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EXHIBIT 10.35
CREDIT AGREEMENT
By and Between
XXXXX XXXXXX INCORPORATED
and
Dated as of October 1, 1998
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Table of Contents
ARTICLE I - DEFINITIONS & INTERPRETATION......................................................................... 1
1.01 ....................................................................................................... 1
1.02 NUMBER................................................................................................. 6
ARTICLE II - LOAN COMMITMENT..................................................................................... 7
2.01 COMMITMENT TO LEND..................................................................................... 7
2.02 CHANGE OF LAW.......................................................................................... 7
2.03 TERMINATION AND REDUCTION OF COMMITMENT................................................................ 7
2.04 FACILITY AND ORIGINATION FEES.......................................................................... 8
2.05 WITHHOLDING TAXES...................................................................................... 8
2.06 INCREASED COSTS........................................................................................ 9
2.07 BANK AS FOREIGN PERSON................................................................................. 9
2.08 BANK'S OBLIGATION FOR TAXES............................................................................11
2.09 CHANGE OF LENDING OFFICE...............................................................................12
ARTICLE III - REVOLVING CREDIT LOANS TO THE COMPANY..............................................................12
3.01 ADVANCES TO THE COMPANY................................................................................12
3.02 DISPOSITION OF FUNDS AND AMOUNT PAYABLE IN THE EVENT OF REFINANCING....................................15
3.03 FUNDING LOSSES.........................................................................................15
3.04 CONDITIONS TO THE INITIAL BORROWING....................................................................15
3.05 CONDITIONS TO ALL ADVANCES.............................................................................16
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................16
4.01 EXISTENCE AND RIGHTS...................................................................................16
4.02 AGREEMENT AND NOTE.....................................................................................17
4.03 NO CONFLICT............................................................................................17
4.04 LITIGATION.............................................................................................17
4.05 FINANCIAL CONDITION....................................................................................18
4.06 TITLE TO ASSETS........................................................................................18
4.07 TRADEMARKS, PATENTS....................................................................................18
4.08 MARGIN SECURITIES......................................................................................18
4.09 ERISA..................................................................................................18
4.10 INVESTMENT COMPANY ACT.................................................................................19
4.11 LABOR MATTERS..........................................................................................19
4.12 ENVIRONMENTAL LAWS.....................................................................................19
4.13 OTHER BANK AGREEMENTS..................................................................................19
ARTICLE V AFFIRMATIVE COVENANTS..................................................................................19
5.01 CORPORATE RIGHTS AND FRANCHISES........................................................................19
5.02 INSURANCE..............................................................................................20
5.03 TAXES AND OTHER LIABILITIES............................................................................20
5.04 RECORDS................................................................................................20
5.05 REPORTS BY THE COMPANY.................................................................................20
5.06 AMENDMENTS.............................................................................................22
ARTICLE VI - NEGATIVE COVENANT'S.................................................................................22
6.01 LIENS AND ENCUMBRANCES.................................................................................22
6.02 SALES OF ASSETS OR BUSINESS...........................................................................24
6.03 LIQUIDATION, DISSOLUTION, CONSOLIDATION OR MERGER.....................................................24
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ARTICLE VII - EVENT'S OF DEFAULT AND REMEDIES....................................................................25
7.01 FAILURE TO PAY NOTE, BREACH OF CERTAIN COVENANTS.......................................................25
7.02 BREACH OF REMAINING COVENANTS..........................................................................25
7.04 OTHER OBLIGATIONS......................................................................................26
7.05 INSOLVENCY; RECEIVER...................................................................................26
7.06 JUDGMENTS; ATTACHMENTS.................................................................................26
7.07 ERISA..................................................................................................27
7.08 REMEDIES...............................................................................................27
ARTICLE VIII - MISCELLANEOUS....................................................................................28
8.01 SURVIVAL...............................................................................................28
8.02 FAILURE OR INDULGENCE NOT WAIVER.......................................................................28
8.03 NOTICES................................................................................................28
8.04 APPLICABLE LAW.........................................................................................28
8.05 INTEREST LIMITATION....................................................................................28
8.06 ASSIGNMENT.............................................................................................29
8.07 COMPUTATION OF INTEREST RATES AND FEES: TIME OF PAYMENT................................................29
8.08 EXPENSES; INDEMNITY BY THE COMPANY.....................................................................30
8.09 MODIFICATIONS AND AMENDMENTS...........................................................................30
8.10 RESTRICTION ON TRANSFERS...............................................................................30
8.11 TABLE OF CONTENTS; HEADINGS............................................................................31
8.12 ARTICLES; SECTIONS.....................................................................................31
8.13 COUNTERPARTS...........................................................................................31
8.14 SURVIVAL OF AGREEMENTS.................................................................................31
8.15 SEVERABILITY...........................................................................................31
8.16 CONFIDENTIALITY........................................................................................31
8.17 CONSEQUENTIAL DAMAGES..................................................................................32
8.18 FINAL AGREEMENT........................................................................................32
EXHIBIT A FORM OF COMPANY NOTE.................................................................................. 1
EXHIBIT B BANK AND OTHER BANKS.................................................................................. 1
EXHIBIT C COMPANY REQUEST FOR ADVANCE........................................................................... 1
EXHIBIT D FORM OF OPINION OF COMPANY COUNSEL.................................................................... 1
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XXXXX XXXXXX INCORPORATED
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 1, 1998, is hereby made and
entered into by and between XXXXX XXXXXX INCORPORATED, a Delaware corporation
(the "Company" and the bank listed on the signature pages to this Credit
Agreement (the "Bank"), on the following terms and conditions:
ARTICLE I
DEFINITIONS & INTERPRETATION
1.01 For the purposes of this Agreement, unless the context
otherwise requires:
"Advance(s)" means any or all of the Eurodollar Advances and
Reference Rate Advances made to the Company by the Bank pursuant to
Section 3.01.
"Agreement" means this Credit Agreement as originally executed
or, if later amended or supplemented, then as so amended or
supplemented.
"Business Day" means any day (other than a day which is
Saturday, Sunday or a legal holiday in London, England, the State of
Texas, the State of New York, or the State within the U.S., if any,
where the Bank maintains its corporate headquarters) on which
commercial banks are open for domestic and international business in
London, England, Houston, Texas, New York, New York, and the city
within the U.S., if any, where the Bank maintains its corporate
headquarters; provided, that when used in connection with a Eurodollar
Advance, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London
interbank market.
"Commitment" means the Bank's commitment to lend an aggregate
amount not to exceed the Commitment Limit at any time outstanding
pursuant to Section 2.01 as that commitment may be reduced or
terminated pursuant to Sections 2.02, 2.03 or Article VII.
"Commitment Limit" means the dollar amount listed as the
Commitment Limit on the signature page to this Agreement.
"Control Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Company, are treated as a
single employer under Section 414(b) or 414(c) of the Internal Revenue
Code of 1986, as from time to time amended.
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"Default Rate" means a rate per annum equal to the sum of 1%
plus the Reference Rate (changing when and as the Reference Rate
changes).
"Dollars" and "$" mean the lawful currency of the United
States of America and in respect of all payments to be made in Dollars
under this Agreement mean funds that are for same day settlement in
immediately available funds through the Federal Reserve wire transfer
system (or such other United States dollar funds as may at the relevant
time be customary for the settlement of international banking
transactions denominated in United States dollars).
"Effective Date" means the date of this Agreement first
written above.
"Encumbrance" means any mortgage, deed of trust, pledge, lien,
security interest, conditional sale or other title retention agreement
or other similar encumbrance, but excluding any right of off-set or
off-set that arises by operation of law or which may be granted to a
lender in connection with credit facilities for the Company or any of
its Subsidiaries, and further excluding any encumbrance that arises by
reason of any restraining order, injunction or similar impediment or
restriction that affects the transfer of any assets.
"ERISA" means the Employee Retirement Income Security Act of
1974, as from time to time amended.
"Eurodollar Advance(s)" means loans made by the Bank to the
Company under Section 3.01 that bear interest at the Eurodollar Rate.
"Eurodollar Rate" means, in respect of each Interest Period of
each Eurodollar Advance, a rate per annum, equal to LIBOR plus the
LIBOR Margin; provided, that if the Bank incurs a reserve requirement
(as set forth below in the definition of Eurodollar Reserve Percentage)
on any day of any Interest Period and the Bank notifies the Company
within 30 days after incurring the reserve requirement that it has
incurred same, then "Eurodollar Rate" means, in respect of the portion
of the Interest Period of the Eurodollar Advance in which the reserve
requirement is in effect, a rate per annum equal to the sum of LIBOR
Margin plus the quotient obtained (rounded upwards, if necessary, to
the next higher 1/16 of 1%) by dividing (i) LIBOR by (ii) 1.00 minus
the Eurodollar Reserve Percentage in effect during the portion of the
Interest Period.
"Eurodollar Reserve Percentage" means for any day that a
Eurodollar Advance is outstanding, that percentage (expressed as a
decimal) which is in effect on the day of the applicable Interest
Period, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the reserve requirement for
the Bank in respect of "eurocurrency liabilities" (or in respect of any
other category of liabilities that includes deposits by reference to
which the interest rate on Eurodollar Advances is determined or any
category of extensions of credit or other assets that includes loans by
a non-United States office of the Bank to United States residents).
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"Event of Default" shall have the meaning attributed thereto
in Article VII.
"Facility Fee" means the fee payable to, the, Bank pursuant to
Section 2.04.
"Facility Fee Rate" means the rate per annum that shall be
used to calculate the Facility Fee and is equal to
(a) 7.5/100 of 1% if the Company has a senior
unsecured credit rating by Standard and Poors of better than
BBB+ or a senior unsecured credit rating by Xxxxx'x Investor
Services of better than Baal;
(b) 1/10 of 1% if the Company has a senior unsecured
credit rating by Standard and Poors between BBB+ and BBB-,
inclusive, or a senior unsecured credit rating by Xxxxx'x
Investor Services between Baa1 and Baa3, inclusive; or
(c) 2/10 of 1% if the Company has a senior unsecured
credit rating by Standard and Poors of less than BBB-, or a
senior unsecured credit rating by Xxxxx'x Investor Services of
less than Baa3;
provided, that the higher (better) senior unsecured credit rating
(Standard and Poors or Xxxxx'x Investor Services) shall always be
applied to determine the Facility Fee Rate, and if Standard and Poors
(or Xxxxx'x Investor Services) changes its rating designations, then
the new equivalent Standard and Poors (or Xxxxx'x Investor Services)
credit ratings shall be applied.
"GAAP" means those generally accepted accounting principles
that are in effect on the date of determination and are recognized as
such by the Financial Accounting Standards Board (or any generally
recognized successor).
"Governmental Requirement" means any law, statute, code,
ordinance, order, rule, regulation, guideline, judgment, decree,
injunction, franchise, permit, certificate, license, authorization or
other direction or requirement (including, without limitation, any of
the foregoing that relate to environmental standards or controls,
energy regulations and occupational, safety and health standards or
controls) of any (domestic or foreign) federal, state, county,
municipal parish, provincial or other government or any department,
commission, board, court, agency or any other instrumentality of any of
them.
