EXHIBIT 4.16
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"),
dated as of June 5, 2002, is entered into among ELCOR CORPORATION a Delaware
corporation (the "Borrower"), the lenders listed on the signature pages hereof
(the "Lenders"), BANK ONE, N.A., as Documentation Agent, FIRST UNION NATIONAL
BANK, as Syndication Agent, and BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer.
BACKGROUND
A. The Borrower, the Lenders, the Documentation Agent, the
Syndication Agent, the Administrative Agent, the Swing Line lender and the L/C
Issuer are parties to that certain Credit Agreement, dated as of November 30,
2000, as amended by that certain First Amendment to Credit Agreement, dated as
of March 31, 2001 (said Credit Agreement as amended, the "Credit Agreement").
The terms defined in the Credit Agreement and not otherwise defined herein shall
be used herein as defined in the Credit Agreement.
B. The Borrower has requested an amendment to the Credit
Agreement and has notified the Administrative Agent of a proposed reduction in
the Aggregate Commitments.
C. The Lenders, the Documentation Agent, the Syndication Agent,
the Administrative Agent, the Swing Line Lender and the L/C Issuer hereby agree
to amend the Credit Agreement, subject to the terms and conditions set forth
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:
1. AMENDMENTS.
(a) Section 1.01 of the Credit Agreement is
hereby amended by adding the defined term "Private
Placement Debt" thereto in proper alphabetical
order to read as follows:
"Private Placement Debt" means that certain Indebtedness of
the Borrower in the aggregate principal amount of $120,000,000 issued
on or about June 7, 2002.
(b) Section 7.09 of the Credit Agreement is
hereby amended to read as follows:
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual
Obligation that limits the ability (a) of any Subsidiary to make
Restricted Payments to the Borrower or to otherwise transfer property
to the Borrower or (b) of the Borrower or any Subsidiary to
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create, incur, assume or suffer to exist Liens on property of such
Person, except in respect of clause (b) for such limitation under (i)
the Private Placement Debt and (ii) any Swap Contract entered into with
any Lender or any Affiliate of any Lender.
(c) Schedule 2.01 to the Credit Agreement is
hereby amended to be in the form of Schedule 2.01
to this Second Amendment and the Commitment of each
Lender and the Aggregate Commitments are hereby
reduced and amended as set forth therein.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, Company represents and
warrants that, as of the date hereof and after giving effect
to the waiver contemplated by the foregoing Section 2:
(a) the representations and warranties contained
in the Credit Agreement and the other Loan
Documents are true and correct on and as of the
date hereof as made on and as of such date;
(b) no event has occurred and is continuing
which constitutes a Default or an Event of Default;
(c) the Borrower has full power and authority to
execute and deliver this Second Amendment, and this
Second Amendment has been duly executed and
delivered by the Borrower, and this Second
Amendment and the Credit Agreement, as amended
hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable in
accordance with their respective terms, except as
enforceability may be limited by applicable debtor
relief laws and by general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law) and except as
rights to indemnity may be limited by federal or
state securities laws; and
(d) no authorization, approval, consent, or
other action by, notice to, or filing with, any
governmental authority or other Person (including
the consent of the Board of Directors of the
Borrower) is required for the execution, delivery
or performance by Company of this Second Amendment.
3. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall be
effective upon satisfaction or completion of the following:
(a) the Administrative Agent shall have received
counterparts of this Second Amendment executed by
the Required Lenders;
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(b) the Administrative Agent shall have received
counterparts of this Second Amendment executed by
the Borrower and acknowledged by each Guarantor;
(c) the Private Placement Debt shall have been
issued; and
(d) the Administrative Agent shall have
received, in form and substance satisfactory to the
Administrative Agent and its counsel, such other
documents, certificates and instruments as the
Administrative Agent shall require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Second
Amendment, each reference in the Credit Agreement
to "this Agreement", "hereunder", or words of like
import shall mean and be a reference to the Credit
Agreement, as affected and amended hereby.
(b) The Credit Agreement, as amended by the
amendments referred to above, shall remain in full
force and effect and is hereby ratified and
confirmed.
