LOAN AGREEMENT
by and among
XXXXXXX & XXXXXXXXX SERVICES, INC.,
a Texas corporation,
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
a national banking association
acting in its individual capacity
and as Agent for Lenders
BANK OF AMERICA ILLINOIS
and
NATIONSBANK OF TEXAS, N.A.
as Co-Agents
and
THE FINANCIAL INSTITUTIONS NOW OR HEREAFTER
A PARTY HERETO
$225,000,000 Revolving Credit Facility
December 20, 1996
I N D E X
1. CERTAIN DEFINITIONS.................................................1
Accounts and Inventory..............................................1
Additional Interest.................................................1
Adjusted CD Rate....................................................1
Adjusted Eurodollar Interbank Rate..................................1
Affiliate...........................................................1
Agreement...........................................................1
Alternate Rates.....................................................2
Alternate Rate Borrowing............................................2
Annual Financial Statements.........................................2
Bankruptcy Code.....................................................2
Base CD Rate........................................................2
Base Rate...........................................................2
Base Rate Borrowing.................................................3
Borrowing Authorization.............................................3
Business Day........................................................3
Calculation Date....................................................3
Capital Expenditures................................................3
Capital Lease Obligations...........................................3
Cash Interest Expense...............................................4
CD Rate.............................................................4
CD Rate Borrowing...................................................4
CD Reserve Requirement..............................................4
Ceiling Rate........................................................4
Chapter One.........................................................5
Code................................................................5
Commitment..........................................................5
Commitment Fee Percentage...........................................5
Compliance Certificate..............................................5
Controlled Group....................................................5
Credit Documents....................................................5
Dealer Rate.........................................................5
Default.............................................................6
EBITDA..............................................................6
Eligible Assignee...................................................6
Environmental Claim.................................................6
Environmental Liabilities...........................................6
Environmental Permit................................................7
ERISA...............................................................7
Eurodollar Business Day.............................................7
Eurodollar Interbank Rate...........................................7
Eurodollar Rate.....................................................7
Eurodollar Rate Borrowing...........................................7
Eurodollar Reserve Requirement......................................8
Event of Default....................................................8
Facility Debt.......................................................8
FDIC Percentage.....................................................8
Federal Funds Rate..................................................8
FMTV Capital Expenditures...........................................8
Funding Loss........................................................8
GAAP................................................................9
Governmental Authority..............................................9
Hazardous Substance.................................................9
Indebtedness........................................................9
Interest Bearing Debt..............................................10
Interest Bearing Debt to Total Capitalization......................10
Interest Coverage Ratio............................................10
Interest Options...................................................10
Interest Payment Dates.............................................10
Interest Period....................................................10
Investment.........................................................11
Legal Requirement..................................................11
Lien...............................................................11
Loan Availability Period...........................................11
Loans..............................................................11
MAC................................................................11
Majority Lenders...................................................11
Margin Percentage..................................................11
Maturity Date......................................................11
Maximum Commitment.................................................11
Negotiated Base Rate...............................................12
Negotiated Rate....................................................12
Negotiated Rate Borrowing..........................................12
Net Income.........................................................12
Net Tangible Assets................................................12
Notes..............................................................12
Organizational Documents...........................................12
Original Notes.....................................................12
Past Due Rate......................................................12
PBGC...............................................................12
Percentage.........................................................12
Permitted Investments..............................................12
Person.............................................................13
Plan...............................................................13
Prime Rate.........................................................13
Proper Form........................................................13
Property...........................................................13
Quarterly Financial Statements.....................................13
Rate Designation Notice............................................14
Regulation D.......................................................14
Request for Credit.................................................14
Subsidiary.........................................................14
Superseded Loan Agreement..........................................14
Tangible Net Worth.................................................15
Taxes..............................................................15
Termination Date...................................................15
Texas Credit Code..................................................15
Total Capitalization...............................................15
Unfunded Liabilities...............................................15
2. LOANS..............................................................15
3. INTEREST OPTIONS FOR LOANS.........................................17
4. CONDITIONS PRECEDENT...............................................22
5. REPRESENTATIONS AND WARRANTIES.....................................23
6. AFFIRMATIVE COVENANTS..............................................27
7. NEGATIVE COVENANTS.................................................32
8. DEFAULT............................................................34
9. LENDERS' RIGHT TO CURE.............................................36
10. THE AGENT..........................................................37
11. PARTICIPATION; ASSIGNMENT..........................................40
12. USURY NOT INTENDED; SAVINGS PROVISIONS.............................40
13. DOCUMENTATION REQUIREMENTS.........................................41
14. SURVIVAL...........................................................41
15. BORROWER AGREES TO PAY OR REIMBURSE
AGENT'S EXPENSES; INDEMNIFICATION..................................41
16. AMENDMENTS IN WRITING..............................................42
17. NOTICES............................................................42
18. "INCLUDING" IS NOT LIMITING; SECTION HEADINGS
AND REFERENCES; EXHIBITS, ETC......................................43
19. OFFSET RIGHTS......................................................43
20. VENUE..............................................................44
21. RIGHTS CUMULATIVE; DELAY NOT WAIVER................................44
22. ENTIRE AGREEMENT; FORMER AGREEMENT SUPERSEDED......................45
23. SEVERABILITY.......................................................45
24. RELEASE OF CLAIMS..................................................45
25. COUNTERPARTS.......................................................45
26. ASSIGNMENT TO FEDERAL RESERVE BANK.................................46
EXHIBITS:
A - Note form
B - Rate Designation Notice
C - Request for Credit
D - Compliance Certificate
E - Assignment form
SCHEDULES:
I - Litigation
II - Subsidiaries
III - Investments
IV - Liens
LOAN AGREEMENT
This Loan Agreement ("Agreement") is made as of December 20, 1996 by and
among XXXXXXX & XXXXXXXXX SERVICES, INC. ("Borrower"), a Texas corporation, the
financial institutions (collectively herein called "Lenders") which are now or
may hereafter become a party hereto, and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association (in its individual capacity, "TCB"),
as agent for Lenders (in such capacity, "Agent"). Borrower has requested that
Lenders make loans to Borrower in the following manner and subject to the
following terms and conditions:
I. CERTAIN DEFINITIONS. Unless a particular word or phrase is otherwise
defined or the context otherwise requires, capitalized words and phrases
used in this Agreement shall have the following meanings (all definitions that
are defined in this Agreement in the singular to have the same meanings when
used in the plural and vice versa):
Accounts and Inventory shall have the respective meanings assigned to them
in the Texas Business and Commerce Code in force on the date hereof.
Additional Interest means the aggregate of all amounts
accrued or paid pursuant to the Notes or any of the other Credit Documents
(other than interest on the Notes at the Stated Rate) which, under applicable
laws, are or may be deemed to constitute interest on the indebtedness evidenced
by the Notes.
Adjusted CD Rate means, with respect to each Interest Period applicable
to a CD Rate Borrowing, a rate per annum equal to the sum of(a) the quotient,
expressed as a percentage, of (i) the Dealer Rate with respect to such Interest
Period divided by (ii) 1.0000 minus the CD Reserve Requirement in effect on the
first day of such Interest Period plus (b) the FDIC Percentage in effect on the
first day of such Interest Period.
Adjusted EurodollarInterbank Rate means, with respect to each Interest
Period applicable to a Eurodollar Rate Borrowing, a rate per annum equal to
the quotient, expressed as a percentage, of (a) the Eurodollar Interbank Rate
with respect to such Interest Period divided by (b) 1.0000 minus the Eurodollar
Reserve Requirement in effect on the first day of such Interest Period.
Affiliate means any Person controlling, controlled by or under common
control with any other Person. For purposes of this definition, "control"
(including "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of any indicia of equity rights (whether issued and outstanding
capital stock, partnership interests or otherwise) or by any other means.
Agreement means this Loan Agreement, as it may from time to time be
amended, modified, restated or supplemented.
Alternate Rates means the CD Rate, the Eurodollar Rate and the Negotiated
Rate.
Alternate Rate Borrowing means that portion of the principal balance of
the Loans at any time bearing interest at an Alternate Rate.
Annual Financial Statements means for any fiscal year of a Person the
annual financial statements of such Person, including all notes thereto, which
statements shall include a balance sheet as of the end of such fiscal year and
an income statement, retained earnings statement and statement of cash flows for
such fiscal year, all setting forth in comparative form the corresponding
figures from the previous fiscal year, all prepared in conformity with GAAP, and
accompanied by an unqualified report and opinion of Xxxxxx Xxxxxxxx & Co. or
independent certified public accountants of recognized national standing
satisfactory to Majority Lenders, which shall state that such financial
statements, in the opinion of such accountants, present fairly, in all material
respects, the financial position of such Person as of the date thereof and the
results of its operations for the period covered thereby in conformity with
GAAP. Such statements shall be accompanied by a certificate of such accountants
that in making the appropriate audit and/or investigation in connection with
such report and opinion, such accountants did not become aware of any Default
or, if in the opinion of such accountant any such Default exists, a description
of the nature and status thereof. The Annual Financial Statements for Borrower
and its Subsidiaries shall be prepared on both a consolidated and a
consolidating basis (the parties recognizing that such consolidating statements
will be prepared in accordance with GAAP only to the extent normal and
customary).
Bankruptcy Code means the United States Bankruptcy Code, as amended,
and any successor statute.
Base CD Rate means, for any day, a rate per annum equal to the sum of
(a) the quotient, expressed as a percentage, of (1) the secondary market rate
for three-month certificates of deposit reported as being in effect on such day
(or, if such day is not a Business Day, the immediately preceding Business Day)
by the Federal Reserve Board through the public information telephone line of
the Federal Reserve Bank of New York (which rate will, under the current
practices of the Federal Reserve Board, be published in Federal Reserve
Statistical Release H.15[519] during the week following such day) or, if such
rate is not so reported on such day or such immediately preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
10:00 a.m., Houston, Texas time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by Agent in its sole and absolute discretion, divided by (2) 1.0000 minus the CD
Reserve Requirement in effect on such day plus (b) the FDIC Percentage in effect
for such day.
Base Rate means for any day a rate per annum (rounded upwards to the
nearest 1/16 of 1%) equal to the lesser of (a) the greater of (1) the Prime Rate
for that day, (2) the Base CD Rate for that day plus 1 1/4%, and (3) the Federal
Funds Rate for that day plus 1/2 of 1% and (b) the Ceiling Rate. If for any
reason Agent shall have determined (which determination shall be conclusive and
binding, absent manifest error) that it is unable to ascertain the Base CD Rate
or the Federal Funds Rate, or both, for any reason, including the inability or
failure of Agent to obtain sufficient quotations in accordance with the terms
hereof, the Base Rate shall, until the circumstances giving rise to such
inability no longer exist, be the lesser of (a) the Prime Rate and (b) the
Ceiling Rate.
Base Rate Borrowing means that portion of the principal balance of the
Loans at any time bearing interest at the Base Rate.
Borrowing Authorization means a certificate, in Proper Form, of the
Secretary or an Assistant Secretary of a corporation as to the resolutions of
the Board of Directors of such corporation authorizing the execution, delivery
and performance of the documents to be executed by such corporation; the
incumbency and signature of the officer of such corporation executing such
documents on behalf of such corporation, and the Organizational Documents of
such corporation.
Business Day means any day other than a day on which commercial banks
are authorized or required to close in Houston, Texas or in the jurisdiction in
which the principal place of business of any Lender is located.
Calculation Date shall mean the Business Day on which Agent receives
either an Annual Financial Statement of Borrower, as contemplated in Section
6(b), or the Quarterly Financial Statements of Borrower for a quarter-annual
period as contemplated in Section 6(b), together with the applicable schedules
and certificates required hereunder.
Capital Expenditures means, as to any Person, expenditures in respect
of fixed or capital assets by such Person, including the capital portion of
lease payments made in respect of Capital Lease Obligations, but excluding
expenditures for the restoration, repair or replacement of any fixed or capital
asset which was destroyed or damaged, in whole or in part, to the extent
financed by the proceeds of an insurance policy maintained by such Person and
further excluding the FMTV Capital Expenditures. Expenditures in respect of
replacements and maintenance consistent with the business practices of a Person
in respect of plant facilities, machinery, fixtures and other like capital
assets utilized in the ordinary course of business are not Capital Expenditures
to the extent such expenditures are not capitalized in preparing a balance sheet
of such Person in accordance with GAAP.