"Interest Period" means
(a) in respect of each Eurodollar Advance made to the
Company, the period commencing on the date of the Eurodollar
Advance and ending one, three or six months thereafter (as
designated by the Company pursuant to
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Section 3.01(a)) or such other time period as may be mutually
agreed upon by the Bank and the Company, and
(b) in respect of each Reference Rate Advance made to
the Company, the period commencing on the date of the
Reference Rate Advance and ending one, three or six months
thereafter (as designated by the Company pursuant to Section
3.01(a)) or such other time period as may be mutually agreed
upon by the Bank and the Company; provided, that in each case:
(i) any Interest Period that would otherwise
end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless
by the extension it would fall in another calendar
month, in which case the Interest Period shall end on
the next preceding Business Day;
(ii) any Interest Period that begins on a
day for which there is no numerically corresponding
day in the calendar month during which the Interest
Period is to end shall, subject to the provisions of
clause (i) of this definition, end on the last day of
the calendar month;
(iii) no Interest Period shall extend beyond
the Termination Date; and
(iv) no more than ten different Interest
Periods may be outstanding at any one time.
"Lenders" means, collectively, the banks that are parties to
the Other Credit Agreements.
"Lending Office" means the office or offices of the Bank
specified as its Domestic Lending Office or Eurodollar Lending Office,
as the case may be, below, its name on the signature page hereof or
such other office or offices of the Bank as the Bank may from time to
time specify in writing to the Company, or, if the Bank fails to so
notify the Company, the Bank's Domestic Lending Office listed below its
name on the signature page hereof.
"LIBOR" means, in respect of each Interest Period of each
Eurodollar Advance, the rate per annum, quoted by the Bank at which
deposits in Dollars, in amounts comparable to the amount of the subject
Eurodollar Advance and with maturities comparable to the Interest
Period, are offered to the principal office of the Bank in London,
England (or if the Bank does not have an office in London, England, the
rate at which the deposits are offered to the principal offices of
major banks in London, England) by major banks in the interbank market
at 11:00 a.m. London time two Business Days prior to the first day of
the Interest Period (rounded upward, if necessary, to the next higher
1/16 of 1%).
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"LIBOR Margin" means the rate per annum which shall added to
determine the Eurodollar Rate and is equal to
(a) .145% if the Company has a senior unsecured
credit rating by Standard and Poors of better than BBB+ or a
senior unsecured credit rating by Xxxxx'x Investor Services of
better than Baa1;
(b) .25% if the Company has a senior unsecured credit
rating by Standard and Poors between BBB+ and BBB-, inclusive,
or a senior unsecured credit rating by Xxxxx'x Investor
Services between Baa1 and Baa3, inclusive; or
(c) .4% if the Company has a senior unsecured credit
rating by Standard and Poors of less than BBB- or a senior
unsecured credit rating by Xxxxx'x Investor Services of less
than Baa3;
provided, that, in each case, the higher (better) senior unsecured
credit rating (Standard and Poors or Xxxxx'x Investor Services) shall
always be applied to determine the LIBOR Margin, and if Standard and
Poors (or Xxxxx'x Investor Services) changes its rating designations,
then the new equivalent Standard and Poors ( or Xxxxx'x Investor
Services) credit ratings shall be applied.
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition and operations of the Company and its
Subsidiaries on a consolidated basis or (b) the validity or
enforceability of this Agreement or the Note.
"Mortgage" means any Encumbrance, excluding Permitted
Encumbrances.
"Note" means the note substantially in the form of Exhibit A
issued by the Company pursuant to Section 3.01.
"Other Bank(s)" means, collectively, the banks set forth on
Exhibit B, other than the Bank.
"Other Bank Agreement(s)" shall have the meaning attributed
thereto in Section 4.13.
"Other Credit Agreements" means, collectively, the Credit
Agreements between the Company and each bank named as a party thereto,
dated as of the Effective Date, providing for Revolving Loans to be
made available to the Company in an aggregate principal amount not to
exceed at any one time outstanding $250,000,000.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor established under ERISA.
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"Permitted Encumbrance" shall have the meaning attributed
thereto in Section 6.01.
"Person" means an individual corporation, partnership, joint
venture, trust, unincorporated organization, association, joint stock
company, government or any agency or political subdivision thereof or
any other entity.
"Plan" means each employee benefit plan or other plan
maintained by the Company or any member of the Control Group for
employees of the Company or any member of the Control Group and covered
by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code of 1986, as from time to time
amended.
"Reference Rate" means the varying rate of interest per annum
equal to the rate of interest per annum publicly announced from time to
time by Citibank, NA, New York, New York, or its successor, as its
"Base Rate" of interest, changing as and when a change in such rate
occurs; provided, that if the rate ceases or fails to be published, the
Reference Rate shall be equal to the "Prime Rate" published in the Wall
Street Journal in the Money Rates Column, as it may change from time to
time.
"Reference Rate Advance(s)" means loans made by the Bank to
the Company under Section 3.01 that bear interest at the Reference
Rate.
"Reportable Event" means any event described in Section 4043
of ERISA, but excluding Sections 4043(b)(2) and 4043(b)(3) thereof.
"Stockholders' Equity" means the excess of assets over
liabilities, in each case of the Company and its Subsidiaries on a
consolidated basis, as determined and computed in accordance with GAAP.
"Subsidiary" means, a corporation of which the Company or one
or more of its other subsidiaries of any tier own, directly or
indirectly, such number of outstanding shares as have the power
(disregarding any voting power, solely by reason of the happening of
any default, of shares of any class) to elect a majority of the Board
of Directors of such corporation.
"Taxes" means all present and future taxes, levies, imposts,
duties, fees, assessments, or charges of whatever nature (excluding
income and similar taxes) now or hereafter imposed by any governmental
authority, or any political subdivision or taxing authority thereof
together with interest thereon and penalties in respect thereof.
"Termination Date" means the date on which the Commitment
expires, which shall be five years after the Effective Date (October 1,
2003), or such earlier date as the Bank's obligation to honor its
Commitment shall have terminated under Section 2.02, Section 2.03 or
Article VII of this Agreement.
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1.02 Number. Singular terms used in this Agreement shall
include the plural, and vice versa.
ARTICLE II
LOAN COMMITMENT
2.01 Commitment to Lend. The Bank agrees, on the terms and conditions
of this Agreement and in reliance upon the representations and warranties set
forth in Article IV, to make Eurodollar Advances and Reference Rate Advances to
the Company, from time to time, from the Effective Date to but excluding the
Termination Date, at such times and in such amounts as the Company shall request
in accordance with Section 3.01, in an aggregate principal amount not to exceed
at any one time outstanding the Commitment Limit.
2.02 Change of Law. Notwithstanding any other provision herein, if any
change in any applicable Governmental Requirement or in the interpretation or
administration thereof shall make it unlawful or impossible for the Bank to
(a) honor its Commitment under Section 2.01, then the
obligation of the Bank to make Advances to the Company under Section
2.01 and the obligation of the Company to pay the Facility Fee for the
period of time subsequent thereto shall terminate, or
(b) maintain its Advances, then the aggregate principal amount
of the Bank's Advances that are then outstanding and cannot be lawfully
maintained, together with interest accrued and unpaid thereon and all
other amounts payable hereunder to the Bank in respect thereof shall be
paid, all as provided below in this Section 2.02.
Upon the occurrence of any change making it unlawful for the Bank to honor its
Commitment under Section 2.01 or maintain its Advances as aforesaid, the Bank
shall immediately notify an officer of the Company thereof by telephone (which
shall be confirmed by written notice in accordance with Section 8.03, and shall
furnish to the Company written evidence of the change. Any payment of the
principal amount of the Bank's Advances that is required under this Section 2.02
shall be made, together with accrued and unpaid interest and all other amounts
payable hereunder to the Bank in respect thereof on the earlier of
(i) the last day of the respective Interest Periods applicable
to the Advances or
(ii) such earlier date or dates required by any such
Governmental Requirement or any such interpretation or administration
thereof, provided, that the Company has been notified of the earlier
date or dates.
2.03 Termination and Reduction of Commitment. The Company may, upon at
least five Business Days' prior written notice given by the Company to the Bank,
and upon payment of
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the Facility Fee accrued through the date of such termination or reduction, at
any time wholly terminate or from time to time permanently reduce the unused
portion of the Commitment; provided, that any such partial reduction of the
Commitment must be in the amount of $1,000,000 or an integral multiple thereof.
2.04 Facility and Origination Fees.
(a) Facility Fee. The Company agrees to pay the Bank a
Facility Fee, in Dollars, equal to the Facility Fee Rate multiplied by
the daily average amount of the Commitment Limit, used and unused, as
it may exist for the period from and including the Effective Date, to
but not including the Termination Date (or such earlier date as the
Bank's obligation to honor its Commitment shall have terminated
pursuant to Sections 2.02, 2.03 or 7.08). The applicable Facility Fee
Rate shall be determined as of, and the accrued Facility Fee shall be
paid to the Bank on,
(i) the last Business Day of each March, June,
September and December, commencing with the first of those
dates which follows the Effective Date, and
(ii) the date of any early termination of the
Commitment pursuant to Sections 2.02, 2.03 or 2.08.
(b) Origination Fee. The Company agrees to pay the Bank a
one-time origination fee, in Dollars, equal to .02% of the Commitment
Limit, payable within 15 days of the Effective Date of this Agreement.
2.05 Withholding Taxes. Subject to Sections 2.07 and 2.08, if at any
time any applicable law, regulation or regulatory requirement or any
governmental authority, monetary agency or central bank enacted after the
Effective Date requires the Company to make any deduction or withholding in
respect of Taxes from any payment due under this Agreement for the account of
the Bank, the sum due from the Company in respect of such payment shall be
increased to the extent necessary to ensure that, after the making of such
deduction or withholding, the Bank receives on the due date for such payment a
net sum equal to the sum which it would have received had no such deduction or
withholding been required to be made, and the Company shall indemnify the Bank
against any losses or costs incurred by the Bank by reason of any failure of the
Company to make any such deduction or withholding or by reason of any increased
payment not being made on the due date for such payment, except to the extent
the same arise by reason of a transfer, sale, or assignment of the Note. The
Company shall promptly deliver to the Bank any receipts, certificates or other
proof evidencing the amounts (if any) paid or payable in respect of any
deduction or withholding as aforesaid. If the Bank should, in connection with
any payment made by the Company pursuant to this Section 2.05, receive any
offsetting tax credit or obtain any similar tax benefit which may reasonably be
applied to the benefit of the Company, the Bank will in a timely manner
reimburse the Company an amount equal to the amount of such credit or benefit
after deducting any expenses reasonably and properly attributable thereto. The
Bank agrees to use its reasonable efforts to obtain any such tax credit or
similar tax benefit. If any such tax credit or benefit, the amount of which has
been
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reimbursed to the Company, is subsequently disallowed in whole or in part by the
appropriate taxation authorities, the Company agrees to repay on demand to the
Bank the amount of credit or benefit so reimbursed to the Company and
subsequently disallowed.