5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in
connection with the preparation, reproduction, execution and
delivery of this Second Amendment and the other instruments
and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto).
6. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each Guarantor
(a) acknowledges, consents and agrees to the execution,
delivery and performance by the Borrower of this Second
Amendment, (b) acknowledges and agrees that its obligations in
respect of its Guaranty (i) are not released, diminished,
waived, modified, impaired or affected in any manner by this
Second Amendment or any of the provisions contemplated herein,
(c) ratifies and confirms its obligations under its Guaranty,
and (d) acknowledges and agrees that it has no claims or
offsets against, or defenses or counterclaims to, its
Guaranty.
7. EXECUTION IN COUNTERPARTS. This Second Amendment may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and
all of which when taken together shall constitute but one and
the same instrument.
8. GOVERNING LAW; BINDING EFFECT. This Second Amendment shall be
governed by and construed in accordance with the laws of the
State of Texas
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applicable to agreements made and to be performed entirely
within such state, provided that each party shall retain all
rights arising under federal law, and shall be binding upon
the parties hereto and their respective successors and
assigns.
9. HEADINGS. Section headings in this Second Amendment are
included herein for convenience of reference only and shall
not constitute a part of this Second Amendment for any other
purpose.
ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SECOND
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, this Second Amendment is executed as of the date
first set forth above.
ELCOR CORPORATION
By: _____________________________________
Name: _____________________________
Title: _____________________________
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BANK OF AMERICA, N.A., as Administrative
Agent
By: _____________________________________
Name: _____________________________
Title: _____________________________
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: _____________________________________
Name: _____________________________
Title: _____________________________
6
BANK ONE, N.A., as a Lender and
Documentation Agent
By: _____________________________________
Name: _____________________________
Title: _____________________________
7
FIRST UNION NATIONAL BANK, N.A., as a
Lender and Syndication Agent
By: _____________________________________
Name: _____________________________
Title: _____________________________
8
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Lender
By: _____________________________________
Name: _____________________________
Title: _____________________________
9
THE FROST NATIONAL BANK, as a Lender
By: _____________________________________
Name: _____________________________
Title: _____________________________
10
COMERICA BANK-TEXAS, as a Lender
By: _____________________________________
Name: _____________________________
Title: _____________________________
11
COMPASS BANK, as a Lender
By: _____________________________________
Name: _____________________________
Title: _____________________________
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ACKNOWLEDGED AND AGREED TO:
ELK CORPORATION OF DALLAS
ELK CORPORATION OF TEXAS
ELK CORPORATION OF AMERICA
ELK CORPORATION OF ARKANSAS
ELK CORPORATION OF ALABAMA
By: ___________________________
Name:______________________
Title:_____________________
OEL, LTD.
CHROMIUM CORPORATION
By: ___________________________
Name:______________________
Title:_____________________
NELPA, INC.
By: ___________________________
Name:______________________
Title:_____________________
ELCOR SERVICE LIMITED PARTNERSHIP
By: ELCOR MANAGEMENT CORPORATION,
Its General Partner
By: ___________________________
Name:______________________
Title:_____________________
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ELCOR MANAGEMENT CORPORATION
By: ___________________________
Name:______________________
Title:_____________________
CYBERSHIELD OF GEORGIA, INC.
CYBERSHIELD, INC.
CYBERSHIELD INTERNATIONAL, INC.
CYBERSHIELD OF TEXAS, INC.
(formerly known as Chromium Corporation)
By: ___________________________
Name:______________________
Title:_____________________
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SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------ ---------- --------------
Bank of America, N.A. $ 22,857,142.86 22.857142857%
First Union National Bank, N.A. $ 18,571,428.57 18.571428571%
Bank One, N.A. $ 18,571,428.57 18.571428571%
Comerica Bank - Texas $ 14,285,714.29 14.285714286%
The Frost National Bank $ 11,428,571.43 11.428571429%
The Bank of Tokyo-Mitsubishi, Ltd. $ 8,571,428.57 8.571428572%
Compass Bank $ 5,714,285.71 5.714285714%
TOTAL $1,00,000,000.00 100.000000000%
