.1(C) which shall be made upon
the written notice provided for therein but shall be subject to the
timing requirement set forth in CLAUSE (I) and SUBSECTION (C) below)
2.15 Clause (d) of Section 5.9 of the Credit Agreement hereby is amended in
its entirety to read as follows:
(D) REPORTING. Borrower promptly shall advise Agent and each Bank in
writing and in reasonable detail of any administrative or judicial
proceeding subject to disclosure under 17 C.F.R.
ss.229.103(5)(C)(1995) that reasonably could be expected to have a
Material Adverse Effect.
2.16 Article 5 of the Credit Agreement hereby is amended by adding the
following Section 5.14:
5.14 AMENDMENT OF REAL PROPERTY COLLATERAL DOCUMENTS. On or before the
date that is sixty (60) days following the Third Amendment
Closing Date, Borrower shall execute and deliver to Agent (a)
such amendments, if any, to the Real Property Collateral
Documents, in form and substance reasonably satisfactory to Agent
and its counsel, as Agent has concluded are necessary as a result
of the Third Amendment to continue the grant to Agent, on behalf
of the Banks, of a Lien upon the Collateral, and (b) an
endorsement to the title policy insuring the same in regards to
the Third Amendment if Agent has concluded that amendments are
necessary pursuant to CLAUSE (A) of this SECTION 5.14.
2.17 Section 6.3 of the Credit Agreement hereby is amended in its entirety
to read as follows:
6.3 INVESTMENTS. Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly make or own any
Investment in any Person, except:
(a) Borrower and each of its Subsidiaries may make and own
Investments in Cash Equivalents;
(b) Borrower and each of its Subsidiaries may maintain any Investment
extant on the date hereof in any of Borrower's Subsidiaries or in
any other Person as such Investments are set forth in the
Disclosure Statement;
(c) Borrower and its Subsidiaries may make and own loans and
otherwise create Debt as permitted under SECTIONS 6.1(L) and
6.1(I) hereof;
(d) so long as no Event of Default or Unmatured Event of Default has
occurred and is continuing and so long as no Event of Default or
Unmatured Event of Default would result therefrom, Borrower and
its Subsidiaries may make and own Investments not otherwise
permitted under this SECTION 6.3 to the extent that such
Investments constitute Permitted Acquisitions;
(e) Borrower and its Subsidiaries may make and own loans or advances
to any of their officers or employees;
(f) Borrower and each of its Subsidiaries may make and own
Investments in any debt or equity instrument (i) that matures
within three hundred ninety (390) days of the date of acquisition
of the Investment and is issued by a Person that on the date of
acquisition of the Investment has a commercial paper rating of
P-1 by Xxxxx'x or A-1 by S&P, or better, or such instrument is
irrevocably guaranteed or backed by an irrevocable letter of
credit from the date of acquisition of the Investment through
maturity by a Person having on the date of acquisition of the
Investment a long-term debt rating of no less than Aa by Xxxxx'x
or AA by S&P, or (ii) that matures within thirty (30) days of the
date of the Investment and is issued by a Person that on the date
of acquisition of the Investment has a commercial paper rating of
no less than P-2 by Xxxxx'x or A-2 by S&P, or such instrument is
irrevocably guaranteed or backed by an irrevocable letter of
credit from the date of acquisition of the Investment through
maturity by a Person having on the date of acquisition of the
Investment a long-term debt rating of no less than A by Xxxxx'x
or A by S&P, or (iii) that matures within five hundred forty
(540) days of the date of acquisition of the Investment and is
issued by a Person that on the date of acquisition of the
Investment has a commercial paper rating of P-1 by Xxxxx'x or A-1
by S&P, or better, or such instrument is irrevocably guaranteed
or backed by an irrevocable letter of credit from the date of
acquisition of the Investment through maturity by a Person having
on the date of acquisition of the Investment a long-term debt
rating of no less than Aa by Xxxxx'x or AA by S&P; PROVIDED,
HOWEVER, that the maximum amount of all such Investments under
this CLAUSE (III) shall not exceed Twenty Five Million Dollars
($25,000,000) in the aggregate outstanding at any one time, or
(iv) with respect to Xxxxx XxXxxxxxx Insurance Bermuda, Ltd.,
only, which is consistent with past practices and in an aggregate
amount not in excess of that required for collateral security and
capitalization purposes for the conduct of its business;
(g) Investments in respect of accounts receivable that have become