2.06 Increased Costs. Without duplication of any amounts otherwise
payable under this Agreement, the Company agrees to reimburse the Bank, within
ten days after receipt of written notice from the Bank, for any increase in its
cost or decrease in its effective rate of return incurred after the Effective
Date hereof (which shall include, but not be limited to, taxes (other than
income or similar taxes), fees, charges or reserves) directly or indirectly
resulting from the making of any Advances to the Company or maintaining of its
Commitment, and arising as a result of:
(a) any change after the Effective Date in any Governmental
Requirement or the interpretation thereof by any governmental
authority, court, bureau or agency charged with the administration or
interpretation thereof (whether or not having the force of law); or
(b) any capital or similar requirements imposed on the Bank or
any corporation controlling the Bank against assets or liabilities (or
against any class thereof or any required change in the amount thereof)
of, or commitments or extensions of credit by, the Bank (including,
without limitation, the Bank's obligation to make Advances hereunder);
except to the extent the same arise by reason of a transfer, sale or assignment
of the Note. Such reimbursement shall be made to the Bank within ten days after
the receipt by the Company of notice from the Bank setting forth the nature and
amount of such loss, decrease in its effective rate of return, or expense and an
explanation as to how such amounts were calculated by the Bank, said notice to
be conclusive and binding in the absence of manifest error. The Company will pay
all amounts required pursuant to this Section 2.06 to the Bank in immediately
available funds.
2.07 Bank as Foreign Person. If the Bank is a foreign Person (i.e., a
Person other than a United States Person for United States federal income tax
purposes), then the Bank hereby agrees that:
(a) it shall on or prior to the Effective Date deliver to the
Company one original of the following:
(i) if any Lending Office is located in the United
States of America, accurate and complete signed copies of IRS
Form 4224 or any successor thereto ("Form 4224") and IRS Form
W-9 or any successor thereto ("Form W-9"); or
(ii) if any Lending Office is located outside the
United States of America, accurate and complete signed copies
of IRS Form 1001 or any successor thereto ("Form 1001") and
IRS Form W-8 or any successor thereto ("Form W-8");
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in each case, indicating that the Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of the Lending Office or Lending Offices under this
Agreement free from withholding of United States Federal income tax;
(b) if at any time the Bank changes its Lending Office or
Lending Offices or selects an additional Lending Office, it shall at
the same time, but only to the extent the forms previously delivered by
it hereunder are no longer effective, deliver to the Company one
original, in replacement for the forms previously delivered by it
hereunder:
(i) if such changed or additional Lending Office is
located in the United States of America, accurate and complete
signed originals of Form 4224 and Form W-9; or
(ii) otherwise, accurate and complete signed
originals of Form 1001 and Form W-8;
in each case, indicating that the Bank is on the date of delivery
thereof entitled to receive payments of principal, interest and fees
for the account of such changed or additional Lending Office under this
Agreement free from withholding of United States federal income tax;
(c) it shall, upon the occurrence of any event (including the
passing of time, but excluding any event mentioned in Section 2.07(b))
requiring a change in the most recent Form 4224, Form W-9, Form 1001 or
Form W-8 previously delivered by the Bank, deliver to the Company one
original accurate and complete signed copies of Form 4224, Form W-9,
Form 1001 or Form W-8 in replacement for the forms previously delivered
by the Bank;
(d) it shall promptly upon the request of the Company, deliver
to the Company such other forms or similar documentation as may be
required from time to time by any applicable law, treaty, rule or
regulation in order to establish the Bank's tax status for withholding
purposes;
(e) if the Company claims exemption from withholding tax under
a United States tax treaty by providing a Form 1001 and the Bank sells
or grants a participation of all or part of its rights under this
Agreement, it shall notify the Company of the percentage amount in
which it is no longer the beneficial owner under this Agreement. To the
extent of this percentage amount, the Company shall treat the Bank's
Form 1001 as no longer applicable for purposes of this Section 2.07. If
the Bank is claiming exemption from United States withholding tax by
filing Form 4224 with the Company, and sells or grants a participation
in its rights under this Agreement, the Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Code; and
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(f) if the IRS or any authority of the United States of
America or other jurisdiction asserts a claim that the Company did not
properly withhold tax from amounts paid to or for the account of the
Bank (because the appropriate form was not delivered, was not properly
executed, or because the Bank failed to notify the Company of a change
in circumstances that rendered the exemption from withholding tax
ineffective), the Bank shall indemnify the Company fully for all
amounts paid, directly or indirectly, by the Company, as tax or
otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable by the Company under
Sections 2.05 and 2.06 together with all costs, expenses and reasonable
attorneys' fees (including the allocated cost of in-house counsel).
Without limiting or restricting the Bank's right to increased amounts under
Sections 2.05 and 2.06 from the Company upon satisfaction of the Bank's
obligations under the provisions of this Section 2.07, if the Bank is a foreign
Person and is entitled to a reduction in the applicable withholding tax, the
Company may withhold from any interest to the Bank an amount equivalent to the
applicable withholding tax after taking into account such reduction. If the
forms or other documentation required by Section 2.07(a) are not delivered to
the Company, then the Company may withhold from any interest payment to the Bank
an amount equivalent to the applicable withholding tax. In addition, the Company
may also withhold against periodic payments other than interest payments to the
extent United States withholding tax is not eliminated by obtaining Form 4224 or
Form 1001.
2.08 Bank's Obligation for Taxes. Notwithstanding anything to the
contrary contained herein, the Company shall not be required to pay any
additional amounts in respect of United States federal income tax pursuant to
Sections 2.05 or 2.06 to the Bank for the account of any Lending Office of the
Bank:
(a) if the obligation to pay such additional amounts would not
have arisen but for a failure by the Bank to comply with its
obligations under Section 2.07 in respect of such Lending Office;
(b) if the Bank shall have delivered to the Company a Form
4224 and a Form W-9 in respect of such Lending Office pursuant to
Sections 2.07(a)(i), 2.07(b)(i) or 2.07(c) and the Bank shall not at
any time be entitled to exemption from deduction or withholding of
United States federal income tax in respect of payments by the Company
hereunder for the account of such Lending Office for any reason other
than a change in United States law or regulations or in the official
interpretation of such law or regulations by any governmental authority
charged with the interpretation or administration thereof (whether or
not having the force of law) after the date of delivery of such Form
4224 and Form W-9; or
(c) if the Bank shall have delivered to the Company a Form
1001 and a Form W-8 in respect of such Lending Office pursuant to
Sections 2.07(a)(ii), 2.07(b)(ii), or 2.07(c) and the Bank shall not at
any time be entitled to exemption from deduction or withholding of
United States federal income tax in respect of payments by the Company
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hereunder for the account of such Lending Office for any reason other
than a change in United States law or regulations or any applicable tax
treaty or regulations or in the official interpretation of any such
law, treaty or regulations by any governmental authority charged with
the interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form 1001 and Form
W-8;
then, any and all present or future Taxes and related liabilities (including
penalties, interest, additions to tax and expenses) which are not required to be
paid by the Company pursuant to Sections 2.05 and 2.06 shall be paid by the
Bank, and the Bank agrees to indemnify and hold the Company harmless from the
same.
2.09 Change of Lending Office. The Bank agrees that upon the occurrence
of any event giving rise to the payment of taxes or withholding pursuant to
Sections 2.05 or 2.06, it will if so requested by the Company, use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Lending Office for any Advances affected
by such event with the object of avoiding the consequence of the event giving
rise to the payment of taxes or withholding pursuant to those Sections;
provided, that such designation would not, in the judgment of the Bank, be
otherwise disadvantageous to the Bank. Nothing in this Section 2.09 shall affect
or postpone any of the obligations of the Company or the right of the Bank
provided in Sections 2.05 or 2.06.
ARTICLE III
REVOLVING CREDIT LOANS TO THE COMPANY
3.01 Advances to the Company. Subject to the terms and conditions of
this Agreement, the Company may from time to time borrow under this Section
3.01, pay pursuant to this Section 3.01 and reborrow under this Section 3.01.
Each Advance made to the Company and payment thereof shall be in Dollars in an
aggregate principal amount of not less than $1,000,000. All Advances to the
Company shall be subject to the provisions of Section 3.01(a) through 3.01(g).
(a) Manner of Borrowing. The Company shall give the Bank, not
later than 10:00 A.M. (Houston, Texas time) three Business Days prior
to the drawdown date in the case of a Eurodollar Advance and not later
than 10:00 A.M. (Houston, Texas time) on the drawdown date in the case
of a Reference Rate Advance, irrevocable notice (effective upon
receipt), substantially in the form of Exhibit C, of each requested
Advance to be made to the Company specifically
(i) the amount of the requested Advance,
(ii) the drawdown date of the requested Advance
(which shall be a Business Day),
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(iii) whether the Advance is to be comprised of
Eurodollar Advances or Reference Rate Advances, and
(iv) the term of the Interest Period for the Advance,
provided that if the Company fails to specify the duration of
the term, the Interest Period for such Advance shall be three
months.
If the Advance will be a Eurodollar Advance, the Bank shall notify the
Company of the Eurodollar Rate by no later than 11:00 A.M. (Houston,
Texas time) one Business Day prior to the drawdown date specified for
the Advance. If the Advance will be a Reference Rate Advance, the Bank
shall notify the Company of the Reference Rate by not later than 11:30
A.M. (Houston, Texas time) on the drawdown date specified for the
Advance.
(b) Manner of Making Funds Available. The Bank, not later than
12:00 noon Houston, Texas time, on the drawdown date specified for the
Advance, shall make the Advance available to the Company by
transferring in immediately available funds the amount of the Advance
to Chase Bank of Texas, National Association, 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000-0000, ABA #000000000 for credit to the Company's
account #00100139733 or to such other bank or account as the Company
shall designate to the Bank in writing.
(c) Payment of Principal. The Company hereby promises to pay
to the Bank the principal of each Advance made to the Company on the
last day of the Interest Period applicable to the Advance. The Company
shall have the right, at any time and from time to time, to prepay, in
whole or in part, any Advance by giving Bank not less than
(i) three Business Days prior written notice in the
case of a prepayment of a Eurodollar Advance; and
(ii) one Business Day prior written notice in the
case of a Reference Rate Advance;
together with accrued interest to the date of the prepayment on the
principal amount prepaid; provided, that each partial prepayment of
principal shall be in an integral multiple of $1,000,000 and further
provided that the Company shall. be required to pay reasonable costs
and losses incurred by the Bank as a result of the Company prepaying
any Eurodollar Advance, pursuant to Section 3.03.