Capital Lease Obligations means, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal Property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP (including Statement of Financial Accounting
Standards No. 13 of the Financial Accounting Standards Board, as amended) and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
Cash Interest Expense means, for any period, the cash interest payments
by a Person made during such period in connection with such Person's Interest
Bearing Debt.
CD Rate means for any day a rate per annum equal to the lesser of (a)
the sum of (1) the Adjusted CD Rate in effect on the first day of the Interest
Period for the applicable CD Rate Borrowing plus (2) the applicable Margin
Percentage in effect on the first day of the Interest Period for the applicable
CD Rate Borrowing and (b) the Ceiling Rate. The CD Rate shall be computed on the
basis of the actual number of days elapsed in a year consisting of 360 days. The
CD Rate is subject to adjustments for reserves, insurance assessments and other
matters as provided for in Section 3(c).
CD Rate Borrowing means that portion of the Loans at any time bearing
interest at the CD Rate.
CD Reserve Requirement means, on any day, that percentage (expressed as
a decimal fraction and rounded, if necessary, to the next highest one ten
thousandth [.0001]) which is in effect on such day for determining all reserve
requirements (including basic, supplemental, marginal and emergency reserves)
applicable to new, non-personal, negotiable certificates of deposit issued by
Agent, in amounts of $100,000 or more with maturities equal to or comparable
with the applicable Interest Period, all as specified by any governmental
authority, including those imposed under Regulation D. The CD Reserve
Requirement shall be adjusted automatically on and as of the effective date of
any change without notice to Borrower or any other Person. Each determination of
the CD Reserve Requirement by Agent shall be conclusive and binding, absent
manifest error, and may be computed by using any reasonable averaging and
attribution method.
Ceiling Rate means, on any day, the maximum nonusurious rate of
interest permitted for that day by whichever of applicable federal or Texas laws
permits the higher interest rate, stated as a rate per annum. On each day, if
any, that Chapter One establishes the Ceiling Rate, the Ceiling Rate shall be
the "indicated rate ceiling" (as defined in Chapter One) for that day. Lenders
may from time to time, as to current and future balances, implement any other
ceiling under Chapter One by notice to Borrower, if and to the extent permitted
by Chapter One. Without notice to Borrower or any other Person, the Ceiling Rate
shall automatically fluctuate upward and downward as and in the amount by which
such maximum nonusurious rate of interest permitted by applicable law
fluctuates.
Change of Control means any of (a) the acquisition by any Person or two
or more Persons acting in concert of beneficial ownership of 25% or more of the
outstanding shares of voting stock of Borrower, or (b) a majority of the members
of the Board of Directors of Borrower on any date shall not have been members of
the Board of Directors of Borrower on the date 12 months prior to such date, or
(c) all or substantially all of the assets of Borrower are sold in a single
transaction or series of related transactions to any Person or Persons, or (d)
the merger or consolidation of Borrower with or into any other Person.
Chapter One means Chapter One of the Texas Credit Code, as in effect on
the date hereof.
Code means the Internal Revenue Code of 1986, as amended, as now or
hereafter in effect, together with all regulations, rulings and interpretations
thereof or thereunder by the Internal Revenue Service.
Commitment means the Maximum Commitment or such lesser amount as
Borrower may designate by notice to Agent pursuant to Section 2(b).
Commitment Fee Percentage means, on any day, the per annum percentage
corresponding to the Interest Bearing Debt to Total Capitalization Ratio
(determined as of the most recent Calculation Date) on such day as provided
below:
Interest Bearing Debt Per Annum
to Total Capitalization Ratio Percentage
0.45 or more to 1.00 0.20%
0.40 or more to 1.00 but less than 0.45 to 1.00 0.15%
less than 0.40 to 1.00 0.125%
Compliance Certificate shall have the meaning given to it in Section
6(b).
Controlled 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 applicable Person, are treated as a
single employer under Section 414 of the Code.
Credit Documents means any and all papers now or hereafter governing,
evidencing, guaranteeing or securing or otherwise relating to all or any part of
the Facility Debt, including the Notes, this Agreement, Borrowing Authorizations
of Borrower, all instruments, certificates and agreements now or hereafter
executed or delivered to Agent or any Lender pursuant to any of the foregoing or
in connection with the Loans or any commitment regarding the Loans and all
amendments, modifications, renewals, extensions, increases and rearrangements
of, and substitutions for, any of the foregoing.
Dealer Rate means, for each Interest Period, the rate of interest per
annum, rounded, if necessary, to the next highest whole multiple of
one-sixteenth percent (1/16%), quoted by Agent at or before 10:00 a.m., Houston,
Texas time (or as soon thereafter as practicable), on the first day of such
Interest Period, to be the arithmetic average of the prevailing rates per annum
at the time of determination and in accordance with the then existing practice
in the applicable market, bid by one or more certificate of deposit dealers of
recognized standing selected by Agent in its sole discretion, for the purchase
at face value of domestic negotiable certificates of deposit from Agent, or any
affiliate of Agent selected by Agent as the reference bank, having a maturity
equal to the length of such Interest Period and in an amount equal (or as nearly
equal as may be) to the CD Rate Borrowing to which such Interest Period relates.
Each determination by Agent of the Dealer Rate shall be conclusive and binding,
absent manifest error, and may be computed using any reasonable averaging and
attribution method.
Default means an Event of Default or an event which with notice or
lapse of time or both would, unless cured or waived, become an Event of Default.
EBITDA means Net Income plus (a) interest expense; (b) depreciation,
amortization, depletion and obsolescence of Property; (c) other non-cash
extraordinary charges (net of non-cash extraordinary credits), and (d) tax
expense, all determined in accordance with GAAP; provided, however, that in
determining EBITDA for the last three quarters of fiscal year 1996 and the first
quarter of fiscal year 1997, the pre-tax charge of $20,000,000 resulting from
the verdict in Serv-Tech, Inc. vs. Xxxxxxx & Xxxxxxxxx Services, Inc. shall be
excluded. EBITDA shall be determined on a consolidated basis.
Eligible Assignee means a financial institution acceptable to Agent and
Borrower, which acceptance shall not be unreasonably withheld.
Environmental Claim means any claim; litigation; demand; action; cause
of action; suit; judgment, governmental or private investigation and testing;
notification of status of being potentially responsible for clean-up of any
facility or for being in violation or in potential violation of any
Environmental Law; proceeding; consent or administrative orders, agreements or
decrees; lien; personal injury or death of any person; or property damage,
whether threatened, sought, brought or imposed, that is related to or that seeks
to recover or impose Environmental Liabilities for (i) failure to comply with
Environmental Laws; (ii) improper use or treatment of wetlands, pinelands or
other protected land or wildlife; (iii) radioactive materials (including
naturally occurring radioactive materials ["NORM"]); (iv) pollution,
contamination, Remediation or clean-up of the air, surface water, groundwater,
or soil; (v) solid, gaseous or liquid waste generation, handling, discharge,
release, threatened release, treatment, storage, disposal or transportation;
(vi) exposure or death of, or injury to, persons or property from Hazardous
Substances and the effects thereof; and (vii) the release or threatened release
(into the indoor or outdoor environment) or Remediation of Hazardous Substances.
Environmental Laws means any and all laws, rules, regulations,
ordinances, orders, consent agreements, orders on consent, or guidance documents
now or hereafter in effect of any applicable international, federal, state or
local executive, legislative, judicial, regulatory or administrative agency,
board or authority or any judicial or administrative decision relating thereto
that relate in any manner to health, worker protection, the environment,
Hazardous Substances or a community's right to know.
Environmental Liabilities shall mean all liabilities arising from any
Environmental Claim under any theory of recovery, at law or in equity, and
whether based on negligence, strict liability, any Environmental Law or
otherwise, including: remedial, removal, response, abatement, restoration
(including natural resources), investigative, or monitoring costs, personal
injury and damage to property or natural resources and any other related costs,
expenses, losses, damages, penalties, fines, liabilities and obligations and
including, but not limited to, attorneys' fees, diminution in value, and
expert's fees and costs incurred in testing for the likelihood of Remediation or
the likelihood of violation of any Environmental Laws, and monitoring or
responding to efforts to require Remediation or any claim based upon any
asserted or actual breach or violation of Environmental Law.
Environmental Permit shall mean any permit, license, certificates,
registrations, identification numbers, applications, consents, approvals,
variances, notices of intent, exemptions approval or other authorization
required under any Environmental Law.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules, regulations, rulings and
interpretations adopted by the Internal Revenue Service or the U.S. Department
of Labor thereunder.
Eurodollar Business Day means a Business Day on which transactions in
United States dollar deposits between banks may be carried on in whatever
Eurodollar interbank market may be selected by Agent in accordance herewith.
Eurodollar Interbank Rate means, for each Interest Period, the rate of
interest per annum, rounded, if necessary, to the next highest whole multiple of
one-sixteenth percent (1/16%), quoted by Agent at or before 10:00 a.m., Houston,
Texas time (or as soon thereafter as practicable), on the date two Eurodollar
Business Days before the first day of such Interest Period, to be the arithmetic
average of the prevailing rates per annum at the time of determination and in
accordance with the then existing practice in the applicable market, for the
offering to Agent by one or more prime banks selected by Agent in its sole
discretion, in whatever Eurodollar interbank market may be selected by Agent in
its sole discretion, of deposits in United States dollars for delivery on the
first day of such Interest Period and having a maturity equal to the length of
such Interest Period and in an amount equal (or as nearly equal as may be) to
the Eurodollar Rate Borrowing to which such Interest Period relates. Each
determination by Agent of the Eurodollar Interbank Rate shall be conclusive and
binding, absent manifest error, and may be computed using any reasonable
averaging and attribution method.
Eurodollar Rate means for any day a rate per annum equal to the lesser
of (a) the sum of (1) the Adjusted Eurodollar Interbank Rate in effect on the
first day of the Interest Period for the applicable Eurodollar Rate Borrowing
plus (2) the applicable Margin Percentage in effect on the first day of the
Interest Period for the applicable Eurodollar Rate Borrowing and (b) the Ceiling
Rate. Subject to Section 12, each Eurodollar Rate is subject to adjustments for
reserves, insurance assessments and other matters as provided for in Section
3(c).
Eurodollar Rate Borrowing means each portion of the principal balance
of the Loans at any time bearing interest at a Eurodollar Rate.
Eurodollar Reserve Requirement means, on any day, that percentage
(expressed as a decimal fraction and rounded, if necessary, to the next highest
one ten thousandth [.0001]) which is in effect on such day for determining all
reserve requirements (including basic, supplemental, marginal and emergency
reserves) applicable to "Eurocurrency liabilities," as currently defined in
Regulation D, all as specified by any governmental authority, including those
imposed under Regulation D. Each determination of the Eurodollar Reserve
Requirement by Agent shall be conclusive and binding, absent manifest error, and
may be computed using any reasonable averaging and attribution method.
Event of Default shall have the meaning assigned to it in Section 8.
Facility Debt means the Indebtedness evidenced by the Notes and any and
all other Indebtedness arising pursuant to this Agreement or any other Credit
Document from time to time.
FDIC Percentage means, on any day, the annual assessment rate in effect
on such day which is payable by a member of the Bank Insurance Fund classified
as well capitalized and within supervisory subgroup "B" (or a comparable risk
classification) within the means of 12 C.F.R. ss.372.3(d) (or any successor
provision) to the Federal Deposit Insurance Corporation (or any successor) for
its insuring time deposits at offices of such member in the United States. Each
determination of the FDIC Percentage by Agent shall be conclusive and binding,
absent manifest error, and may be computed by using any reasonable averaging and
attribution method.
Federal Funds Rate means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of recognized
standing selected by Agent in its sole and absolute discretion.