delinquent, including the acceptance of securities of the account
debtor obtained by Borrower or its Subsidiaries in connection
with a plan of reorganization or workout of the indebtedness of
such account debtor, together with the making of additional
Investments in such account debtors so long as the maximum amount
of additional Investments made in any one such account debtor
under this CLAUSE (G) does not exceed Seven Million Five Hundred
Thousand Dollars ($7,500,000) and so long as the maximum amount
of all such additional Investments in such account debtors under
this CLAUSE (G) does not exceed Twenty Five Million Dollars
($25,000,000) in the aggregate;
(h) Borrower may annually make and own loans, advances, or capital
contributions to The Southdown Employee Benefit Trust in an
amount actuarially determined as the amount necessary to provide
for the satisfaction of Borrower's and its Subsidiaries'
estimated health benefit claims;
(i) Borrower may make and own loans to Xxxxx-XxXxxxxxx Transport,
Inc., or its Affiliates, not otherwise permitted under this
SECTION 6.3 in an aggregate amount not to exceed Three Million
Dollars ($3,000,000) outstanding at any one time;
(j) Borrower may make and own loans to KCC not otherwise permitted
under this SECTION 6.3 in an aggregate amount not to exceed Ten
Million Dollars ($10,000,000) outstanding at any one time;
(k) Borrower and each of its Subsidiaries may make and own
Investments in investment funds that make Investments as
described in CLAUSES (I), (II), AND (III) of CLAUSE (F) above;
(l) Borrower and each of its Subsidiaries may make and own
Investments in respect of state or federal government obligations
so long as any such Investment matures within three hundred
ninety (390) days of the date of acquisition of the Investment
and, in the case of state government obligations, is issued by a
Person that on the date of acquisition of the Investment has a
rating of A-1 by Xxxxx'x or A by S&P, or better, or such
instrument is irrevocably guaranteed or backed by an irrevocable
letter of credit from the date of acquisition of the Investment
through maturity by a Person having on the date of acquisition of
the Investment a long term debt rating of no less than Aa by
Xxxxx'x or AA by S&P; and
(m) Borrower may make Investments in an aggregate amount not to
exceed Thirty Five Million Dollars ($35,000,000) to acquire the
remaining twenty-five percent (25%) partnership interest in KCC.
2.18 Clause (a) of Section 6.6 of the Credit Agreement hereby is amended in
its entirety to read as follows:
(A) LEVERAGE RATIO. Borrower shall not permit, on the final day of
any fiscal quarter ending on or after the Third Amendment Closing
Date, its Leverage Ratio, calculated based upon the four (4)
immediately preceding fiscal quarters, including the quarter then
ended, to be greater than the correlative ratios indicated below:
PERIOD RATIO
Third Amendment Closing Date
through March 31, 1999 3.00:1.00
June 30, 1999 through
December 31, 2001 2.75:1.00
March 31, 2002 through
the Maturity Date 2.50:1.00
2.19 Clause (b) of Section 6.6 of the Credit Agreement hereby is amended in
its entirety to read as follows:
(B) CONSOLIDATED TANGIBLE NET WORTH. Borrower shall not permit, as of
the Third Amendment Closing Date, its Consolidated Tangible Net
Worth to be less than Three Hundred Million Dollars
($300,000,000). Thereafter, as of the last date of each fiscal
quarter of Borrower beginning with Borrower's fiscal quarter
ended September 30, 1997, Borrower's minimum Consolidated
Tangible Net Worth requirement shall be the amount applicable to
Borrower's immediately preceding fiscal quarter (or in the case
of such determination on September 30, 1997, Three Hundred
Million Dollars ($300,000,000)) (i) increased, as of the last day
of each of its second and fourth fiscal quarters, by an amount
equal to (y) one hundred percent (100%) of Consolidated Net
Income (solely to the extent that, for any six-month period, such
number is a positive number) for such fiscal quarter and the
immediately preceding fiscal quarter), MINUS (z) the aggregate
Dollar amount of dividends paid or accrued (without duplication
of an accrual taken in any fiscal quarter prior to the
immediately preceding fiscal quarter) by Borrower on account of
its Capital Stock during such fiscal quarter or the immediately
preceding fiscal quarter; and (ii) decreased, as of the last day
of each of its fiscal quarters, by an amount equal to the
aggregate Dollar amount of Permitted Junior Payments paid or
accrued (without duplication of an accrual taken in a prior
fiscal quarter) by Borrower on account of its Capital Stock
during such fiscal quarter.