(d) Payment of Interest. The Company hereby promises to the
Bank accrued but unpaid interest on the principal amount of each
Advance made to the Company, from the date of the Advance until the
principal amount of the Advance shall be paid in full
(i) at the Eurodollar Rate for Eurodollar Advances;
and
(ii) at the Reference Rate for Reference Rate
Advances;
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payable on the last day of the Interest Period applicable to the
Advance and, if the Interest Period is longer than six months, also on
each six-month anniversary of the making of the Advance; provided, that
any amount of such principal and, to the extent permitted by law, any
interest thereon which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest from the
date on which such amount is due until the amount is paid in full,
payable on demand, at the Default Rate.
(e) Currency of Payment. All payments of principal of, and
interest on, Advances shall be made in Dollars.
(f) Note. All Advances that the Bank makes to the Company
shall be evidenced by a Note substantially in the form attached hereto
as Exhibit A with appropriate insertions, payable to the order of the
Bank, dated the Effective Date, maturing on the Termination Date and
bearing interest from the Effective Date on the unpaid principal amount
thereof from time to time outstanding at the rates provided for in this
Agreement. The Bank shall record and endorse on the Note all
transactions in the space provided thereon, which recordation and
endorsement, absent manifest error, shall be prima facie evidence of
Advances made to the Company and payments thereon; provided, that the
Bank's failure to make recordation and endorsement shall not limit or
otherwise affect the obligations of the Company hereunder or under the
Note and payments of principal of, and interest on, the Note by the
Company shall not be affected by the failure to make any such
recordation and endorsement thereof on the Note. Although the Note
shall be dated the Effective Date, interest in respect thereof shall be
payable only for the periods during which the Advances evidenced
thereby are outstanding and then only with respect to those Advances.
(g) Available London Interbank Rate. Notwithstanding anything
herein to the contrary, if with respect to any proposed Eurodollar
Advance to the Company, the Bank determines that
(i) for any reason whatsoever the rates for the
offering of Dollars for deposit in the London interbank market
in immediately available funds in an amount and for a period
comparable to the scheduled maturity of the Eurodollar Advance
are not being offered to the Bank in the London interbank
market or
(ii) the rates offered for purposes of computing the
rate of interest on the requested Eurodollar Advance do not
accurately reflect the cost to the Bank of making the
Eurodollar Advance,
then the Bank shall notify an officer of the Company immediately by
telephone (which shall be promptly confirmed by written notice in
accordance with Section 8.03) and so long as the failure to offer those
rates continue or the rates fail to accurately reflect costs to the
Bank, the Bank shall be under no obligation to make the Eurodollar
Advance under this Agreement; provided, that the Company shall have the
option to elect to have the
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Advance changed to a Reference Rate Advance by giving the Bank notice
at any time prior to 11:00 a.m. (Houston, Texas time) on the date of
the proposed Advance.
3.02 Disposition of Funds and Amount Payable in the Event of
Refinancing. If the Bank makes a new Advance to the Company hereunder on a day
on which the Company is to pay all or any part of an outstanding Advance,
(a) the Bank shall apply the proceeds of the new Advance to
make the payment;
(b) the Bank shall make available to the Company as provided
in Section 3.01(b) only an amount equal to the excess, if any, of the
amount the Company borrows over the amount the Bank applies to make the
payment; and
(c) the Company shall pay the Bank on that day an amount
equal to only the excess, if any, of the amount payable by the Company
to the Bank on that day over the amount the Bank applies to make the
payment.
3.03 Funding Losses. The Company shall pay to the Bank upon written
request (which request shall set forth in reasonable detail the basis for the
request), an amount that shall be sufficient (in the reasonable opinion of the
Bank) to reasonably compensate the Bank for any loss or expense (other than the
loss of margin) incurred by the Bank as a result of:
(a) any Company prepayment of any Eurodollar Advance made to
the Company on a date other than the last day of the Interest Period
applicable thereto (except payments made in accordance with Section
2.02), or
(b) any Company failure to borrow an Advance on the date
scheduled for the borrowing pursuant to Section 3.01 except a failure
to borrow a requested Eurodollar Advance following the occurrence of
one of the events set forth in Section 3.0l(g) whether because of any
Event of Default by the Company or otherwise.
3.04 Conditions to the Initial Borrowing. The Bank's obligation to make
its initial Advance to the Company is subject to the conditions precedent that
the Bank shall have received:
(a) Note. In the case of the initial Advance to the Company,
the Note drawn to the order of the Bank complying with the provisions
of Section 3.01.
(b) Authorized Signatories of the Company. A certificate of
the Secretary or an Assistant Secretary of the Company that shall
certify the names of the officers of the Company authorized to sign
this Agreement, the Note and any other document related to this
Agreement, together with the true specimen signatures of those
officers. The Bank may conclusively rely upon that certificate unless
it receives written evidence to the contrary.
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(c) Evidence of Corporate Action of the Company. Certified
copies of the requisite corporate action that the Company takes to
authorize this Agreement, the Note and the borrowings by the Company
hereunder, and such other papers as the Bank shall reasonably require.
(d) Opinion of Company. Opinion of the General Counsel or
Deputy General Counsel of the Company in substantially the form set
forth in Exhibit D.
(e) Certificate of the Company. A certificate dated the date
of the Advance and signed by an authorized executive or financial
officer of the Company stating that the representations and warranties
of the Company contained in Article IV are true and correct as of the
date thereof and that no Event of Default, or event which with the
giving of notice or lapse of time or both would constitute an Event of
Default, has occurred and is continuing.
3.05 Conditions To All Advances. The Bank's obligation to make each
Advance to the Company is subject to the conditions precedent that on the date
of the Advance:
(a) Notice. The Bank shall have received the applicable notice
that Section 3.01 requires.
(b) Compliance with Agreement. The Company shall have
complied, and shall then be in compliance with, all the terms,
covenants and conditions of this Agreement that are binding upon it.
(c) No Default. There shall exist or result from the Advance
no Event of Default and no event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default.
(d) Accuracy of Representations and Warranties. The Company's
representations and warranties in Article IV shall be true with the
same effect as though the representations and warranties had been made
at the time of the Advance. In the case of each Advance to the Company
hereunder, each Company notice or request to the Bank to make each
borrowing shall be deemed to be a representation and warranty to the
foregoing effects in this Section 3.05(d).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.01 Existence and Rights. The Company
(a) is duly organized, validly existing and in good standing
under the laws of the State of Delaware,
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(b) has all necessary corporate power to own its properties
and to carry on its businesses as now conducted and
(c) is duly qualified and in good standing (to the extent
those concepts are applicable) in each United States jurisdiction that
requires qualification and in which the character of the properties
owned by it or the conduct of its business therein makes the
qualification necessary, except where the failure to so qualify would
not have a Material Adverse Effect.
The Company has all necessary corporate power and authority to make and carry
out this Agreement and to issue and deliver and perform the Note as herein
provided.
4.02 Agreement and Note. The Company's execution, delivery and
performance of this Agreement and the Note have been duly authorized by all
necessary corporate action and do not require the consent or approval of any
governmental body or other regulatory authority, are not in contravention of or
in conflict with any law or regulation applicable to the Company or any term or
provision of the charter or bylaws of the Company. This Agreement is, and the
Note when delivered for value received will be, the valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
as such enforceability may be
(i) limited by the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws from time to time in effect and judicial decisions
relating to or affecting the enforceability of creditors' rights and
debtor's obligations generally, and
(ii) subject to the effect of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
4.03 No Conflict. The Company's execution, delivery and performance of
this Agreement and the Note are not in contravention of, or in conflict with,
any material agreement, indenture, undertaking or Governmental Requirement to
which the Company or any of its Subsidiaries is a party or by which any of them
or any of their property is subject, and do not cause any Mortgage to be created
or imposed upon any such property, except pursuant to the terms of this
Agreement.
4.04 Litigation. There are no proceedings pending or, so far as the
officers of the Company know, threatened before any court, administrative agency
or arbitration panel that, in the reasonable opinion of the officers of the
Company, are expected to have a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries is in material default with respect to any order, writ,
injunction or decree of any court or other governmental or regulatory authority
which, in the opinion of the officers of the Company, is expected to have a
Material Adverse Effect.
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4.05 Financial Condition. The consolidated balance sheet of the Company
and its Subsidiaries as of September 30, 1997 and the related consolidated
statement of income for the fiscal year then ended, covered by the opinion of
Deloitte & Touche L.L.P., and the unaudited consolidated balance sheet of the
Company and its Subsidiaries as of June 30, 1998 and the related unaudited
consolidated statement of income for the quarter then ended, in both cases as
heretofore delivered to the Bank, present fairly the financial position of the
Company and its consolidated Subsidiaries as of the respective dates of those
balance sheets and the results of their operations for the respective periods
then ended and have been prepared in accordance with GAAP; provided, that the
balance sheet as of June 30, 1998 and the statement of income for the quarter
then ended are subject to normal year-end adjustments and lack footnotes and
other presentation items. There were no material liabilities, direct or
indirect, fixed or contingent, of the Company or any of its consolidated
Subsidiaries as of the date of the June 30, 1998 balance sheet that are not
reflected therein or in the notes thereto. Other than as has been previously
disclosed to the Bank in writing through the date hereof (including through the
delivery of filings made with the U.S. Securities and Exchange Commission),
there has been since June 30, 1998 no material adverse change in the financial
condition and operations of the Company and its Subsidiaries on a consolidated
basis.
4.06 Title to Assets. The Company and its Subsidiaries have sufficient
title to their respective assets to enable them to conduct their business, and
those assets are subject to no Mortgage not permitted by Section 6.01, except
where the failure to have such title would not have a Material Adverse Effect.
4.07 Trademarks, Patents. The Company and each of its Subsidiaries as
of the date hereof possess all necessary trademarks, copyrights, patents, patent
rights and licenses to conduct their respective businesses as now operated,
without any known material infringement of valid trademarks, trade names,
copyrights, patents or license rights of others, except to the extent that the
failure of the foregoing would not have a Material Adverse Effect.
4.08 Margin Securities. The Company is not incurring the indebtedness
evidenced by the Note hereunder for the purpose, directly or indirectly, of
purchasing or carrying any "margin stock" as that term is defined in Regulations
U and X of the Board of Governors of the Federal Reserve System, as amended from
time to time. Neither the Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock.
4.09 ERISA. Neither the Company nor any member of the Control Group has
incurred any material accumulated funding deficiency within the meaning of
Section 412 of the Internal Revenue Code of 1986, as from time to time amended,
or has incurred any material liability to the PBGC under Title IV of ERISA in
connection with any Plan or other class of benefit that the PBGC has elected to
insure. No Reportable Event has occurred with respect to any Plan that would
have a Material Adverse Effect.
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4.10 Investment Company Act. The Company is not an "investment company"
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
4.11 Labor Matters. There are no strikes or other labor disputes
pending, or to the knowledge of Company threatened, against the Company or any
of its Subsidiaries that would have a Material Adverse Effect.