FMTV Capital Expenditures shall mean the sum of all capitalized leases
and capital expenditures, determined in accordance with GAAP, relating to the
performance by Borrower of that certain contract between Borrower and the United
States of America to assemble and furnish medium tactical vehicles.
Funding Loss means, with respect to (a) Borrower's payment of principal
of an Alternate Rate Borrowing on a day other than the last day of the
applicable Interest Period; (b) Borrower's failure to borrow an Alternate Rate
Borrowing on the date specified by Borrower; (c) Borrower's failure to make any
prepayment of the Loans (other than Base Rate Borrowings) on the date specified
by Borrower, or (d) any cessation of an Alternate Rate to apply to the Loans or
any part thereof pursuant to Section 3(c), in each case whether voluntary or
involuntary, any loss, expense, penalty, premium or liability incurred by Agent
or any Lender (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by Agent or any
Lender to fund or maintain a Loan).
GAAP means, as to a particular Person, such accounting practice as, in
the opinion of the independent certified public accountants of recognized
national standing regularly retained by such Person and acceptable to Majority
Lenders, conforms at the time to generally accepted accounting principles,
consistently applied. Generally accepted accounting principles means those
principles and practices (a) which are recognized as such by the Financial
Accounting Standards Board or equivalent non-United States counterpart, (b)
which are applied for all periods after the date hereof in a manner consistent
with the manner in which such principles and practices were applied to the most
recent audited financial statements of the relevant Person furnished to Lenders,
and (c) which are consistently applied for all periods after the date hereof so
as to reflect properly the financial condition, and results of operations and
changes in financial position, of such Person. If any change in any accounting
principle or practice is required by the Financial Accounting Standards Board or
equivalent non-United States counterpart in order for such principle or practice
to continue as a generally accepted accounting principle or practice, all
reports and financial statements required hereunder may be prepared in
accordance with such change only after written notice of such change is given to
Agent.
Governmental Authority means any sovereign governmental authority, the
United States of America, any State of the United States and any political
subdivision of any of the foregoing, and any central bank, agency, department,
commission, board, bureau, court or other tribunal having jurisdiction over
Agent, any Lender, Borrower, any Subsidiary of Borrower, or any of their
respective Property.
Hazardous Substance shall mean (i) those substances included within the
statutory and/or regulatory definitions or listings of "hazardous substance,"
"medical waste," "special waste," "solid waste," "hazardous waste," "extremely
hazardous substance," "regulated substance," "hazardous materials," or "toxic
substances," under any Environmental Law; (ii) any material, waste or substance
which is or contains: (A) petroleum, oil or a fraction thereof, (B) explosives,
or (C) radioactive materials (including naturally occurring radioactive
materials); and (iii) such other substances, materials, or wastes that are or
become classified or regulated as hazardous or toxic under any applicable
international, federal, state or local law or regulation.
Indebtedness means and includes (a) all items which in accordance with
GAAP would be included on the liability side of a balance sheet on the date as
of which Indebtedness is to be determined (excluding capital stock, surplus,
surplus reserves and deferred credits); (b) all guaranties, letter of credit
contingent reimbursement obligations, endorsements and other contingent
obligations in respect of, or any obligations to purchase or otherwise acquire,
Indebtedness of others, and (c) all Indebtedness secured by any Lien existing on
any interest of the Person with respect to which Indebtedness is being
determined in Property owned subject to such Lien whether or not the
Indebtedness secured thereby shall have been assumed (up to the amount of such
Indebtedness or the book value of such Property, whichever is less); provided,
that such term shall not mean or include any Indebtedness in respect of which
monies sufficient to pay and discharge the same in full (either on the expressed
date of maturity thereof or on such earlier date as such Indebtedness may be
duly called for redemption and payment) shall be deposited with a depository,
agency or trustee acceptable to Majority Lenders in trust for the payment
thereof.
Interest Bearing Debt means, as to any Person, (a) Indebtedness of such
Person for borrowed money (other than Indebtedness which is non-recourse to such
Person), (b) Indebtedness of such Person for deferred compensation and (c)
Capital Lease Obligations.
Interest Bearing Debt to Total Capitalization means, as of any day, the
ratio of Interest Bearing Debt to Total Capitalization.
Interest Coverage Ratio means, as of any day, the ratio of (a) the
amount of EBITDA for the 12-month period ending on such date less cash taxes and
Capital Expenditures for such period to (b) Cash Interest Expense for such
period.
Interest Options means the Base Rate and the Alternate Rates.
Interest Payment Dates means (a) for Base Rate Borrowings, the last
Business Day of each October, January, April and July and the Maturity Date; and
(b) for Alternate Rate Borrowings, the end of the applicable Interest Period
(and if such Interest Period exceeds three months' duration, quarterly,
commencing on the first quarterly anniversary of the first day of such Interest
Period), and, in all cases, the Maturity Date.
Interest Period means, for each Alternate Rate Borrowing, a period
commencing on the date such Alternate Rate Borrowing began and ending on the
numerically corresponding day which is, subject to availability, (a) for each CD
Rate Borrowing, 30, 60, 90 or 180 days thereafter, (b) for each Eurodollar Rate
Borrowing, one, two, three or six months thereafter and (c) for each Negotiated
Rate Borrowing, overnight or no less than seven but no more than 29 days
thereafter, as Borrower shall elect in accordance herewith; provided, (v) any
Interest Period with respect to a Eurodollar Rate Borrowing which would
otherwise end on a day which is not a Eurodollar Business Day shall be extended
to the next succeeding Eurodollar Business Day, unless such Eurodollar Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Eurodollar Business Day; (w) any Interest Period with
respect to a CD Rate Borrowing or Negotiated Rate Borrowing which would
otherwise end on a day which is not a Business Day shall be extended to the next
succeeding Business Day (subject to the provisions of the clause [y] below), (x)
any Interest Period with respect to a Eurodollar Rate Borrowing which begins on
the last Eurodollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Eurodollar Business Day of the
appropriate calendar month; (y) no Interest Period shall ever extend beyond the
Maturity Date; and (z) Interest Periods shall be selected by Borrower in such a
manner that the Interest Period with respect to any portion of the Loans which
shall become due shall not extend beyond such due date.
Investment means the purchase or other acquisition of any securities or
Indebtedness of, or the making of any loan, advance, transfer of Property or
capital contribution to, or the incurring of any liability in respect of the
Indebtedness of, any Person.
Legal Requirement means any law, statute, ordinance, decree,
requirement, order, judgment, rule, or regulation (or interpretation of any of
the foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority, whether presently existing or arising in the future. The
term "Legal Requirement" includes Environmental Laws.
Lien means any mortgage, pledge, charge, encumbrance, security
interest, collateral assignment or other lien or restriction of any kind,
whether based on common law, constitutional provision, statute or contract, and
shall include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other title exceptions.
Loan Availability Period means the period from and including the date
hereof to (but not including) the Termination Date.
Loans means the loans described in and provided for by Section 2.
MAC means Machinery Acceptance Corporation, a Texas corporation.
Majority Lenders means Lenders the aggregate of whose Percentages is
greater than fifty percent (50%).
Margin Percentage means, on any day, the per annum percentage
corresponding to the Interest Bearing Debt to Total Capitalization Ratio
(determined as of the most recent Calculation Date) on such day as provided
below:
Interest Bearing Debt Per Annum
to Total Capitalization Ratio Percentage
0.45 or more to 1.00 0.65%
0.40 or more to 1.00 but less than 0.45 to 1.00 0.45%
0.35 or more to 1.00 but less than 0.40 to 1.00 0.35%
0.30 or more to 1.00 but less than 0.35 to 1.00 0.30%
less than 0.30 to 1.00 0.25%
Maturity Date means the maturity of the Notes, December 20, 2001, as
the same may hereafter be accelerated pursuant to the provisions of any of the
Credit Documents.
Maximum Commitment means Two Hundred Twenty-five Million Dollars
($225,000,000).
Negotiated Base Rate means, for each Interest Period, the rate of
interest per annum quoted by Agent to Borrower at the time of the applicable
request by Borrower for a Negotiated Rate Borrowing as the "Negotiated Base
Rate."
Negotiated Rate means for any day a rate per annum equal to the lesser
of (a) the Negotiated Base Rate in effect of the first day of the Interest
Period for the applicable Negotiated Rate Borrowing and (b) the Ceiling Rate.
Subject to Section 12, the Negotiated Rate is subject to adjustments for
reserves, insurance assessments and other matters as provided for in Section
3(c).
Negotiated Rate Borrowing means each portion of the principal balance
of the Loans at any time bearing interest at the Negotiated Rate.
Net Income means gross revenues and other proper income credits, less
all proper income charges (including Taxes on income), all determined in
accordance with GAAP. Net Income shall be determined on a consolidated basis.
Net Tangible Assets means, as to a particular Person, assets (valued at
cost less normal depreciation) of such Person and its Subsidiaries minus
intangibles of such Person and its Subsidiaries, all determined in accordance
with GAAP.
Notes means the promissory notes of Borrower evidencing the Loans
substantially in the form of Exhibit A, and any and all renewals, extensions,
modifications, rearrangements and/or replacements thereof.
Organizational Documents means the certificate or articles of
incorporation and bylaws of a corporation.
Original Notes shall mean the promissory notes issued pursuant to the
Superseded Loan Agreement.
Past Due Rate shall mean a rate per annum equal to the lesser of
(a) the Base Rate plus four percent (4%)and (b) the Ceiling Rate.
PBGC means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
Percentage means, for any Lender, such Lender's interest in the Maximum
Commitment. The dollar amount of each Lender's interest in the Maximum
Commitment as of the date hereof is set forth opposite such Lender's name on the
signature pages of this Agreement.
Permitted Investments means: (a) readily marketable securities issued
or fully guaranteed by the United States of America with maturities of not more
than one year, (b) financial instruments (including commercial paper) with
maturities of not more than 270 days of Persons, in each case, rated "Prime 2"
or better by Xxxxx'x Investors Service, Inc. or "A-2" or better by Standard and
Poor's Corporation; (c) certificates of deposit, eurodollar deposits or
repurchase obligations having a maturity of not more than one year from the date
of issuance thereof, or tax exempt bonds backed by letters of credit, in each
case, issued by any U.S. domestic bank having capital surplus of at least
$100,000,000 or by any other financial institution acceptable to Majority
Lenders, all of the foregoing; (d) readily marketable shares of any money market
fund having total assets in excess of $250,000,000 and not disapproved in
writing by Majority Lenders; and (e) common stock of Borrower, not to exceed
$50,000,000 in aggregate cost; provided, that the aggregate value of the assets
subject to Section 7(a) consisting of "margin stock" (as defined from time to
time in or pursuant to Regulation U of the Board of Governors of the Federal
Reserve System, or any successor regulation) shall never exceed 25% of the
aggregate value of all assets subject to Section 7(a).
Person means any individual, corporation, partnership, joint venture,
joint stock association, business or other trust, unincorporated organization,
Governmental Authority or any other form of entity.
Plan means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code and is either (a) maintained by Borrower, any Subsidiary of Borrower or any
member of a Controlled Group for employees of Borrower or any of its
Subsidiaries or (b) maintained pursuant to a collective bargaining agreement or
any other arrangement under which more than one employer makes contributions and
to which Borrower or any member of a Controlled Group for employees of Borrower
or any of its Subsidiaries is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions.
Prime Rate means, on any day, the prime rate for that day as announced
from time to time by TCB. Without notice to Borrower or any other Person, the
Prime Rate shall automatically fluctuate upward and downward as and in the
amount by which said prime rate fluctuates, with each change to be effective as
of the date of each change in said prime rate. THE PRIME RATE IS A REFERENCE
RATE AND DOES NOT NECESSARILY REPRESENT THE LOWEST OR BEST RATE OR A FAVORED
RATE, AND AGENT AND LENDERS DISCLAIM ANY STATEMENT, REPRESENTATION OR WARRANTY
TO THE CONTRARY. ANY LENDER MAY MAKE COMMERCIAL LOANS OR OTHER LOANS AT RATES OF
INTEREST AT, ABOVE OR BELOW THE PRIME RATE.