2.20 Clause (d) of Section 6.6 of the Credit Agreement hereby is amended in
its entirety to read as follows:
(D) FREE CASH FLOW RATIO. Borrower shall not permit, on the final day
of any fiscal quarter ending on or after the Third Amendment
Closing Date, its Free Cash
Flow Ratio, calculated based upon the four (4) immediately
preceding fiscal quarters, including the quarter then ended,
to be less than 1.15:1.00.
2.21 Clause (f) of Section 6.7 of the Credit Agreement hereby is amended in
its entirety to read as follows:
(f) so long as no Event of Default or Unmatured Event of Default has
occurred and is continuing and so long as no Event of Default or
Unmatured Event of Default would result therefrom, (i) Borrower
and its Subsidiaries may make and own Permitted Acquisitions and
(ii) any Permitted Acquisition may be merged or consolidated with
or into Borrower or any of its Subsidiaries so long as Borrower
or any such Subsidiary is the surviving entity of such merger or
consolidation.
2.22 Section 6.19 of the Credit Agreement hereby is amended in its entirety
to read as follows:
6.19 SUBORDINATED DEBT, PREFERRED STOCK, AND BORROWER COMMON STOCK.
Borrower shall not, and shall not cause or permit any of its
Subsidiaries to:
(a) pay, prepay, or set aside funds for the payment or prepayment of
the principal of any Subordinated Debt if an Event of Default or
Unmatured Event of Default has occurred and is continuing or if
an Event of Default or Unmatured Event of Default would result
therefrom; PROVIDED, HOWEVER, that if no Event of Default or
Unmatured Event of Default had occurred and was continuing on the
date that Borrower gives notice of such payment or prepayment, or
otherwise commences any action preliminary to making a such
payment or prepayment, Borrower shall be entitled to make such
payment or prepayment notwithstanding the occurrence or
continuation of an Event of Default or Unmatured Event of Default
(other than an Event of Default or Unmatured Event of Default
under SECTIONS 7.1(A), (C), (D), (G), (H), (I), AND (J) hereof)
as of the date such payment or prepayment is to be made;
(b) pay any amount with respect to any Subordinated Debt in violation
of the terms of the subordination provisions thereof;
(c) redeem, repurchase, or otherwise retire for value any
Subordinated Debt if an Event of Default or Unmatured Event of
Default has occurred and is continuing or if an Event of Default
or Unmatured Event of Default would result therefrom; PROVIDED,
HOWEVER, that if no Event of Default or Unmatured Event of
Default had occurred and was continuing on the date that Borrower
gives notice of redemption or otherwise commences any action
preliminary to redeeming, repurchasing, or otherwise retiring for
value any Subordinated Debt, Borrower shall be entitled to make
such redemption, repurchase, or retirement notwithstanding the
occurrence or continuation of an Event of Default or Unmatured
Event of Default (other than an Event of Default or Unmatured
Event of Default under SECTIONS 7.1(A),
(C), (D), (G), (H), (I), AND (J) hereof) as of the date such redemption,
repurchase, or retirement is to be made; and
(d) other than Permitted Junior Payments, redeem, repurchase, or
otherwise retire for value, or set aside funds for the
redemption, repurchase, or other retirement for value of any of
its Preferred Stock or the Borrower Common Stock.