4.12 Environmental Laws. Except as may have been previously disclosed
to the Bank or may be disclosed in any information furnished by the Company to
the Bank pursuant to Section 5.05, the Company and its Subsidiaries are in
compliance with all environmental health, and safety laws applicable to the
Company and its Subsidiaries, and their respective operations and properties,
except to the extent that such non-compliance would not have a Material Adverse
Effect.
4.13 Other Bank Agreements. Substantially concurrently with or prior to
the execution of this Agreement by the Company and the Bank, the Company is
executing with each of the Other Banks a substantively identical (other than
with respect to the amount of the Commitment) form of this Agreement (each an
"Other Bank Agreement"), except that the Other Bank Agreement between the
Company and Revolving Commitment Vehicle Corporation ("RCV") will permit the
Company to pay a reduced Facility Fee to RCV and will require the Company to
permit (a) Xxxxxx Guaranty Trust Company of New York ("Xxxxxx") to assume the
obligations of RCV, and (b) RCV to assign its rights to Xxxxxx, under the Other
Credit Agreement between RCV and the Company, under certain circumstances.
ARTICLE V
AFFIRMATIVE COVENANTS
Unless the Bank shall otherwise consent in writing, it is agreed that,
so long as any credit hereunder shall be available and until payment in full of
the Note:
5.01 Corporate Rights and Franchises. The Company will, and will cause
each of its Subsidiaries to, except as may be otherwise permitted by the
provisions of Sections 6.02 and 6.03,
(i) maintain and preserve its corporate, partnership or other
existence and all rights, franchises and other authority necessary for
the conduct of its business unless, in the judgment of management of
the Company, the preservation thereof is no longer desirable to the
conduct of the business of the Company and its Subsidiaries taken as a
whole and the loss thereof is not disadvantageous in any material
respect to the Bank, and
(ii) maintain its properties, equipment and facilities in good
working order and repair and conduct its business in an orderly manner
without voluntary interruption
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unless, in the judgment of management of the Company, those activities
are no longer desirable to the conduct of the Company's business and
the discontinuance thereof is not disadvantageous in any material
respect to the Bank.
5.02 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain with responsible insurance carriers liability,
property damage and workers compensation insurance coverage in such amounts and
with such deductibles and retentions as the management of the Company considers
reasonable.
5.03 Taxes and Other Liabilities. The Company will, and will cause each
of its Subsidiaries to, pay and discharge, before the same become delinquent and
before penalties accrue thereon, all taxes, assessments and governmental charges
upon or against it or any of its properties, and all its other liabilities at
any time existing which, if unpaid, might by law become a Mortgage on a material
portion of its property, except to the extent that and so long as:
(a) the same are being contested in good faith and by
appropriate proceedings in such manner as not to cause any Material
Adverse Effect or the loss of any material right of redemption from any
sale thereunder; and
(b) it shall have set aside on its books reserves (segregated
in accordance with GAAP) deemed by it adequate with respect thereto.
5.04 Records. The Company will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting in accordance with GAAP and
permit representatives of the Bank to have reasonable access to, and to examine
the properties and publicly available information of, the Company and its
Subsidiaries at all reasonable times.
5.05 Reports by the Company. The Company will furnish the Bank:
(a) As soon as available, and in any event within 45 days
after the close of each of the first three quarters of each fiscal year
of the Company, commencing with the quarter next ending following the
Effective Date, a copy of its Quarterly Report on Form 10-Q for the
quarter as filed with the U.S. Securities and Exchange Commission.
(b) As soon as available, and in any event within one 120 days
after the close of each fiscal year of the Company ending following the
Effective Date:
(i) a balance sheet of the Company and its
consolidated Subsidiaries as of the end of the fiscal year and
the related income statement and statement of changes in cash
flows of the Company and its consolidated Subsidiaries for the
fiscal year then ended, in reasonable detail in accordance
with GAAP and stating, when appropriate, in comparative form
the corresponding figures for the previous fiscal year,
together with a signed opinion of Deloitte & Touche L.L.P. (or
other independent certified public accountants reasonably
satisfactory to the Bank) based on an audit using generally
accepted auditing standards, certifying that the
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financial statements present fairly the financial position of
the Company and its consolidated Subsidiaries as of the end of
the fiscal year and the results of their consolidated
operations for the fiscal year then ended, which opinion shall
not contain any material qualification or exception not
reasonably satisfactory to the Bank, and
(ii) a certificate of those accountants stating that
in the course of their examination they became aware of
nothing of an accounting nature that would indicate the
occurrence of an Event of Default or the occurrence of any
event which, upon the lapse of time or the giving of notice,
or both, would constitute an Event of Default, or, if such is
not the case, stating the facts with respect thereto.
(c) As soon as possible, and in any event within 45 days after
the close of each of the first three quarters of each fiscal year of
the Company, and 90 days after the close of each fiscal year of the
Company, commencing with the quarter next ending following the
Effective Date, a certificate of the Chief Financial Officer, Vice
President-Finance, Treasurer or Assistant Treasurer of the Company, any
one acting alone, stating that the Company has performed and observed
each and every covenant contained in this Agreement to be performed by
it and that no event has occurred and no condition then exists which
constitutes an Event of Default or would constitute an Event of Default
upon the lapse of time or upon the giving of notice or both, or, if any
such event has occurred or any such condition exists, specifying the
nature thereof and the action which the Company proposes to take with
respect thereto.
(d) Such other publicly available information of the Company
as the Bank may from time to time reasonably request, within a
reasonable period of time following the request.
(e) Within ten Business Days after the same are known, written
notice of the following:
(i) Each Event of Default or event which, with the
giving of notice or lapse of time or both, would constitute an
Event of Default.
(ii) Any other matter that has resulted or may or
might have resulted in a Material Adverse Effect, including,
copies of any detailed report or "management letter" submitted
by independent certified public accountants relating thereto.
(iii) All Events of Default under any notes,
debentures, other evidences of indebtedness or preferred
stock, or under any indenture, mortgage, deed of trust or
other agreement relating to any evidence of indebtedness
including, any Other Bank Agreement, for which the Company or
any Subsidiary is liable, including the occurrence of any
event which upon the lapse of time or giving of notice or both
would constitute such a default, if those events or the
exercise of any remedies arising therefrom would have a
Material Adverse Effect.
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(iv) The occurrence of any Reportable Event with
respect to any Plan, together with the statement of the Chief
Financial Officer, Vice President - Finance, Treasurer, or
Assistant Treasurer of the Company setting forth the details
as to the Reportable Event and the action that the Company
proposes to take, if any, with respect thereto.
(v) Any material modification or amendment to, or
termination of, any of the Other Bank Agreements.
(vi) If at any time the value of all "margin stock"
(as defined in Regulation U of the Board of Governors of the
Federal Reserve System, amended from time to time) owned by
the Company and its Subsidiaries exceeds 25% of the value of
the assets of the Company and its Subsidiaries, on a
consolidated basis, as reasonably determined by the Company.
5.06 Amendments. The Company agrees that it will not amend any of the
Other Bank Agreements on terms materially more favorable to any Other Bank than
the terms in this Agreement unless the Company and the Bank also agree to the
same terms as amended. For the avoidance of doubt, the Bank acknowledges that
the Company may terminate any of the Other Bank Agreements or terminate or
reduce the commitment of any of the Other Banks pursuant to any Other Bank
Agreement without the requirement of having to terminate this Agreement or
terminate or reduce the Commitment or the Commitment Limit hereunder.
ARTICLE VI
NEGATIVE COVENANTS
Unless the Bank otherwise consents in writing, the Company agrees that
so long as any credit hereunder shall be available and until payment in full of
the Note, the Company will not do, or permit any of its Subsidiaries to do, any
of the following:
6.01 Liens and Encumbrances. Create, incur, assume or permit to exist
any Mortgage affecting the assets of the Company or any Subsidiary except the
following (herein being collectively called "Permitted Encumbrances"):
(a) Encumbrances simultaneously created in favor of (i) the
Bank and the Other Banks, on a pari passu basis, to secure the
indebtedness (up to an aggregate of $750,000,000) under this Agreement
and the Other Bank Agreements and (ii) the Lenders, on a pari passu
basis, to secure the indebtedness (up to an aggregate of $250,000,000)
under the Other Credit Agreements;
(b) Encumbrances existing as of the date hereof and any and
all extensions, renewals
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or refinancings of any of the foregoing (provided that the extensions,
renewals or refinancings do not increase the outstanding aggregate
principal amount of indebtedness secured by those Encumbrances);
(c) Encumbrances upon any materials, supplies, tools, articles
or other things acquired or manufactured in connection with the
performance of contracts with the United States of America or any
department or agency thereof to secure partial progress or other
payments or performance under those contracts;
(d) Encumbrances against assets which
(i) existed when the assets were acquired by the
Company or the Subsidiary or
(ii) were owned by an entity which, subsequent to the
date hereof, becomes a Subsidiary, and the Encumbrance is in
existence at the time the entity becomes a Subsidiary
and which, in the case of each of Sections 6.01(d)(i) and (ii)
(A) do not attach to assets other than those
encumbered at the time of the acquisition or transaction
resulting in the entity becoming a Subsidiary and
(B) were not created in contemplation of the
acquisition or transaction resulting in the entity becoming a
Subsidiary;
(e) Mechanics', workmen's, materialmen's, landlord's,
carriers', repairmen's, construction and other similar Encumbrances
arising in the ordinary course of business in respect of obligations
not delinquent or which are being contested in good faith;
(f) Encumbrances in connection with worker's compensation,
unemployment insurance or other social security obligations;
(g) Encumbrances securing bids, tenders, contracts (other than
contracts for the payment of money), leases, statutory obligations,
surety, appeal and customs bonds and other obligations of like nature,
and other Encumbrances arising by operation of law in respect of the
providing of goods or services, arising in the ordinary course of
business;
(h) Encumbrances on any property that the Company or the
Subsidiary hereafter acquires that are created contemporaneously with
the acquisition to secure or provide for the payment or financing of
any part of the purchase price thereof; provided, that:
(i) the obligation thereby secured consists primarily
of the unpaid balance of the purchase price of the property
(including improvements existing or to be constructed) that
the Company or the Subsidiary acquires;
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(ii) the unpaid purchase price so secured does not
exceed 90% of the total purchase price of the property being
acquired; and
(iii) any such Encumbrance does not extend to, or
otherwise affect or apply to, property other than that being
so acquired;
(i) Encumbrances on any property of a Subsidiary in favor of
the Company or any other Subsidiary that the Company directly or
indirectly wholly owns (except for directors' or other qualifying
shares);
(j) Encumbrances for taxes, assessments or other governmental
charges or levies (i) which are not yet due or (ii) which are due so
long as the Company or the Subsidiary is contesting the validity
thereof in good faith and by appropriate proceedings so as not to cause
any Material Adverse Effect and has set aside on its books reserves
(segregated in accordance with GAAP) deemed by it adequate with respect
thereto;
(k) Any right of set-off granted to any lending institution in
connection with that lending institution providing cash management
services or other financings to the Company and any of its
Subsidiaries; and
(1) Any other Encumbrances; provided, that the aggregate claim
secured by the other Encumbrances (excluding those Encumbrances
otherwise permitted pursuant to this Section 6.01) shall not exceed 10%
of Stockholders Equity.