Proper Form means in form and substance satisfactory to Agent and
Majority Lenders.
Property means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
Quarterly Financial Statements means for any fiscal quarter of a Person
the quarterly financial statements of such Person which statements shall include
a balance sheet as of the end of such fiscal quarter and an income statement,
and a statement of cash flows for the fiscal year to date, subject only to
normal year-end adjustments, all setting forth in comparative form the
corresponding figures for the corresponding fiscal quarter of the preceding
year, prepared in accordance with GAAP and certified as presenting fairly the
financial condition and results of operations by the chief financial officer or
treasurer of such Person. The Quarterly Financial Statements for Borrower and
its Subsidiaries shall be prepared on both a consolidated and a consolidating
basis (the parties recognizing that such consolidating statements will be
prepared in accordance with GAAP only to the extent normal and customary and the
statement of cash flows need not be furnished in a consolidating form).
Rate Designation Date means that Business Day which is (a) in the case
of Base Rate Borrowings and Negotiated Rate Borrowings, 10:00 a.m., Houston,
Texas time, on the date of such borrowing; (b) in the case of Eurodollar Rate
Borrowings, 10:00 a.m., Houston, Texas time, on the date two Eurodollar Business
Days preceding the first day of any proposed Interest Period, and (c) in the
case of CD Rate Borrowings, 10:00 a.m., Houston, Texas time, on the Business Day
immediately preceding the first day of any proposed Interest Period.
Rate Designation Notice means a written notice substantially in the
form of Exhibit B.
Regulation D means Regulation D of the Board of Governors of the
Federal Reserve System or any successor from time to time in effect and includes
any successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
Remediation means any action necessary to: (i) comply with and ensure
compliance with the Environmental Laws and (ii) the taking of all reasonably
necessary precautions to protect against and/or respond to, investigate, remove,
remediate or monitor the release or threatened release of Hazardous Substances.
Request for Credit means a request for credit duly executed by an
appropriate officer on behalf of Borrower, appropriately completed and
substantially in the form of Exhibit C attached hereto.
Subsidiary means, as to a particular parent Person, any other Person of
which 50% or more of the indicia of equity rights (whether outstanding capital
stock, partnership interests or otherwise) is at the time directly or indirectly
owned or held by such parent Person, or by one or more of its Affiliates. In
cases herein where reference is made to the Subsidiaries of Borrower, such
references shall not refer to or include 0000 Xxxxx Xxxx Xxxx, Ltd., a Texas
limited partnership, until such time as Borrower or any of its Subsidiaries
becomes the general partner thereof.
Superseded Loan Agreement shall have the meaning ascribed to it in
Section 22.
Tangible Net Worth means total stockholders' equity (adjusted for
treasury stock), less all intangibles, all determined in accordance with GAAP.
Taxes means any tax, levy, impost, duty, charge or fee.
Termination Date means the earlier of (a) the Maturity Date or (b) the
date of termination of the Commitment pursuant to Section 8.
Texas Credit Code means Title 79, Texas Revised Civil Statutes, 1925,
as amended.
Total Capitalization shall mean the sum of (i) all Interest Bearing
Debt and (ii) total stockholders' equity of Borrower (adjusted for treasury
stock).
Unfunded Liabilities means, with respect to any Plan, at any time, the
amount (if any) by which (a) the present value of all benefits under such Plan
exceeds (b) the fair market value of all Plan assets allocable to such benefits,
all determined as of the then most recent actuarial valuation report for such
Plan, but only to the extent that such excess represents a potential liability
of any member of the applicable Controlled Group to the PBGC or a Plan under
Title IV of ERISA.
The words "hereof," "herein," and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not any
particular provision of this Agreement.
2. LOANS.
(a) Loans and Commitments. Subject to the terms and conditions
hereof, each Lender severally agrees to make Loans to Borrower from time to
time during the Loan Availability Period, not to exceed at any time outstanding
such Lender's Percentage of the Commitment, Borrower having the right to borrow,
repay and reborrow. Each Request for Credit by Borrower shall be deemed a
request for a Loan from each Lender equal to such Lender's Percentage of the
aggregate amount so requested, and such aggregate amount shall be equal to the
lesser of (1) an integral multiple of $1,000,000 and (2) the unused portion of
the Commitment. Each repayment of the Loans shall be deemed a repayment of each
Lender's Loans equal to such Lender's Percentage of the aggregate amount so
repaid, and the aggregate amount so repaid shall be equal to the lesser of (i)
an integral multiple of $1,000,000 and (ii) the aggregate unpaid principal
balance of the Notes. The obligations of Lenders hereunder are several and
not joint, and the preceding two sentences will give rise to certain
inappropriate results if special provisions are not made to accommodate the
failure of a Lender to fund a Loan as and when required by this Agreement;
therefore, notwithstanding anything herein to the contrary, (I) no Lender shall
be required to make Loans at any one time outstanding in excess of such Lender's
Percentage of the Commitment or of the requested Loan and (II) if a Lender fails
to make a Loan as and when required hereunder and Borrower subsequently makes a
repayment on the Loans, such repayment shall be split among the non-defaulting
Lenders ratably in accordance with their respective Percentages until each
Lender has its Percentage of all of the outstanding Loans, and the balance of
such repayment shall be divided among all of Lenders in accordance with their
respective Percentages. The Loans shall be evidenced by the Notes.
(b) Reduction in Commitment. Borrower shall have the right to terminate
or permanently reduce the unused portion of the Commitment at any time or from
time to time, provided that Borrower may not decrease the Commitment to an
amount less than the aggregate outstanding principal balance of the Notes.
Each decrease in the Commitment pursuant to this Section shall be permanent and
shall be an integral multiple of $1,000,000. Each notice of a decrease in the
Commitment shall be effective upon the date specified therein; provided that
Agent must receive such notice at least five (5) Business Days prior to its
effective date.
(c) Commitment Fee. In consideration of the Commitment, Borrower agrees
to pay commitment fee (computed on the basis of the actual number of days
elapsed in a year composed of 365 or 366 days, as the case may be) computed by
multiplying the Commitment Fee Percentage from time to time in effect times the
daily average difference between the Commitment and the aggregate principal
balance of the Notes, such commitment fee to be due and payable to Agent for the
account of Lenders on each Interest Payment Date for Base Rate Borrowings before
the Termination Date, and on the Termination Date, in addition to the
installments of interest on the Notes. All past due commitment fees shall bear
interest at the Past Due Rate. Lenders and Borrower agree that Chapter 15 of the
Texas Credit Code shall not apply to this Agreement, the Notes or any Loan.
(d) Mandatory Payments of Principal and Interest. Accrued and unpaid
interest on the unpaid principal balance of the Notes shall be due and payable
on the Interest Payment Dates. The entire unpaid principal balance of each Note
shall be finally due and payable on the Maturity Date. All payments hereon made
pursuant to this Section shall be applied first to accrued interest, the balance
to principal. If any payment provided for in any Note shall become due on a day
other than a Business Day, such payment may be made on the next succeeding
Business Day (unless the result of such extension of time would be to extend the
date of such payment into another calendar month or beyond the Maturity Date,
and in either such event such payment shall be made on the Business Day
immediately preceding the day on which such payment would otherwise have been
due), and such extension of time shall in such case be included in the
computation of interest on the Notes.
(e) Mandatory Prepayments. Borrower shall from time to time prepay the
Loans in such amounts as shall be necessary so that at all times the aggregate
principal amount of all Loans outstanding shall be less than or equal to the
Commitment.
(f) Funding Mechanics for Loans. Agent shall forward a copy of each Request
for Credit to Lenders promptly upon each receipt. Each Lender shall provide
Agent with such Lender's Percentage of each requested Loan in immediately
available funds no later than 12:00 noon Houston time on the date Borrower has
requested such Loan to be made. If any Lender fails to so provide funds to
Agent, Agent may (but shall not be obligated to) advance to Borrower such
Lender's Percentage of such requested Loan; such advance shall be payable by
such Lender on demand and shall bear interest at the Federal Funds Rate. Agent
shall disburse to Lenders all funds received by it from or on account of
Borrower pursuant to the Credit Documents in accordance with the respective
interests of Lenders therein (in accordance with their respective Percentages)
by wire transfer of immediately available funds (1) if such funds are received
by Agent prior to 12:00 noon, Houston, Texas time, on the day of receipt and (2)
if such funds are received by Agent after 12:00 noon, during the next Business
Day, without interest, premium or penalty thereon. If Agent does not so disburse
such funds, such funds shall be payable by Agent on demand and shall bear
interest from the day when due at the Federal Funds Rate. If a Lender owes any
amount to Agent pursuant to this Agreement, Agent shall give notice thereof,
specifying the amount thereof and reasonable detail as to the determination
thereof, to such Lender and the same shall be due and payable on demand and
shall bear interest from the date when due at the Federal Funds Rate.
(g) Sharing of Payments, Etc. If a Lender shall obtain payment of any
principal of or interest on any Loan made by it under this Agreement or on other
Facility Debt then due to such Lender hereunder, through the exercise of any
right of set-off (including, without limitation, any right of setoff or lien
granted under Section 19 hereof), banker's lien, counterclaim or similar right,
or otherwise, it shall promptly purchase from the other Lenders participations
in the Loans made or other Facility Debt held by the other Lenders in such
amounts, and make such other adjustments from time to time as shall be equitable
to the end that all Lenders shall share the benefit of such payment (net of any
expenses which may be incurred by such Lenders in obtaining or preserving such
benefit) pro rata in accordance with their respective Percentages. To such end,
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Borrower agrees, to the fullest extent it may effectively do so
under applicable law, that any Lender so purchasing a participation in the Loans
made or other Facility Debt held, by other Lenders may exercise all rights of
setoff, bankers' lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans or other
Facility Debt in the amount of such participation. Nothing contained herein
shall require any Lender to exercise any such right or shall affect the right of
any Lender to exercise, and retain the benefits of exercising, any such right
with respect to any other Indebtedness of Borrower.
3. INTEREST OPTIONS FOR LOANS.
(a) Options Available. The outstanding principal balances of the Notes
shall bear interest at the Base Rate; provided, that (1) all past due amounts,
both principal and accrued interest, shall bear interest at the Past Due Rate,
and (2) subject to the provisions hereof, Borrower shall have the option of
having all or any portion of the principal balances of the Notes from time to
time outstanding bear interest at an Alternate Rate. The records of Agent with
respect to Interest Options, Interest Periods and the amounts of Loans to which
they are applicable shall be binding and conclusive, absent manifest error.
Interest on the Loans shall be calculated at the Base Rate except where it is
expressly provided pursuant to this Agreement that an Alternate Rate is to
apply. Interest on the amount of each advance against the Notes shall be
computed on the amount of that advance and from the date it is made.
Notwithstanding anything in this Agreement to the contrary, for the full term of
the Notes the interest rate produced by the aggregate of all sums paid or agreed
to be paid to the holder of the Notes for the use, forbearance or detention of
the debt evidenced thereby (including all interest on the Notes at the Stated
Rate plus the Additional Interest) shall not exceed the Ceiling Rate.
(b) Designation and Conversion. Borrower shall have the right to designate
or convert its Interest Options in accordance with the provisions hereof.
Provided no Default has occurred and is continuing and subject to the last
sentence of Section 3(a) and the provisions of Section 3(c), Borrower may elect
to have an Alternate Rate apply or continue to apply to all or any portion of
the principal balance of the Notes. Each change in Interest Options shall be a
conversion of the rate of interest applicable to the specified portion of the
Loans, but such conversion shall not change the respective outstanding principal
balance of the Notes. The Interest Options shall be designated or converted in
the manner provided below:
(i) Borrower shall give Agent telephonic notice, promptly confirmed by a
Rate Designation Notice (in the case of a conversion of an outstanding Loan) or
a Request for Credit (in the case of a new Loan). Each such telephonic and
written notice shall specify the amount of the Loan which is the subject of the
designation, if any; the amount of borrowings into which such borrowings are to
be converted or for which an Interest Option is designated; the proposed date
for the designation or conversion and the Interest Period or Periods, if any,
selected by Borrower. Such telephonic notice shall be irrevocable and shall be
given to Agent no later than the applicable Rate Designation Date.