ARTICLE 3
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS THIRD AMENDMENT. The
effectiveness of this Third Amendment is subject to the fulfillment, to the
satisfaction of Agent, of each of the following conditions:
3.1 the Agent shall have received a certificate from a Secretary or
Assistant Secretary of Borrower attesting to the resolutions of Borrower's board
of directors authorizing the execution and delivery of this Third Amendment;
3.2 the Agent shall have received counterparts of this Third Amendment duly
executed and delivered by Borrower and each of the Banks;
3.3 the Agent shall have received a certificate from a Responsible Officer
certifying that:
(a) the representations and warranties of Borrower contained in the
Credit Agreement and the Loan Documents, to the extent that it is
a party thereto, are true and correct in all material respects at
and as of the date of the effectiveness of this Third Amendment,
as though made on and as of such date (except to the extent that
such representations and warranties expressly relate solely to an
earlier date);
(b) neither an Event of Default nor an Unmatured Event of Default has
occurred and is continuing on the date of the effectiveness of
this Third Amendment;
(c) on the date of the effectiveness of this Third Amendment, no
Material Adverse Change has occurred, as a result of one or more
acts or occurrences; and
(d) the Credit Agreement and each of the Loan Documents are in full
force and effect; and
3.4 the Agent shall have received any fees due and owing by Borrower.
ARTICLE 4
MISCELLANEOUS
4.1 EXECUTION IN COUNTERPARTS. This Third Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original. All of such counterparts shall constitute but one and the
same instrument. Delivery of an executed counterpart of the signature pages of
this Third Amendment by telecopier shall be equally effective as delivery of a
manually executed counterpart. Any party delivering an executed counterpart of
the signature pages of this Third Amendment by telecopier thereafter also shall
deliver promptly a manually executed counterpart, but the failure to deliver
such manually executed counterpart shall not affect the validity,
enforceability, or binding effect of this Third Amendment.
4.2 EFFECTIVENESS. This Third Amendment shall be effective as of the date
hereof, subject to the fulfillment of the conditions set forth in ARTICLE 3 of
this Third Amendment.
4.3 NO OTHER AMENDMENT. Except as expressly amended hereby, the Credit
Agreement shall remain unchanged and in full force and effect. To the extent any
terms or provisions of this Third Amendment conflict with those of the Credit
Agreement, the terms and provisions of this Third Amendment shall control. This
Third Amendment shall be deemed a part of and hereby is incorporated in the
Credit Agreement.
4.4 GOVERNING LAW. This Third Amendment shall be governed by, and construed
and enforced in accordance with, the laws of the State of California.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be executed and delivered as of the date first set forth above.
SOUTHDOWN, INC.,
a Louisiana corporation
By____________________________
Title:______________________
XXXXX FARGO BANK, N.A.,
a national banking association, in its
individual capacity and as Agent
By____________________________
Title:______________________
SOCIETE GENERALE, SOUTHWEST
AGENCY
By____________________________
Title:______________________
CREDIT SUISSE FIRST BOSTON
(FORMERLY KNOWN AS CREDIT SUISSE)
By____________________________
Title:______________________
By____________________________
Title:______________________
CAISSE NATIONALE DE CREDIT
AGRICOLE
By____________________________
Title:______________________
BANQUE PARIBAS
By____________________________
Title:______________________
By____________________________
Title:______________________
CIBC INC.
By____________________________
Title:______________________
THE BANK OF NOVA SCOTIA
By____________________________
Title:______________________
BANKBOSTON, N.A.
By____________________________
Title:______________________