6.02 Sales of Assets or Business. Other than sales or dispositions by a
Subsidiary to the Company or another Subsidiary or by the Company to a
Subsidiary, or sales in the ordinary course of business, the Company shall not
sell, lease or otherwise dispose of its assets, business or stock or other
investment in any Subsidiary having a value, in each case, in excess of
$25,000,000 unless the Board of Directors of the Company determines that the
sale, lease or other disposition thereof
(a) is in the best interest of the Company and its
Subsidiaries taken as a whole, and
(b) will not significantly adversely affect the Company's
ability to meet its financial obligations as they become due.
6.03 Liquidation, Dissolution, Consolidation or Merger. Liquidate,
dissolve or enter into any consolidation or merger unless:
(a) in the case of a consolidation or merger
(i) involving the Company, the Company will be the
surviving corporation, and
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(ii) involving a Subsidiary,
(A) a Subsidiary will be the surviving
entity,
(B) the fair market value of the Company's
investment in such Subsidiary is less than
$25,000,000, or
(C) the fair market value of the Company's
investment in the Subsidiary is $25,000,000 or
greater and the Board of Directors of the Company
determines that the preservation thereof is no longer
desirable to the business of the Company and its
Subsidiaries taken as a whole and that the absence
thereof will not significantly adversely affect the
Company's ability to meet its financial obligations
as they become due; and
(b) After giving effect to any such merger or consolidation,
there will exist neither an Event of Default nor any event which, upon
the giving of notice of lapse of time or both would constitute such an
Event of Default.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
The occurrence of any one or more of the following events described in
Sections 7.01 through 7.07 shall be deemed an event of default under this
Agreement (an "Event of Default"):
7.01 Failure to Pay Note, Breach of Certain Covenants. Failure to make
any payment of principal of, or interest on, the Note, or any payment of any
Facility Fee or any other amount due under this Agreement, when due and payable
as required under this Agreement, whether at the end of the applicable Interest
Period, at maturity, or otherwise, and the failure shall have continued
unremedied for a period of three Business Days after the Bank's written notice
to the Company, or the failure to observe or perform any term, covenant or
agreement of the Company contained in Sections 5.05(e), 6.02, or 6.03; or
7.02 Breach of Remaining Covenants. The failure to observe or perform
any term, covenant or agreement of the Company contained in this Agreement
(other than those described in Section 7.01), and the failure shall have
continued unremedied for a period of 30 days after the Bank's written notice to
the Company or beyond a reasonable period of time thereafter, if the Event of
Default is not reasonably capable of being cured within the 30-day period, and
the Company is diligently pursuing its cure; or
7.03 Breach of Warranty. Any representation or warranty the Company
makes herein, or any statement or representation made in any certificate, report
or opinion delivered pursuant to this Agreement, shall prove to have been
incorrect in any material respect when made; or
-25-
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7.04 Other Obligations. The Company or any Subsidiary shall default (as
principal, guarantor or surety):
(a) in the payment of any principal of, or premium, if any, or
interest on, any indebtedness (other than its indebtedness hereunder
and indebtedness between the Company and any Subsidiary or between
Subsidiaries) beyond the applicable grace period, if any,
(i) for borrowed money in an amount in excess of an
aggregate of $20,000,000 or
(ii) representing the deferred purchase price of
property with an outstanding deferred aggregate liability in
excess of $25,000,000; or
(b) with respect to the performance or observance of any term
of any instrument pursuant to which any indebtedness described in
Section 7.04(a) was created, or any mortgage, indenture or other
agreement relating thereto, if the effect of the default (after giving
effect to any applicable grace period) is to cause or permit that
indebtedness exceeding an aggregate of $20,000,000 to become due and
payable prior to its stated maturity; or
7.05 Insolvency; Receiver.
(a) If the Company makes an assignment for the benefit of
creditors, files a petition in bankruptcy, is adjudicated or held to be
insolvent or bankrupt, petitions or applies to any tribunal for any
receiver or any trustee for the Company or any substantial part of the
Company's property, commences any proceeding relating to the Company
under any reorganization, arrangement, readjustment of debt or similar
law or statute of any jurisdiction, whether now or hereafter in effect,
or if there is commenced against the Company any such proceeding which
remains undismissed, unstayed (or, if stayed, the stay shall have been
set aside) or unvacated for a period of 60 days, or the Company by any
act indicates its consent to, approval of, or acquiescence in, any such
proceeding or the appointment of any receiver or of any trustee for the
Company or any substantial part of the Company's property, or suffers
any such receivership or trusteeship to continue undischarged, unstayed
(or, if stayed, such stay shall have been set aside) or unvacated for a
period of 60 days; or
(b) If any of the foregoing events described in Section
7.05(a) occurs with respect to a Subsidiary instead of the Company and
that event will have a material adverse effect on the ability of the
Company to meet its financial obligations as they become due; or
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7.06 Judgments; Attachments.
(a) The Company or any Subsidiary shall suffer the entry
against it of a final judgment or decree for any amount in excess of
$20,000,000 (not adequately covered by insurance or reserves as
determined by the Bank in its reasonable discretion) unless, within 30
days after the entry thereof the same is satisfied or discharged or an
appeal or appropriate proceeding for review thereof is taken and a stay
of execution pending such appeal is obtained; or
(b) The Company or any Subsidiary shall suffer one or more
writs or warrants of attachment to be issued by any court against any
of its property exceeding in the aggregate $20,000,000 in value, and
such writs or warrants of attachment are not satisfied, stayed or
released within 30 days after the entry or levy thereof or after any
stay is vacated or set aside; or
7.07 ERISA. Any Reportable Event that the Bank shall determine in good
faith constitutes grounds for the PBGC to terminate any Plan or for the
appropriate United States District Court to appoint a trustee to administer any
Plan shall have occurred and be continuing for 30 days after the Bank shall have
given the Company written notice, or any Plan shall be terminated without
another Plan being available to replace or substitute for the terminated Plan;
or an appropriate United States District Court shall have appointed a trustee to
administer any Plan; or the PBGC shall institute proceedings to terminate any
Plan or to appoint a trustee to administer any Plan; and in any situation
described above the aggregate amount of the excess of the current value of the
Plan's; benefits guaranteed under Title IV of ERISA over the current value of
the Plan's s assets allocable to those benefits under Section 4044 of ERISA
shall exceed $20,000,000.
7.08 Remedies. If any one or more of the Events of Default described in
Sections 7.01 through 7.07 above shall occur and be continuing, then the Bank,
by notice to the Company, may take either or both of the following actions in
this Section 7.08:
(a) declare the obligation of the Bank to make Advances to the
Company hereunder to be terminated whereupon the same shall forthwith
terminate, or
(b) declare the entire unpaid principal amount of the Note,
all interest accrued and unpaid thereon, all accrued Facility Fees and
all other amounts due and payable by the Company under this Agreement
to be forthwith due and payable, whereupon the Note, all such accrued
and unpaid interest, accrued Facility Fees and all such other amounts
due and payable by the Company shall become and be forthwith due and
payable, without presentment, demand, protest, notice of intent to
accelerate, a notice of acceleration or further notice of any kind, all
of which are hereby expressly waived by the Company;
provided, that if an Event of Default described in Section 7.05(a) shall occur,
then the actions described in Sections 7.08(a) and (b) shall occur
automatically, without any notice to the Company or declaration by the Bank.
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ARTICLE VIII
MISCELLANEOUS
8.01 Survival. All agreements, representations and warranties made
herein or made in writing in connection herewith shall survive the execution and
delivery of this Agreement, the making of the Advances hereunder and the
execution and delivery of the Note.
8.02 Failure or Indulgence Not Waiver. No failure or delay on the part
of the Bank, or any holder of the Note in the exercise of any power, right or
privilege hereunder or under the Note shall operate as a waiver thereof, and no
single or partial exercise of any such power, right or privilege shall preclude
other or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this Agreement and the Note are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
8.03 Notices. Any notice herein required or permitted to be given shall
be in writing, and may be sent by facsimile, personal delivery or mail and, in
each case, shall be deemed to have been given when received by the party to
which the notice was addressed. Notices shall be sent to the addresses that are
set out in the signature pages hereof (until notice of change thereof is served
in the manner provided in this Section 8.03).
8.04 Applicable Law. This Agreement, the Note, all documents provided
for herein and the rights and obligations of the parties hereto shall be
governed by and construed in accordance with the laws of the State of Texas,
United States of America. The foregoing provision is not intended to limit the
rate of interest payable with respect to the Bank to the maximum rate permitted
by the laws of the State of Texas, United States of America if a higher rate is
permitted with respect to the Bank by supervening provisions of United States
federal law. The Company and the Bank hereby specifically declare that the
provisions of Chapter 346 of the Texas Finance Code (Vernon's Texas Code
Annotated) are not to be applicable to this Agreement, the Note or the
transactions contemplated hereby and thereby.
8.05 Interest Limitation. It is the intention of the Company and the
Bank to conform strictly to the usury laws as set forth in Section 8.04.
Accordingly, if the transactions contemplated hereby would be usurious under
those laws or any other applicable laws, then, in that event, notwithstanding
anything to the contrary in the Note, or this Agreement, it is agreed as follows
in this Section 8.05:
(a) the aggregate of all consideration that constitutes
interest that is contracted for, taken, reserved, charged or received
under the Note, or this Agreement, or otherwise in connection with any
Advance, shall under no circumstances exceed the maximum amount allowed
by those laws, and any excess shall be credited by the Bank on the
principal amount of the Advance (or, if the principal amount of the
Advance shall have been paid in full, refunded to the Company); and
(b) if the maturity of any Advance is accelerated or in the
event of any required or permitted prepayment, then the consideration
that constitutes interest may never include
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more than the maximum amount allowed by those laws, and excess
interest, if any, provided for in this Agreement or otherwise shall be
canceled automatically as of the date of the acceleration or prepayment
and, if theretofore paid, shall be credited by the Bank on the
principal amount of the Advance (or, if the principal amount of the
Advance shall have been paid in full, refunded by the Bank to the
Company).
To the extent that Chapter 1D, Subtitle 1, Title 79, Revised Civil Statutes of
Texas, 1925, as amended, is relevant to the Bank for the purposes of determining
the highest lawful interest rate applicable to this Agreement and the Note, the
Bank hereby elects to determine the applicable rate ceiling under that chapter
by the indicated (weekly) rate ceiling from time to time in effect, subject to
the Bank's right subsequently to change that method in accordance with
applicable law. In determining whether the interest paid or payable under any
specific contingency exceeds the highest lawful rate, the Company and the Bank
shall, to the maximum extent permitted under applicable law; (i) characterize
any nonprincipal payment (other than payments expressly designated as interest
payments hereunder) as an expense or fee rather than as interest, (ii) exclude
voluntary prepayments and the effect thereof and (iii) spread the total amount
of interest throughout the entire contemplated term of the Note so that the
interest rate is uniform throughout that term.