(ii) No more
than six (6) Alternate Rate Borrowings shall be in effect at any time.
(iii) Each designation or conversion of a Eurodollar Rate Borrowing shall
occur on a Eurodollar Business Day. Each designation or conversion of a CD Rate
Borrowing or a Negotiated Rate Borrowing shall occur on a Business Day.
(iv) Except as provided in Section 3(c), no Alternate Rate Borrowing shall
be converted on any day other than the last day of the applicable Interest
Period.
(c) Special Provisions Applicable to Alternate Rate Borrowings.
(i) Options Unlawful. If the adoption of any applicable Legal Requirement
or any change in any applicable Legal Requirement or in the interpretation or
administration thereof by any Governmental Authority or compliance by Agent or
any Lender with any request or directive (whether or not having the force of
law) of any Governmental Authority shall at any time make it unlawful or
impossible for Agent or any Lender to permit the establishment of or to maintain
any Alternate Rate Borrowing, the commitment to establish or maintain such
Alternate Rate Borrowing shall forthwith be canceled and Borrower shall
forthwith, upon demand by Agent to Borrower, (1) convert the Alternate Rate
Borrowing with respect to which such demand was made to a Base Rate Borrowing or
another Alternate Rate Borrowing; (2) pay all accrued and unpaid interest to
date on the amount so converted; and (3) pay any amounts required to compensate
Agent or any Lender for any additional cost or expense which Agent or any Lender
may incur as a result of such adoption of or change in such Legal Requirement or
in the interpretation or administration thereof and any Funding Loss which Agent
or any Lender may incur as a result of such conversion. If, when Agent so
notifies Borrower, Borrower has given a Rate Designation Notice or a Request for
Credit specifying an Alternate Rate Borrowing but the selected Interest Period
has not yet begun, such Rate Designation Notice or Request for Credit, as the
case may be, shall be deemed to be of no force and effect, as if never made, and
the balance of the Loans specified in such Rate Designation Notice or Request
for Credit, as the case may be, shall bear interest at the Base Rate until a
different available Interest Option shall be designated in accordance herewith.
(ii) Increased Cost of Borrowings. Subject to Section 12, if the adoption
of any applicable Legal Requirement or any change in any applicable Legal
Requirement or in the interpretation or administration thereof by any
Governmental Authority or compliance by Agent or any Lender with any request or
directive (whether or not having the force of law) of any Governmental Authority
shall at any time as a result of any portion of the principal balances of the
Notes being maintained on the basis of an Alternate Rate would:
(1) subject Agent or any Lender (or make it apparent that Agent or any
Lender is subject) to any Taxes, or any deduction or withholding for any Taxes,
on or from any payment due under any Alternate Rate Borrowing or other amount
due hereunder, other than income and franchise taxes of the United States and
its political subdivisions; or
(2) change the basis of taxation of payments due from Borrower to any
Lender under any Alternate Rate Borrowing (otherwise than by a change in the
rate of taxation of the overall net income of such Lender); or
(3) impose, modify, increase or deem applicable any reserve requirement
(excluding that portion of any reserve requirement included in the calculation
of the applicable Alternate Rate), special deposit requirement or similar
requirement (including state law requirements and Regulation D) imposed,
modified, increased or deemed applicable by any Governmental Authority against
assets held by Agent or any Lender, or against deposits or accounts in or for
the account of Agent or any Lender, or against loans made by Agent or any
Lender, or against any other funds, obligations or other property owned or held
by Agent or any Lender; or
(4) impose on Agent or any Lender any other condition regarding any
Alternate Rate Borrowing;
and the result of any of the foregoing is to increase the cost
to Agent or any Lender of agreeing to make or of making,
renewing or maintaining such Alternate Rate Borrowing, or
reduce the amount of principal or interest received by Agent
or any Lender, then, upon demand by Agent, Borrower shall pay
to Agent, from time to time as specified by Agent, additional
amounts which shall compensate Agent and each Lender for such
increased cost or reduced amount. The determination by Agent
or any Lender, as the case may be, of the amount of any such
increased cost, increased reserve requirement or reduced
amount shall be conclusive and binding, absent manifest error.
Each Lender will notify Borrower through Agent of any event
occurring after the date of this Agreement which will entitle
such Lender to compensation pursuant to this Section as
promptly as practicable after it obtains knowledge thereof and
determines to request such compensation.
(iii) Inadequacy of Pricing and Rate Determination. Subject to Section
12, if for any reason with respect to any Interest Period Agent (or, in the
case of clause 3 below, the applicable Lender) shall have determined
(which determination shall be conclusive and binding upon Borrower) that:
(1) Agent is unable through its customary general practices to
determine any applicable Alternate Rate, or
(2) by reason of circumstances affecting the applicable Eurodollar
market, generally, Agent is not being offered deposits in United States dollars
in such market, for the applicable Interest Period and in an amount equal to
the amount of any applicable Alternate Rate Borrowing requested by Borrower, or
(3) any applicable Alternate Rate will not adequately and fairly reflect
the cost to any Lender of making and maintaining such Alternate Rate Borrowing
hereunder for any proposed Interest Period,
Agent shall give Borrower notice thereof and thereupon, (A) any Rate
Designation Notice or Request for Credit previously given by Borrower
designating the applicable Alternate Rate Borrowing which has not commenced as
of the date of such notice from Agent shall be deemed for all purposes hereof to
be of no force and effect, as if never given, and (B) until Agent shall notify
Borrower that the circumstances giving rise to such notice from Agent no longer
exist, each Rate Designation Notice and Request for Credit requesting the
applicable Alternate Rate shall be deemed a request for a Base Rate Borrowing,
and any applicable Alternate Rate Borrowing then outstanding shall be converted,
without any notice to or from Borrower, upon the termination of the Interest
Period then in effect with respect to it, to a Base Rate Borrowing.
(iv) Funding Losses. Borrower shall indemnify Agent and each Lender against
and hold Agent and each Lender harmless from any Funding Loss. This agreement
shall survive the payment of the Notes. A certificate as to any additional
amounts payable pursuant to this Section submitted to Borrower shall be
conclusive and binding upon Borrower, absent manifest error.
(d) Funding Offices; Adjustments Automatic; Calculation Year. Any Lender
may, if it so elects, fulfill its obligation as to any Alternate Rate Borrowing
by causing a branch or Affiliate of such Lender to make such Loan and may
transfer and carry such Loan at, to or for the account of any branch office or
Affiliate of such Lender; provided, that in such event for the purposes of this
Agreement such Loan shall be deemed to have been made by such Lender, and the
obligation of Borrower to repay such Loan shall nevertheless be to such Lender,
as the case may be, and shall be deemed held by it for the account of such
branch or Affiliate. Without notice to Borrower or any other Person, each rate
required to be calculated or determined under this Agreement shall automatically
fluctuate upward and downward in accordance with the provisions of this
Agreement. Interest at the Prime Rate shall be computed on the basis of the
actual number of days elapsed in a year consisting of 365 or 366 days, as the
case may be. All other interest and fees required to be calculated or determined
under this Agreement shall be computed on the basis of the actual number of days
elapsed in a year consisting of 360 days, unless the Ceiling Rate would thereby
be exceeded, in which event, to the extent necessary to avoid exceeding the
Ceiling Rate, the applicable interest and fees shall be computed on the basis of
the actual number of days elapsed in the applicable calendar year in which
accrued.
(e) Funding Sources. Each Lender shall be entitled to fund and maintain its
funding of all or any part of the Loans in any manner it sees fit, it being
understood, however, that for the purposes of this Agreement all determinations
hereunder shall be made as if each Lender had actually funded and maintained
each Alternate Rate Borrowing during each Interest Period through the purchase
of deposits having a maturity corresponding to such Interest Period and bearing
an interest rate equal to the Alternate Rate for such Interest Period.
(f) Stated Rate; Recapture. As used in the Credit Documents, "Stated Rate"
means the effective weighted per annum rate of interest applicable to the Loans;
provided, that if on any day such rate shall exceed the Ceiling Rate for that
day, the Stated Rate shall be fixed at the Ceiling Rate on that day and on each
day thereafter until the total amount of interest accrued at the Stated Rate on
the unpaid principal balance of the Notes plus the Additional Interest equals
the total amount of interest which would have accrued if there had been no
Ceiling Rate. If the Notes mature (or are prepaid) before such equality is
achieved, then, in addition to the unpaid principal and accrued interest then
owing pursuant to the other provisions of the Credit Documents, Borrower
promises to pay on demand to the order of the holders of the Notes interest in
an amount equal to the excess (if any) of (a) the lesser of (i) the total
interest which would have accrued on the Notes if the Stated Rate had been
defined as equal to the Ceiling Rate from time to time in effect and (ii) the
total interest which would have accrued on the Notes if the Stated Rate were not
so prohibited from exceeding the Ceiling Rate, over (b) the total interest
actually accrued on the Notes to such maturity (or prepayment) date. Without
notice to Borrower or any other Person, the Stated Rate shall automatically
fluctuate upward and downward in accordance with the provisions of this
definition.
4. CONDITIONS PRECEDENT.
(a) All Loans. The obligation of any Lender to make any Loan is subject to
the accuracy of all representations and warranties of Borrower in this Agreement
and any other Credit Document on the date thereof as if made on such date (and
such Lender's receipt of evidence of such accuracy), to the performance by
Borrower of its obligations under the Credit Documents (and such Lender's
receipt of evidence of such performance) and to the satisfaction of the
following conditions:
(i) Agent shall have received (1) no later than (A) in the case of a
Negotiated Rate Borrowing, the earlier of (y) 30 minutes from the time that a
Negotiated Rate has been quoted for such Loan and (z) 10:00 a.m., Houston, Texas
time, and (B) in all other cases, 10:00 a.m. Houston, Texas time, on the
applicable Rate Designation Date, telephonic notice from Borrower of the
proposed date and amount of such Loan, and (2) no later than 12:00 noon,
Houston, Texas time, on the applicable Rate Designation Date, a Request for
Credit signed by the President, a Vice President, the Treasurer or the Assistant
Treasurer of Borrower and complete in all material respects. If any telephonic
request for a Loan is received by Agent after the applicable times set forth
above, or if the corresponding Request for Credit for such telephonic request is
not received by 12:00 noon, Houston, Texas time, such telephonic request shall
be treated as having been received on the next Business Day.
(ii) prior to the date thereof, there shall have occurred, in the sole
opinion of Majority Lenders, no material adverse change in the Property,
liabilities, financial condition, business or affairs of Borrower or any of its
Subsidiaries from those reflected in the most recent financial statements
delivered to Lenders as of the date hereof or in the facts warranted or
represented in any Credit Document.
(iii) no Default or Event of Default shall have occurred and be continuing
or will occur as a result of the requested Loan.
(iv) the making of such Loan shall not be prohibited by, or subject Agent
or any Lender to any penalty or onerous condition under, any applicable Legal
Requirement.
(vi) all fees and expenses owed to Agent or any Lender under any of the
Credit Documents as of the date thereof shall have been paid in full. (a) Agent
and Lenders shall have received such other documents as any of them may
reasonably require.
Each such Loan shall be subject to the further condition that, at the time
thereof, all legal matters incident to the transactions herein contemplated
shall be satisfactory to Agent's legal counsel. Delivery of any Request for
Credit to Agent shall constitute a representation by Borrower that the
representations and warranties made by Borrower under this Agreement and the
other Credit Documents are true and correct as of the date of delivery of such
Request for Credit.
(b) First Loan. In addition to the conditions described in Section 4(a),
the obligation of Lenders to make the initial Loan is subject to the following,
in Proper Form: (1) Lenders shall have received their respective Notes and Agent
shall have received the other Credit Documents; (2) Agent shall have received a
duly executed Borrowing Authorization of Borrower; (3) Agent shall have received
a current certificate from the Secretary of State or other appropriate official
of the State of Texas as to the continued existence and good standing of
Borrower, (4) Agent shall have received a legal opinion from the general counsel
for Borrower acceptable to Agent and Majority Lenders.
5. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) Borrower and each of its Subsidiaries (i) is duly organized, validly
existing and in good standing under the laws of the state of its organization
and has full legal right, power and authority to carry on its business as
presently conducted and to execute, deliver and perform its obligations under
the Credit Documents executed by it, and (ii) is duly qualified to do business
and in good standing in each jurisdiction in which the nature of the business it
conducts makes such qualification necessary or desirable.
(b) The execution, delivery and performance of the Credit Documents
executed by Borrower have been duly authorized by all necessary action under
Borrower's Organizational Documents and otherwise.
(c) Borrower's execution, delivery and performance of the Credit Documents
do not and will not require (i) any consent of any other Person or (ii) any
consent, license, permit, authorization or other approval (including foreign
exchange approvals) of any Governmental Authority, or any notice to, exemption
by, any registration, declaration or filing with or the taking of any other
action in respect of, any Governmental Authority.
(d) The execution, delivery and performance of any Credit Document will not
(i) violate any Legal Requirement or the Organizational Documents of Borrower or
any of its Subsidiaries or (ii) conflict with or result in a breach of the
terms, conditions or provisions of, or cause a default under, any agreement,
instrument, franchise, license or concession to which Borrower or any of its
Subsidiaries is a party or by which any of them is bound.
(e) Borrower has duly and validly executed, issued and delivered each
Credit Document to which it is a party. The Credit Documents are in proper legal
form for prompt enforcement and they are Borrower's legal, valid and binding
obligations, enforceable in accordance with their terms. Borrower's obligations
under them rank and will rank at least equal in priority of payment with all of
Borrower's other Indebtedness (except only for Indebtedness preferred by
operation of law or Indebtedness disclosed in writing to Lenders before
execution and delivery of this Agreement).
(f) All information supplied to Agent or any Lender, and all statements
made to Agent or any Lender, by or on behalf of Borrower or any of its
Subsidiaries before, concurrently with or after execution of this Agreement are
and will be true, correct, complete, valid and genuine in all material respects.
The most recent financial statements for Borrower and its Subsidiaries furnished
to Lenders fairly present the financial condition of Borrower and its
Subsidiaries as of their date and for the period then ended in accordance with
GAAP. No material adverse change has occurred in the financial conditions
reflected in the October 31, 1996 statements.
(g) Borrower and each of its Subsidiaries have filed all tax returns
required to be filed and paid all Taxes shown thereon to be due, including
interest and penalties, except for Taxes which are being diligently contested in
good faith and for payment of which adequate reserves have been set aside.
(h) Except as set forth on Schedule I, there is no litigation, condemnation
or other action, suit or proceeding pending--or, to the best of Borrower's
knowledge, threatened--against or affecting Borrower or any of its Subsidiaries,
at law or in equity, or before or by any Governmental Authority, which
individually or together with all other such actions, suits or proceedings
presenting substantially the same issue of fact, involves the assertion of
claims for actual damages in excess of, on an aggregate basis, $1,000,000, or
otherwise might result in any material adverse change in the business or
financial condition or in other Property of Borrower or any of its Subsidiaries
or any interest in it.
(i) Neither Borrower nor any of its Subsidiaries is in default with respect
to any order, writ, injunction, decree or demand of any Governmental Authority,
in the payment of any Indebtedness for borrowed money or under any agreement or
other papers evidencing or securing any such Indebtedness.
(j) Neither Borrower nor any of its Subsidiaries is a party to any contract
or agreement which materially and adversely affects any of their businesses,
Property or financial conditions.
(k) Borrower and its Subsidiaries are now solvent, and no bankruptcy or
insolvency proceedings are pending or contemplated by or--to Borrower's
knowledge--against Borrower or any of its Subsidiaries. Borrower's liabilities
and obligations under the Credit Documents to which it is a party do not and
will not render Borrower insolvent, cause Borrower's liabilities to exceed
Borrower's assets or leave Borrower with too little capital to properly conduct
all of its business as now conducted or contemplated to be conducted.
(l) No representation or warranty contained in any Credit Document and no
statement contained in any certificate, schedule, list, financial statement or
other papers furnished to Agent or any Lender by or on behalf of Borrower
contains--or will contain--any untrue statement of material fact, or omits--or
will omit--to state a material fact necessary to make the statements contained
therein not misleading.
(m) None of the proceeds of any Note will be used for the purpose of
purchasing or carrying, directly or indirectly, any margin stock or for any
other purpose which would make such credit a "purpose credit" within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System.
(n) Borrower and each of its Subsidiaries possess all permits, licenses,
patents, trademarks, tradenames and copyrights required to conduct their
respective businesses.
(o) Borrower and each of its Subsidiaries are in compliance with all
applicable Legal Requirements and Borrower and each of its Subsidiaries manage
and operate (and will continue to manage and operate) their businesses in
accordance with good industry practices.
(p) With respect to each Plan, Borrower and each member of a Controlled
Group for the employees of Borrower or any of its Subsidiaries have fulfilled
their obligations, including obligations under the minimum funding standards of
ERISA and the Code and are in compliance in all material respects with the
provisions of ERISA and the Code. No event has occurred which could result in a
liability of Borrower or any member of a Controlled Group for the employees of
Borrower or any of its Subsidiaries to the PBGC or a Plan (other than to make
contributions in the ordinary course). Since the effective date of Title IV of
ERISA, there have not been any nor are there now existing any events or
conditions that would cause the Lien provided under Section 4068 of ERISA to
attach to any Property of Borrower or any member of a Controlled Group for the
employees of Borrower or any of its Subsidiaries. There are no Unfunded
Liabilities with respect to any Plan. No "prohibited transaction" has occurred
with respect to any Plan.
(q) Neither Borrower nor any of its Subsidiaries is an investment company
within the meaning of the Investment Company Act of 1940, as amended, or,
directly or indirectly, controlled by or acting on behalf of any Person which is
an investment company, within the meaning of said Act.
(r) Neither Borrower nor any of its Subsidiaries is an "affiliate" or a
"subsidiary company" of a "public utility company," or a "holding company," or
an "affiliate" or a "subsidiary company" of a "holding company," as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended ("PUHC
Act") or a "public utility" as defined in the Federal Power Act. Further, none
of the transactions contemplated under this Agreement shall cause or constitute
a violation of any of the provisions, rules, regulations or orders of or under
the PUHC Act and the PUHC Act does not in any manner impair the legality,
validity or enforceability of the Notes or the liabilities of Borrower under any
of the Credit Documents.
(s) Borrower and its Subsidiaries are and have been in compliance with all
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or Environmental Permit, except where failure to be in such compliance could
not reasonably be expected to have a material adverse effect on Borrower and its
Subsidiaries on a consolidated basis. Borrower and its Subsidiaries (i) have
obtained and maintained in effect all Environmental Permits, the failure to
obtain which could reasonably be expected to have a material adverse effect on
Borrower and its Subsidiaries on a consolidated basis, (ii) along with their
Property or any other facility operated, leased, managed or controlled by any of
them are not and have not been subject to nor is there any basis for any (A)
Environmental Claims or (B) Environmental Liabilities arising from or based upon
any act, omission, event, condition or circumstance occurring or existing on or
prior to the date hereof which could reasonably be expected to have or which
within the past five (5) years has had a material adverse effect on Borrower and
its Subsidiaries on a consolidated basis, and (iii) have not received
individually or collectively any notice of any violation or alleged violation of
any Environmental Law or Environmental Permit or any Environmental Claim in
connection with their respective Property or any other facility operated,
leased, managed or controlled by any of them which could reasonably be expected
to have or which within the past five (5) years has had a material adverse
effect on Borrower and its Subsidiaries on a consolidated basis. None of the
off-site locations where Hazardous Substances generated from or in connection
with any property, facility or operations of Borrower or any of its Subsidiaries
have been stored, treated, recycled, disposed of or released has been nominated
or identified as a facility which is subject to an existing or potential claim
under Environmental Laws for which Borrower or any of its Subsidiaries could
reasonably be expected to have liability which individually or aggregately could
have a material adverse effect. Borrower is not aware of any requirement of
Environmental Laws that will require future compliance costs or capital
expenditures on the part of Borrower or any of its Subsidiaries which
individually or aggregately could have a material adverse effect in relationship
to costs or expenditures currently expended in the ordinary course of business.
There are no obligations, undertakings or liabilities arising out of or relating
to Environmental Laws which Borrower or any of its Subsidiaries has agreed to,
assumed or retained, by contract or otherwise which individually or aggregately
could have a material adverse effect.
(t) Borrower's fiscal year ends January 31.
(u) Borrower has no Subsidiaries other than the Subsidiaries listed on
Schedule II. Each such Subsidiary is owned in the percentage set forth opposite
such Subsidiary's name on Schedule II.
(v) All statements made by or on behalf of Borrower in connection with this
Agreement or any other Credit Document shall constitute the joint and several
representations and warranties of the Person making the statement and of
Borrower.
(w) Borrower and each of its Subsidiaries has good and marketable title to
their respective Property free and clear of all material Liens, except for those
permitted in Section 7(a). All rights, permits, easements, servitudes and
rights-of-way included in or necessary to the development, maintenance and
operation of any such Property have been obtained and are in full force and
effect.
(x) Neither Borrower nor any of its Subsidiaries has made any Investment
in, advance to or guaranty of the obligations of any Person, except as set forth
in Schedule III.
(y) All leases of real and personal Property to which Borrower or any of
its Subsidiaries is a lessee are in full force and effect, and no default has
occurred with regard to any such lease.
(z) Neither Borrower nor any agent acting for it has offered the Notes or
any similar obligation of Borrower for sale to or solicited any offers to buy
the Notes or any similar obligations of Borrower from any Person other than
Lenders, and Borrower will take no action which would subject the sale of the
Notes to the provisions of Section 5 of the Securities Act of 1933, as amended,
or any applicable state securities law.
(aa) Borrower and each of its Subsidiaries carries insurance with reputable
insurers in respect of such of its Property, in such amounts and against such
risks as is customarily maintained by other Persons of similar size engaged in
similar businesses.
6. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that prior to
termination of this Agreement:
(a Borrower shall (and shall cause each of its Subsidiaries to) at all
times (i) pay when due all Taxes and governmental charges of every kind upon it
or against its income, profits or Property, unless and only to the extent that
the same shall be contested diligently in good faith and reserves have been
established therefor; (ii) to the extent applicable, do all things necessary to
preserve its existence, qualifications, rights and franchises in all states
where such qualification is necessary or desirable; (iii) comply with all
applicable Legal Requirements (including Environmental Law) in respect of the
conduct of its business and the ownership of its Property; (iv) cause its
Property to be protected, maintained and kept in good repair and make all
replacements and additions to its Property as may be reasonably necessary to
conduct its business properly and efficiently, and (v) pay punctually and
discharge when due, or renew or extend, any Indebtedness incurred by it and
discharge, perform and observe the covenants, provisions and conditions to be
performed, discharged and observed on its part in connection therewith, or in
connection with any agreement or other instrument relating thereto or in
connection with any mortgage, pledge or lien existing at any time upon any of
its Property; provided, however, that nothing contained in this subparagraph (v)
shall require payment, discharge, renewal or extension of any such Indebtedness
or discharge, performance or observance of any such covenants, provisions and
conditions so long as any claims which may be asserted against with respect to
any such Indebtedness or any such covenants, provisions and conditions shall be
contested diligently and in good faith and reserves with respect thereto shall
be established.
(b) Borrower shall furnish or cause to be furnished to Agent and shall
furnish to each Lender (without duplication) three (3) copies of each of the
following: (1) as soon as available and in any event within 120 days after the
end of each fiscal year of Borrower, Annual Financial Statements of Borrower and
its Subsidiaries; (2) as soon as available and in any event within 60 days after
the end of each fiscal quarter (except the last fiscal quarter) of each fiscal
year of Borrower, Quarterly Financial Statements of Borrower and its
Subsidiaries; (3) promptly upon their becoming available, all financial
statements, registration statements (except for registration statements on Form
S-8 covering employee benefit plans), reports and proxy statements which
Borrower or any of its Subsidiaries may file with the Securities and Exchange
Commission from time to time; (4) as soon as available and in any event within
60 days after the end of each fiscal quarter of each fiscal year of Borrower, a
schedule of all contingent liabilities of Borrower and its Subsidiaries as of
the end of the period covered thereby; (5) concurrently with the financial
statements provided for in subsections (1) and (2) of this Section 6(b), such
schedules, computations and other information, in reasonable detail, as may be
required by Agent or any Lender to demonstrate compliance with the covenants set
forth herein or reflecting any non-compliance therewith as of the applicable
date, and a compliance certificate ("Compliance Certificate") in the form of
Exhibit D, duly executed by the chief financial officer, treasurer or assistant
treasurer of Borrower, and (5) such other information relating to the financial
condition, operations, prospects or business of Borrower and its Subsidiaries as
from time to time may be reasonably requested by Agent or any Lender. Each
delivery of a financial statement pursuant to this Section shall constitute a
republication of the representations and warranties contained in Section 5.
(c) Borrower and its Subsidiaries shall have and maintain, on a
consolidated basis, at all times:
(1) an Interest Bearing Debt to Total Capitalization Ratio for Borrower of
not greater than 0.50 to 1.00.
(2) a Tangible Net Worth for Borrower of not less than $350,000,000.
(3) an Interest Coverage Ratio for Borrower of not less than 2.00 to 1.00.
(d) Borrower shall (and shall cause each of its Subsidiaries to) permit
each Lender upon reasonable advance notice to inspect its Property, to examine
its files, books and records and make and take away copies thereof, and to
discuss its affairs with its officers and accountants, all at such times during
normal business hours and such intervals and to such extent as such Lender may
reasonably desire. All such information shall be maintained by Lenders in
confidence and shall not be disclosed to any Person except (a) in connection
with a sale of a Lender's interest hereunder, (b) in connection with the
enforcement or collection of any Credit Document, (c) as may be required or
directed by any Legal Requirement or Governmental Authority, (d) where such
information has become a part of the public domain, and (e) Affiliates of
Lenders.
(e) Borrower shall promptly execute and deliver (or cause to be executed
and delivered), at Borrower's expense, any and all other and further instruments
which may be requested by any Lender or Agent to cure any defect in the
execution and delivery of any Credit Document or more fully to describe
particular aspects of the agreements and undertakings set forth in the Credit
Documents.
(f) Borrower shall (and shall cause each of its Subsidiaries to) maintain
books of record and account in accordance with GAAP.
(g) Borrower shall (and shall cause each of its Subsidiaries to) maintain
insurance with such insurers, on such of its Property, officers, directors and
employees, in such amounts and against such risks as is customarily maintained
by other Persons of similar size to that of, and engaged in businesses
substantially similar to those of, Borrower and its Subsidiaries, and furnish
Agent satisfactory evidence thereof promptly upon request.
(h) Borrower shall notify Agent immediately upon acquiring knowledge of the
occurrence of, or if Borrower or any of its Subsidiaries causes or intends to
cause, as the case may be: (1) the institution of any lawsuit or administrative
proceeding or the existence of an Environmental Claim or Remediation affecting
Borrower or any of its Subsidiaries, the adverse determination under which could
have a material adverse effect on the business, condition (financial or
otherwise), operations, Property or prospects of Borrower or any of its
Subsidiaries or on the ability of Borrower to perform its obligations under any
Credit Document to which it is a party; (2) any material adverse change, either
in any case or in the aggregate, in the assets, liabilities, business, condition
(financial or otherwise), operations, Property or prospects of Borrower or any
of its Subsidiaries; (3) any Event of Default or any Default, together with a
detailed statement by an appropriate officer or other responsible party
acceptable to Agent on behalf of Borrower of the steps being taken to cure the
effect of such Event of Default or Default; (4) the receipt of any notice from,
or the taking of any other action by, the holder of any Indebtedness of Borrower
or any of its Subsidiaries with respect to a claimed default, together with a
detailed statement by an appropriate officer or other responsible party
acceptable to Agent on behalf of Borrower specifying the notice given or other
action taken by such holder and the nature of the claimed default and what
action is being taken or proposed to take with respect thereto; (5) the
occurrence of a default or event of default by Borrower or any of its
Subsidiaries under any agreement to which it is a party, which default or event
of default could reasonably be expected to have a material adverse effect on the
business, condition (financial or otherwise), operations, Property or prospects
of Borrower or any of its Subsidiaries; and (6) any change in the accuracy of
the representations and warranties of Borrower in this Agreement or any other
Credit Document. Borrower shall provide to Agent such information as Agent may
reasonably request regarding any of the enumerated matters set forth in this
paragraph, any developments in connection therewith, and, as applicable, the
Borrower's or its Subsidiary's anticipated or actual response thereto.
(i) Borrower shall promptly furnish to Agent (1) immediately upon receipt,
a copy of any notice of complete or partial withdrawal liability under Title IV
of ERISA and any notice from the PBGC under Title IV of ERISA of an intent to
terminate or appoint a trustee to administer any Plan, (2) if requested by any
Lender, promptly after the filing thereof with the United States Secretary of
Labor or the PBGC or the Internal Revenue Service, copies of each annual and
other report with respect to each Plan or any trust created thereunder, (3)
immediately upon becoming aware of the occurrence of any "reportable event," as
such term is defined in Section 4043 of ERISA, or of any "prohibited
transaction," as such term is defined in Section 4975 of the Code, in connection
with any Plan or any trust created thereunder, a written notice signed by an
appropriate officer or other responsible party acceptable to Agent on behalf of
Borrower or the applicable member of a Controlled Group for employees of
Borrower or any of its Subsidiaries specifying the nature thereof, what action
Borrower or the applicable member of such Controlled Group is taking or proposes
to take with respect thereto, and, when known, any action taken by the PBGC, the
Internal Revenue Service or the Department of Labor with respect thereto, (4)
promptly after the filing or receiving thereof by Borrower or any member of a
Controlled Group for employees of Borrower or any of its Subsidiaries of any
notice of the institution of any proceedings or other actions which may result
in the termination of any Plan, and (5) each request for waiver of the funding
standards or extension of the amortization periods required by Sections 303 and
304 of ERISA or Section 412 of the Code promptly after the request is submitted
by Borrower or any member of a Controlled Group for employees of Borrower or any
of its Subsidiaries to the Secretary of the Treasury, the Department of Labor or
the Internal Revenue Service, as the case may be. To the extent required under
applicable statutory funding requirements, Borrower will fund, and will cause
each of its Subsidiaries to fund, all current service pension liabilities as
they are incurred under the provisions of all Plans from time to time in effect,
and comply with all applicable provisions of ERISA. Borrower covenants that it
shall and shall cause each of its Subsidiaries and each other member of a
Controlled Group for employees of Borrower or any of its Subsidiaries to (a)
make contributions to each Plan in a timely manner and in an amount sufficient
to comply with the contribution obligations under such Plan and the minimum
funding standards requirements of ERISA; (b) prepare and file in a timely manner
all notices and reports required under the terms of ERISA including annual
reports, and (c) pay in a timely manner all required PBGC premiums.
(j) Subject to Section 12, if, after the date of this Agreement, any Lender
shall have determined that the adoption or effectiveness of any applicable law,
rule or regulation regarding capital adequacy, or any change therein or any
change after the date hereof with respect to any existing law, or any change in
the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof or any change after
the date hereof with respect to any existing law, or compliance by such Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority has or would have the
effect of reducing the rate of return on such Lender's capital (or on the
capital of any Person owning or holding a participation interest in the Facility
Debt) as a consequence of its obligations to Borrower with respect to the Loans
to a level below that which could have been achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
A certificate of such Lender setting forth such amount or amounts as shall be
necessary to compensate such Lender as specified in this Section shall be
delivered as soon as practicable to Borrower and shall be conclusive and
binding, absent manifest error. Borrower shall pay such Lender the amount shown
as due on any such certificate within fifteen (15) days after such Lender
delivers such certificate. In preparing such certificate, such Lender may employ
such assumptions and allocations of costs and expenses as it shall in good xxxxx
xxxx reasonable and may use any reasonable averaging and attribution method.
(k) The proceeds of the Loans will be used for general corporate purposes
and working capital for Borrower and its Subsidiaries.
(l) With respect to each Plan, Borrower and each member of a Controlled
Group for the employees of Borrower or any of its Subsidiaries shall fulfil
their obligations, including obligations under the minimum funding standards of
ERISA and the Code, and comply in all material respects with the provisions of
ERISA and the Code and all other applicable laws. Borrower shall not permit any
event to occur which could result in a liability of Borrower or any member of a
Controlled Group for the employees of Borrower or any of its Subsidiaries to the
PBGC or a Plan (other than to make contributions in the ordinary course).
Borrower shall not permit to occur or exist any event or condition that would
cause the Lien provided under Section 4068 of ERISA to attach to any Property of
Borrower or any member of a Controlled Group for the employees of Borrower or
any of its Subsidiaries. Borrower shall not permit to exist any Unfunded
Liabilities with respect to any Plan. Borrower shall not permit to occur any
"prohibited transaction" with respect to any Plan.
7. NEGATIVE COVENANTS. Borrower further covenants and agrees that prior to
termination of this Agreement:
(a) Borrower will not (and will not permit any of its Subsidiaries to)
create or suffer to exist any Lien upon any of its Property now owned or
hereafter acquired, or acquire any Property upon any conditional sale or other
title retention device or arrangement or any purchase money security agreement;
or in any manner directly or indirectly sell, assign, pledge or otherwise
transfer any of its Accounts or contract rights; provided, however, that
Borrower or any of its Subsidiaries may create or suffer to exist: (1)
artisans', mechanics', operators' or drillers' Liens to secure claims for labor,
materials or supplies arising in the ordinary course of business, and Liens for
Taxes, but only to the extent that payment of the foregoing shall not at the
time be due or shall be contested in good faith by appropriate proceedings
diligently conducted and with respect to which appropriate reserves have been
set aside; (2) Liens in effect on the date hereof and disclosed on Schedule IV,
provided that neither the Indebtedness secured thereby nor the Property covered
thereby shall increase; (3) Liens in favor of Agent for the ratable benefit of
all Lenders or in favor of all Lenders on a pari passu basis; (4) deposits or
pledges to secure payment of workers' compensation, unemployment insurance, old
age pensions or other social security, or to secure the performance of bids,
tenders, contracts (other than those relating to borrowed money) or leases or to
secure statutory obligations or surety or appeal bonds, or to secure indemnity,
performance or other similar bonds in the ordinary course of business, or in
connection with contests, to the extent that payment thereof shall not at the
time be due or shall be contested in good faith by appropriate proceedings
diligently conducted and there have been set aside on its books appropriate
reserves with respect thereto; (5) Liens arising out of judgments or awards
against Borrower or any of its Subsidiaries with respect to which Borrower or
such Subsidiary shall be in good faith prosecuting an appeal or a proceeding for
review; (6) Liens consisting of encumbrances, easements or reservations of, or
rights of others for, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, zoning restrictions, restrictions on
the use of real Property and minor defects and irregularities in the title
thereto, landlord's or lessor's liens under leases to which Borrower or any of
its Subsidiaries is a party and other similar encumbrances, none of which
interferes with the use of the Property subject thereto by Borrower or such
Subsidiary in the ordinary conduct of its business; (7) Liens or security
interests on assets of a Subsidiary of Borrower to secure obligations of such
Subsidiary to Borrower or another Subsidiary of Borrower; (8) Liens in or
affecting Property of Borrower or any of its Subsidiaries securing any
Indebtedness representing the purchase price, or any portion thereof, of any
Property acquired or being acquired by Borrower or a Subsidiary, provided that
such Liens shall attach only to Property of Borrower that is financed with such
Indebtedness, and shall be in accordance with or similar to arrangements in
existence as of the date hereof; (9) Liens in or limitations on the use of funds
held in trust securing the repayment of Indebtedness to any Industrial
Development Corporation, and (10) Liens in Property acquired by Borrower that
existed when such Property was acquired (provided, that the Indebtedness which
such Liens secure is not increased).