8.06 Assignment. Subject to Section 8.10, this Agreement shall be
binding upon, and inure to the benefit of, the Company and the Bank and their
respective successors and permitted assigns. The Company may not assign or
transfer its rights hereunder without the prior written consent of the Bank,
which will not be unreasonably withheld in the case of an assignment or transfer
to a Subsidiary; provided, that it shall be deemed to be reasonable for the Bank
to
(a) require the assignee or transferee to execute a written
note in favor of the Bank substantially in the form of Exhibit A with
respect to the amount that the assignee or transferee borrows; and
(b) require the Company to execute a written guarantee of the
assignee's or transferee's obligations under such a note; provided,
that such a guarantee does not contain obligations any greater than the
obligations that the Company has pursuant to this Agreement,
in each case, for the Bank to give its consent to such an assignment or transfer
even though such an assignment or transfer would not relieve the Company of its
obligations under this Agreement.
8.07 Computation of Interest Rates and Fees: Time of Payment. All
computations of interest and fees shall be made on the basis of a year of 360
days for the actual number of days elapsed (including the first day but
excluding the last day) (which results in greater interest than if a year of 365
days is used). The Company shall make each payment of principal of, and interest
on, the Advances made to it, and of the fees due hereunder by it, not later than
11:00 A.M. (in the time of the city in which the Bank has its principal office)
on the date when due.
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8.08 Expenses; Indemnity by the Company. The Company agrees to pay and
hold the Bank harmless against liability for the payment of all reasonable
attorneys' fees (including, without limitation, the allocated costs of in-house
counsel) and court costs incurred by the Bank arising in connection with the
enforcement against the Company of this Agreement, the Note, and the other
instruments and documents to be delivered by the Company hereunder.
8.09 Modifications and Amendments. This Agreement and the Note may only
be modified or amended by a written agreement duly executed by the Company and
the Bank.
8.10 Restriction on Transfers.
(a) The Bank may, without the consent of the Company, sell
participations to one or more banks or other entities (including,
without limitation, the Other Banks) in all or a portion of its rights
and obligations under this Agreement (including, without limitation,
the Bank's Commitment), the Advances then owing to the Bank and the
Note; provided, that
(i) those sales are made in compliance with all
applicable United States federal and state securities laws,
(ii) the Bank's obligations under this Agreement
shall remain unchanged,
(iii) the Bank shall remain solely responsible and
liable to the Company for the performance of those
obligations,
(iv) the participating banks or other entities shall
be entitled to the cost protection provisions contained in
Sections 2.05, 2.06, and 3.03 but only to the extent that the
protection would have been available to the Bank, calculated
as if no such participation had been sold,
(v) the Company shall continue to deal solely and
directly with the Bank in connection with the Bank's rights
and obligations under this Agreement, and
(vi) the Bank shall retain the sole right and
responsibility to enforce the obligations of the Company
relating to this Agreement, the Advances and the Note,
including, without limitation, the right to approve any
amendment, modification or waiver of any provision hereof or
thereof.
(b) The Bank may, with the prior written consent of the
Company (which consent shall not be unreasonably withheld in the case
of a proposed assignment by the Bank to one of its subsidiaries or
affiliates, and which consent may be withheld in the sole discretion of
the Company in the case of any other proposed assignment by the Bank),
assign to one or more banks or other institutions (including, without
limitation, the Other Banks and subsidiaries or affiliates of the Bank)
all or a portion of the Banks
-30-
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Commitment and its other rights and obligations under this Agreement
and the same portion of the then outstanding Advances and Note;
provided, that
(i) each such assignment shall be of a constant, and
not a varying, percentage of the Bank's Commitment and its
other rights and obligations under this Agreement, and the
then outstanding Advances and the Note, and
(ii) the parties to each such assignment shall
execute and deliver to the Company an assignment and
assumption agreement in form and substance satisfactory to the
Company. Upon such execution and delivery, from and after the
effective date specified in the assignment and assumption
agreement, the assignee shall be a party hereto and, to the
extent provided in the assignment and assumption agreement,
shall have the rights and obligations of the Bank under this
Agreement, and the Bank shall, to the extent provided in the
assignment and assumption agreement, be released from its
obligations under this Agreement.
(c) The Bank may, without the consent of the Company, assign
to a Federal Reserve Bank all or a portion of the Banks rights and
obligations under this Agreement, the then outstanding Advances and the
Note; provided, that the Bank's obligations under this Agreement shall
remain unchanged, and the Bank shall remain solely responsible to the
Company for performance of those obligations.
8.11 Table of Contents; Headings. The Table of Contents and the section
headings used in this Agreement are for convenience only and shall not affect
the construction of this Agreement.
8.12 Articles; Sections. References herein to "Article(s)" and
"Section(s)" mean the respective Article(s) and Section(s) of this Agreement.
8.13 Counterparts. This Agreement may be separately executed (including
execution by delivery of a facsimile or telecopied signature) in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to constitute one and the same Agreement.
8.14 Survival of Agreements. All of the agreements of the Company in
this Agreement shall survive the Company's repayment of all Advances made by the
Bank pursuant hereto.
8.15 Severability. If any term or provision of this Agreement and the
Note shall be determined to be illegal or unenforceable, all other terms and
provisions of those documents shall nevertheless remain effective and shall be
enforced to the fullest extent permitted by applicable law.
8.16 Confidentiality. The Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
non-public information provided to it by
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35
the Company in connection with this Agreement and agrees and undertakes that
neither the Bank nor any of its affiliates shall use any such information for
any purpose or in any manner other than pursuant to the terms contemplated by
this Agreement. The Bank may disclose such information
(a) at the request of any bank regulatory authority or in
connection with an examination of the Bank by that authority;
(b) to Bank's independent auditors, counsel and other
professional advisors; provided, that the Bank shall cause its
auditors, counsel and other professional advisors to comply with the
Bank's obligations pursuant to this Section 8.16; or
(c) pursuant to subpoena or other court process or when
required to do so in accordance with the provisions of any applicable
law or at the express direction of any agency of any State of the
United States of America or of any other jurisdiction in which the Bank
conducts its business, if the Company, after written notice to it
(except in cases where notice would be prohibited by law or court
order), has failed to obtain a protective or similar order to prevent
the disclosure or to preserve the confidentiality of the information
prior to the time that the Bank is advised by its legal counsel that
immediate disclosure is necessary to avoid liability for failure to
disclose;
(d) in connection with the defense of any litigation or other
proceeding brought against it arising out of the transactions
contemplated by this Agreement and related documents when the
disclosure is necessary for its defense;
(e) in connection with the enforcement of the rights and
remedies of the Bank under this Agreement when the disclosure is
necessary for enforcement; and
(f) to its subsidiaries and affiliates (provided the Bank
procures their respective agreements to be bound by the provisions of
this Section 8.16).
Notwithstanding the foregoing in this Section 8.16, the Company authorizes the
Bank to disclose to any participant, assignee, prospective participant,
prospective assignee or the Bank's U.S. investment banking affiliates, such
financial and other information in the Bank's possession concerning the Company
or its Subsidiaries that has been delivered to the Bank; provided, that such
participant, assignee, prospective participant, prospective assignee or the
Bank's U.S. investment banking affiliates, as the case may be, agrees in writing
to the Bank to keep such information confidential to the same extent required of
the Bank hereunder.
8.17 Consequential Damages. Notwithstanding anything herein to the
contrary, neither party shall have any liability for any consequential,
indirect, punitive, exemplary or special damages, including, without limitation,
loss of business, opportunities, revenue or profits.
8.18 Final Agreement. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
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BY EVIDENCE OF PRIOR, CONTEMTORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
-33-
37
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement
to be duly executed as of the day and year first above written.
COMPANY:
XXXXX XXXXXX INCORPORATED,
a Delaware corporation
By:
-----------------------------
Xxxxxxx X. Xxxx
Treasurer
Address for Notices:
XXXXX XXXXXX INCORPORATED
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Treasurer
Facsimile: 713/000-0000
Telephone: 713/000-0000
BANK:
By:
-----------------------------
Name:
Title:
Commitment Limit:
Addresses for Notices:
Facsimile:
Telephone:
Bank's Domestic Lending Office:
Bank's Eurodollar Lending Office:
-34-
38
EXHIBIT A
FORM OF COMPANY NOTE
October 1, 1998
For value received, XXXXX XXXXXX INCORPORATED, a Delaware corporation
(the "Company") promises to pay to the order of (the "Bank"), for the account of
its applicable lending office, at the principal office of the Bank at , the
principal amount of each Advance made by the Bank to the Company pursuant to
Section 3.01 of the Credit Agreement hereinafter referred to on the last day of
the Interest Period for the Advance. In any event, the aggregate unpaid
principal amount of each Advance shall be due and payable on the Termination
Date.
The Company also promises to pay interest on the unpaid principal amount
of each such Advance from the date of the Advance until the principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement; provided, that any amount of such principal
and, to the extent permitted by law, any interest thereon that is not paid when
due (whether at stated maturity, by acceleration or otherwise) shall bear
interest from the date on which such amount is due until such amount is paid in
full, payable on demand, at the Default Rate.
Loans and payments under this note shall be recorded and endorsed
hereon by the holder hereof; provided, that the failure by the holder hereof to
make such recordation and endorsement shall not limit or otherwise affect the
obligation of the Company hereunder, and payments of principal and interest
hereof by the Company shall not be affected by the failure to make any such
recordation and endorsement thereof hereon.
Principal and interest shall be payable in United States dollars in
immediately available funds.
This note is the Note referred to in, is issued in connection with, and
is entitled to the benefits of, that certain Credit Agreement dated as of
October 1, 1998, between the Company and the Bank, to which Credit Agreement
reference is hereby made for a statement of the terms and provisions under which
this note is issued. Capitalized terms used herein shall have the respective
meanings set forth in the Credit Agreement. This note shall be governed by and
construed in accordance with the laws of the State of Texas, United States of
America. Except for notice required to be given to the Company under the Credit
Agreement, the Company hereby waives presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or other notice in connection with
this Note.
39
THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
XXXXX XXXXXX INCORPORATED
By:
Name:
Title:
-2-
40
Transactions Noted on the Note
Unpaid
Amount of Maturity Interest Amount of Principal Notation
Date Advance Date Rate Payment Balance Made By
-3-
41
EXHIBIT B
BANK AND OTHER BANKS
Bank and Other Banks Commitment Limit
-------------------- ----------------
ABN AMRO Bank N.V. 37,500,000
Australia and New Zealand Banking Group Limited 37,500,000
Bank of America National Trust and Savings Association 84,375,000
The Bank of New York 37,500,000
Barclays Bank PLC 75,000,000
Bayerische Hypo Und Vereinsbank AG, Los Angeles Agency 37,500,000
Chase Bank of Texas, National Association 84,375,000
Citibank, NA 84,375,000
Credit Suisse First Boston 37,500,000
Dresdner Bank AG, New York Branch 37,500,000
Northern Trust Company 37,500,000
Revolving Commitment Vehicle Corporation 84,375,000
Royal Bank of Canada 37,500,000
Toronto Dominion (Texas), Inc. 37,500,000
-----------
TOTAL 750,000,000
42
EXHIBIT C
COMPANY REQUEST FOR ADVANCE
[Date]
[Name and address of Bank]
Gentlemen:
Xxxxx Xxxxxx Incorporated (the "Company") refers to the Credit Agreement
dated as of October 1, 1998 (the "Credit Agreement", the terms defined therein
being used herein as therein defined), by and between the Company and you. The
Company hereby gives you notice pursuant to Section 3.01 of the Credit Agreement
that the Company hereby requests an Advance under the Credit Agreement and in
that connection sets forth the terms on which the proposed Advance is requested
to be made.
The principal amount of the proposed Advance is $_______; the drawdown
date of the proposed Advance is __________; the proposed Advance is to be a
[Eurodollar Advance] or a [Reference Rate Advance]; the term of the Interest
Period for the proposed Advance is ____ months; the maturity date for payment of
the principal amount of the proposed Advance is ______________ 19 ___; the
interest payment date[s] of the proposed Advance is/are __________; and the
other terms applicable to the proposed Advance are _______________________.
In accordance with Section 3.01 of the Credit Agreement, please advise
the Company of the [Eurodollar Rate] or [Reference Rate].
Sincerely,
XXXXX XXXXXX INCORPORATED
By:
Name:
Title:
43
EXHIBIT D
FORM OF OPINION OF COMPANY COUNSEL
[date]
[Bank name and address]
Ladies and Gentlemen:
I am the _______________ of Xxxxx Xxxxxx Incorporated, a Delaware
corporation (the "Company"), and have acted as counsel to the Company in
connection with the preparation and execution of that certain Credit Agreement
dated as of October 1, 1998 (the "Credit Agreement"), by and between the Company
and ________________ ("Bank"). Terms used herein that are defined in the Credit
Agreement have the respective meanings ascribed to those terms in the Credit
Agreement, unless the context otherwise indicates.
In that connection, I have examined the Note and the Credit Agreement
that have been executed by the Company, but not by the Bank (herein being
collectively referred to as the "Examined Documents"). I have also examined the
originals or photostatic copies, certified or otherwise identified to my
satisfaction, of the Certificate of Incorporation and Bylaws of the Company,
each as amended to date, corporate records of the Company, certificates of
public officials, and certificates of representatives of the Company, and such
other documents as I have deemed necessary or appropriate for the purposes of
this opinion.
Based upon the foregoing, subject to the qualifications, limitations,
exceptions and assumptions hereinafter set forth, and having due regard for such
legal considerations as I deem relevant, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware
and has all necessary corporate power and authority to own its
properties and carry on its business as now conducted and is duly
qualified and in good standing in each United States jurisdiction which
requires qualification, except those jurisdictions, if any, in which
the failure to so qualify would not have a material adverse affect on
the business, properties or financial condition of the Company and its
Subsidiaries taken as a whole.
2. The Company has all necessary corporate power and authority
to enter into and perform the Credit Agreement and to issue and deliver
the Note, as provided in the Credit Agreement. The execution, delivery
and performance of the Credit Agreement and the Note have been
authorized by all necessary corporate action on the part of the
Company.
44
3. The Credit Agreement is, and the Note when duly executed
and delivered for value received will be, the valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as such enforceability may be (i) limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws from time to time in effect
and judicial decisions relating to or affecting the enforcement of
creditors' rights and debtor's obligations generally, or (ii) subject
to the effect of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
4. The execution, delivery and performance of the Credit
Agreement and the Note by the Company do not require the consent or
approval of any United States governmental body or other regulatory
authority and are not in contravention of or in conflict with any law
or regulation applicable to the Company or any term or provision of the
Certificate of Incorporation or Bylaws of the Company.
5. The execution, delivery and performance of the Credit
Agreement and the Note, to the best of my knowledge, are not in
contravention of, or in conflict with, any agreement or indenture that
is material to the Company and its Subsidiaries, taken as a whole, and
to which the Company is a party or by which any of its property is
bound, and do not cause any Mortgage upon any such property to be
created or imposed or to mature except as may be permitted by the terms
of the Credit Agreement.
6. To my knowledge, there is no pending or threatened
litigation before any court, administrative agency or arbitration panel
to which the Company is a party, which, in view of the facts currently
available to me, is expected to have a material adverse effect on the
financial condition or operations of the Company and its Subsidiaries,
taken as a whole. To my knowledge, the Company is not in default with
respect to any material order, writ, injunction or decree of any court
or other governmental or regulatory authority that is expected to have
a material adverse effect on the financial condition or operations of
the Company and its Subsidiaries, taken as a whole.
The opinions expressed herein are subject to the following
qualifications, limitations, exceptions and assumptions:
(A) In rendering the opinions expressed in Paragraph 1, above, I have
relied in part on certificates or telegrams of recent date of public officials
of the State of Delaware. Such opinions are limited to the date of the relevant
certificates or telegrams.
(B) The opinions expressed in Paragraph 5 hereof are limited to the
agreements, indentures and instruments, filed by the Company with the U.S.
Securities and Exchange Commission ("SEC") as material agreements pursuant to
the rules and regulations of the SEC as a part of its annual report on Form 10-K
for the year ending September 30, 1997, and those filed by the Company with the
SEC subsequent to September 30, 1997.
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45
(C) I have assumed, without independent investigation, that the Bank
will duly execute and deliver to the Company each of the Examined Documents to
which it is a party, with all necessary power and authority (corporate and
otherwise) and that (i) if the Company or the Bank exercises any rights or
enforce any remedies, it will do so in good faith and in a commercially
reasonable manner and will abide by any implied covenant of good faith and fair
dealing which may be imposed by law, and (ii) the Bank will comply with any
applicable state or federal securities laws.
(D) As to matters of fact relevant to this opinion, I have, to the
extent I have deemed appropriate, relied upon (i) certificates and other
representations of officers and representatives of the Company and its
Subsidiaries who have made investigations outside of my personal control, and
(ii) certificates and telegrams of governmental officials.
(E) In my examination of the documents referred to above, I have
assumed all documents submitted to me as originals are authentic and complete,
(ii) all documents submitted to me as certified or photostatic copies conform to
the original document, and such original document is authentic and complete,
(iii) that signatures on all documents are genuine, (iv) all statements of fact
contained in the Examined Documents and all other documents, certificates, and
records that I have examined are true, accurate, and correct, and all statements
of fact made to me by officers and representatives of the Company and its
Subsidiaries are true and correct, and (v) there has been no material change in
the facts set forth in the Examined Documents, or such other documents,
certificates, and records that I have examined or representations made to me,
prior to the date hereof. I have no knowledge that any such documents,
certificates, and records were not authentic and complete, or that any of such
statements are not true and correct as of the date hereof.
(F) I have assumed there has been no cancellation or withdrawal of any
of the organizational documents of the Company, and that no act or event has
occurred which would, pursuant to the terms of such organizational documents or
other applicable law, permit or require the dissolution of the Company, and I
have no knowledge of any such cancellation, withdrawal, act or event. I have
further assumed due authorization for execution, delivery, and performance of
such organizational documents by each party by whom such authorization is
required, and that none of the signatories to such organizational documents was
operating under any legal disability under the laws of the state of residence or
incorporation of such party.
(G) I express no opinion as to the availability or enforceability of the
following provisions and remedies set forth in the Examined Documents: (i)
equitable remedies, including specific performance, or any other remedy set
forth in the Examined Documents; (ii) provisions relating to waivers by any of
the parties or precluding any of the parties from asserting certain claims or
defenses or from obtaining certain rights and remedies, or which purport to
waive any applicable statute of limitations, or rights to any stay or extension
laws, or which purport to establish evidential standards; (iii) provisions
expressly or by implication waiving broadly or vaguely stated rights, unknown
future rights, or defenses to obligations or rights granted by law; (iv)
provisions relating to subrogation rights, delay or omission or enforcement of
rights or
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46
remedies, severability, injunctions, appointment of receivers, waivers or
ratifications of future acts, the rights of third parties, prohibitions against
the sale, transfer, or assignment of any property or interest, marshalling of
assets, set-offs, or sale in the inverse order of alienation; (v) provisions at
variance with public laws which do not affect the practical benefits of the
Examined Documents; (vi) provisions covenanting to take actions, the taking of
which are discretionary with or subject to the approval of a third party or
which are otherwise subject to a contingency, the fulfillment of which is not
within the control of the parties so covenanting; (vii) provisions purporting to
apply subsequently enacted laws; (viii) provisions to the effect that rights or
remedies may be exercised without notice, that rights or remedies are not
exclusive, that every right or remedy is cumulative and may be exercised in
addition to or with any other right or remedy, or that the election of a
particular remedy or remedies does not preclude recourse to one or more other
remedies, or that the failure to exercise or delay in exercising rights or
remedies will not operate as a waiver of such right or remedy; and (ix)
limitations on enforceability posed by public policy consideration or court
decisions which may limit the right to obtain indemnification under certain
circumstances. Enforcement of obligations under the Examined Documents may also
be limited by constitutional limitations (including notice and due process
requirements), by the redemption rights of the United States under the Federal
Tax Lien Act of 1966, as amended, and requirements that the Bank exercise rights
under the Examined Documents in a commercially reasonable manner.
(H) The opinions expressed herein relate solely to, are based solely
upon, and are limited exclusively to the laws of the State of Texas, the General
Corporation Law of the State of Delaware, and the laws of the United States of
America, to the extent applicable and as currently in effect. I assume no, and
hereby specifically disclaim any, obligation to supplement this opinion if any
applicable laws change after the date of this opinion, of if I become aware of
any facts that might change the opinions expressed above after the date of this
opinion.
(I) The opinions set forth herein are limited to the specific matters
addressed hereby, and no opinion is to be implied or may be inferred beyond the
matters specifically addressed.
(J) This letter is provided to you as a legal opinion only and not as a
guaranty or warranty of the matters discussed herein, nor does this letter
constitute a guarantee of any of the obligations set forth in the Examined
Documents. By rendering this opinion, I am not guaranteeing or insuring the
obligations set forth in the Examined Documents, or other matters referred to
herein or opined upon herein.
This opinion is furnished to you solely for your benefit pursuant to the
Credit Agreement. This letter and the opinions expressed herein may not be used
or relied upon by you for any other purpose and may not be relied upon for any
purpose by any other person or entity without my prior written consent. Except
for the use permitted herein, this letter is not to be quoted or reproduced in
whole or in part or otherwise referred to in any manner, nor is it to be filed
with any governmental agency or delivered to any other person or entity without
my prior written consent.
Very truly yours,
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