(b) Borrower will not (and will not permit any of its Subsidiaries to), in
any single transaction or series of transactions, directly or indirectly: (1)
consolidate, terminate, liquidate or dissolve; (2) be a party to any
consolidation, termination, merger or consolidation; (3) modify or amend any of
its Organizational Documents if doing so would have a material adverse effect on
Borrower's ability to repay the Facility Debt; or (4) sell, convey, lease,
transfer or otherwise dispose of assets representing more than 10% of Net
Tangible Assets of Borrower and its Subsidiaries in the aggregate during the
term hereof, or agree to take any such action, except for sale of Inventory in
the ordinary course of business. Borrower will not (and will not permit any of
its Subsidiaries to) pledge, transfer or otherwise dispose of any of the indicia
of equity rights (whether issued and outstanding capital stock, partnership
interests or otherwise) of a Subsidiary or any Indebtedness of a Subsidiary, or
permit any Subsidiary of any such Person to issue any additional indicia of
equity rights (whether issued and outstanding capital stock, partnership
interests or otherwise) other than to its parent. Notwithstanding the foregoing,
(1) Any of Borrower's Subsidiaries may merge or consolidate with Borrower
(provided that Borrower shall be the continuing or surviving Corporation), or
with any one or more of Borrower's Subsidiaries, or with any other Person or
Persons, provided that each surviving Person after any such merger or
consolidation shall be a Subsidiary of Borrower;
(2) Shares of stock and Indebtedness of any Subsidiary of Borrower at any
time owned by or owed to Borrower or any of Borrower's Subsidiaries may be sold
for a cash consideration which represents the fair value (as determined in good
faith by the Board of Directors of Borrower) at the time of sale of the shares
of stock or Indebtedness so sold, provided that the assets of such Subsidiary do
not constitute more than ten percent (10%) of the Net Tangible Assets of
Borrower and all of its Subsidiaries and that such Subsidiary shall not have
contributed more than 10% of Net Income during the most recently completed
fiscal year of Borrower, and, further provided, that upon consummation of such
sale and after giving effect thereto, no Default exists under the Credit
Documents; and
(3) Borrower may merge or consolidate with any other Person provided that
Borrower shall be the surviving Person and as such shall not, immediately after
such merger or consolidation, be in default hereunder.
(c) Borrower will not (and will not permit any of its Subsidiaries to)
enter into any transaction or agreement with any officer, director, partner,
trustee or owner or holder of any indicia of equity rights (whether issued and
outstanding capital stock, partnership interests or otherwise) of Borrower or
any of its Subsidiaries (or any Affiliate of any such Person) unless the same is
upon terms substantially similar to those obtainable from wholly unrelated
sources.
(d) Borrower will not (and, subject to the last sentence of this Section,
will not permit any of its Subsidiaries to) make any Investment in, any Person,
or make any commitment to make any such Investment, except indicia of equity
rights of Borrower's Subsidiaries; Permitted Investments; normal and reasonable
travel advances in the ordinary course of business to employees; stock of or
additional capital contributions to Subsidiaries; customer obligations and
receivables owing to Borrower or any of its Subsidiaries and arising out of
sales or leases made or the rendering of services by Borrower or any of its
Subsidiaries in the ordinary course of business; acquisitions (with or without
recourse and with or without discount) of negotiable instruments evidencing
customer obligations and receivables of Borrower or any of its Subsidiaries and
arising out of sales or leases made by Borrower or any of its Subsidiaries in
the ordinary course of business; acquisitions of Indebtedness of Borrower or any
Subsidiary by Borrower or any other Subsidiary; (8) the guarantee by Borrower of
up to $44,000,000 of a credit facility to be extended to Ave Fenix Energia S.A.
("Ave Fenix") by NationsBank to finance a portion of the cost of acquiring a
160MW electric generating facility in Argentina for which Borrower will sell
approximately $70,000,000 in equipment and obtain a 10-year $20,000,000
operations and maintenance agreement, such credit facility to be on
substantially the same terms and conditions as the facility described by
Borrower to the Agent by letter dated July 28, 1995; provided that the covenants
and events of default contained in such guarantee shall all be less restrictive
on Borrower than those binding upon Borrower under this Agreement; and (9) other
Investments not to exceed an aggregate original cost amount of $50,000,000
outstanding at any one time subject to the provisions of Section 5(m).
Notwithstanding the foregoing, the limitations on Investments set forth above in
this Section shall not apply to those made by MAC so long as the assets of MAC
do not exceed three percent (3%) of the Net Tangible Assets of Borrower and its
Subsidiaries.
(e) Borrower will not do or permit anything that will cause Borrower or any
of its Subsidiaries or any of their respective properties or facilities which
any of them may own, operate, lease, manage or control to be in violation of any
applicable Environmental Laws, or to become subject to any Remediation
obligations or Environmental Claims which may have a material adverse effect
upon Borrower or its Subsidiaries on a consolidated basis.
8. DEFAULT. The occurrence of any of the following events shall constitute
an Event of Default (herein so called) under this Agreement:
(a) any part of the Facility Debt is not paid when due, whether by lapse of
time or acceleration or otherwise.
(b) Borrower or any of its Subsidiaries fails to perform, observe or comply
with--or defaults under--any of the terms, covenants, conditions or provisions
of any Credit Document.
(c) any representation or warranty made in any Credit Document or in any
other report or other paper now or hereafter provided to any Lender or Agent
pursuant or incident to any Credit Document or the Facility Debt proves to have
been untrue or misleading in any material respect as of the date made or deemed
made.
(d) any of Borrower and its Subsidiaries: (i) voluntarily suspends
transaction of business; (ii) becomes insolvent or unable to pay its
Indebtedness as it matures; (iii) commences a voluntary case in bankruptcy or a
voluntary petition seeking reorganization or to effect a plan or other
arrangement with creditors; (iv) makes an assignment for the benefit of
creditors; (v) applies for or consents to the appointment of a receiver or
trustee for any such Person or for any substantial portion of its Property; or
(vi) makes an assignment to an agent authorized to liquidate any substantial
part of its assets.
(e) in respect of any of Borrower and its Subsidiaries: (i) an involuntary
case shall be commenced with any court or other authority seeking liquidation,
reorganization or a creditor's arrangement of any such Person; (ii) an order of
any court or other authority shall be entered appointing any receiver or trustee
for any such Person or for any substantial portion of its Property; or (iii) a
writ or warrant of attachment or any similar process shall be issued by any
court or other authority against any substantial portion of the Property of any
such Person and such petition seeking liquidation, reorganization or a
creditor's arrangement or such order appointing a receiver or trustee is not
vacated or stayed, or such writ, warrant of attachment or similar process is not
vacated, released or bonded off within sixty (60) days after its entry or levy.
(f) dissolution, liquidation or termination of Borrower or any of its
Subsidiaries, except as permitted in Section 7(b).
(g) any action, suit or proceeding shall be commenced against or affecting
any or involving the validity or enforceability of any Credit Document, at law
or in equity, or before any Governmental Authority, which in Majority Lenders'
reasonable judgment, impairs or might impair Lenders' ability to collect the
Facility Debt when due or the enforceability of any Credit Document.
(h) any one or more final judgments in the aggregate for the payment of
money in excess of $100,000 shall be rendered against Borrower or any of its
Subsidiaries and the same shall remain unstayed or undischarged for a period of
30 days or any appeal time provided by applicable law, if longer.
(i) Borrower or any of its Subsidiaries shall be prevented or relieved by
any Governmental Authority from performing or observing any material term,
covenant or condition of any Credit Document.
(j) any change shall occur in the Property, financial condition, business,
operations, affairs or circumstances of Borrower or any of its Subsidiaries
which materially adversely effects Borrower and its Subsidiaries taken as a
whole.
(k) Borrower or any of its Subsidiaries shall fail to pay when due any
principal of or interest on any borrowed money obligation or the holder of such
other obligation declares--or has the right to declare--such obligation due
before its stated maturity because of default; provided, that a default for
purposes of this Section 8(k) shall not be deemed to exist by reason of the
acceleration of the maturity of any such obligation solely by reason of a
default in the performance of a term or condition in any agreement or instrument
under or by which such obligation is created, evidenced or secured, which term
or condition restricts the right of Borrower or any other Person to sell, pledge
or otherwise dispose of any margin stock (as such term is defined in Regulation
U of the Board of Governors of the Federal Reserve System, or any entity
succeeding to all or any part of its functions)) held by Borrower or such other
Person.
(l) Borrower or any of its Subsidiaries shall be in default under or in
violation of any Legal Requirement of any Governmental Authority having
jurisdiction over it or any of its Property; or any Property of any such Person
shall be subject to any Remediation obligation or Environmental Claim which
causes Borrower or any of its Subsidiaries to incur Environmental Liabilities in
excess of $1,000,000.
(m) Borrower or any of its Subsidiaries shall have concealed, removed, or
permitted to be concealed or removed, any part of its Property, with intent to
hinder, delay or defraud any of its creditors, or made or suffered a transfer of
any of its Property which may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law, or shall have made any transfer of its Property to or
for the benefit of a creditor at a time when other creditors similarly situated
have not been paid, or, while insolvent, shall have suffered or permitted any
creditor to obtain a lien upon any of its Property through legal proceedings or
distraint which is not vacated with 30 days from its date.
(n) a Change of Control shall occur.
Upon the occurrence of any Event of Default, and at any time thereafter, the
obligation, if any, to make Loans shall cease and terminate, and Majority
Lenders shall have the right, at their option, to declare the Commitment
terminated (whereupon the Commitment shall be terminated) and to declare the
unpaid balance of the Indebtedness evidenced by the Notes to be immediately due
and payable without further notice (including notice of intent to accelerate and
notice of acceleration), protest or demand or presentment for payment, ALL OF
WHICH ARE HEREBY EXPRESSLY WAIVED BY BORROWER; provided, that in the case of the
occurrence of an Event of Default referred to in Section 8(d) or 8(e), the
Commitment shall be automatically terminated and the unpaid balance of the
Indebtedness evidenced by the Notes (principal and accrued and unpaid interest)
shall be and become automatically due and payable, without notice (including
notice of intent to accelerate and notice of acceleration) and without
presentment, demand or other formalities of any kind, all which are hereby
expressly WAIVED by Borrower; and acting through Agent, to enforce or exercise
any and all powers, rights and remedies available at law or provided in this
Agreement, the Notes, the other Credit Documents or any other document executed
pursuant hereto or in connection herewith.
9. LENDERS' RIGHT TO CURE. If Borrower should fail to comply with any of
its agreements, covenants or obligations under any Credit Document, Agent or any
Lender (in Borrower's name or in its own name) may (but shall have no obligation
to) perform them or cause them to be performed for Borrower's account and at
Borrower's expense. Any and all expenses thus incurred or paid by Agent or such
Lender shall be Borrower's obligations to such Person due and payable on demand,
or if no demand is sooner made, then they shall be due on or before four (4)
years after the respective dates on which they were incurred, and each shall
bear interest from the date such Person pays it until the date Borrower repays
it to such Person, at the Past Due Rate. Upon making any such payment or
incurring any such expense, such Person shall be fully and automatically
subrogated to all of the rights of the Person receiving such payment. The amount
and nature of any such expense and the time when it was paid shall be fully
established by the affidavit of Agent or the applicable Lender or any of such
Person's officers or agents. The exercise of the privileges granted to Agent and
Lenders in this Section shall in no event be considered or constitute a cure of
the default or a waiver of Agent's or any Lender's right at any time after an
Event of Default to declare the Notes to be at once due and payable, but is
cumulative of such right and of all other rights given by this Agreement, the
Notes and the Credit Documents and of all rights given Agent and Lenders by law
or in equity.
10. THE AGENT.
(a) Appointment. Each Lender hereby irrevocably appoints and authorizes
Agent to act on such Lender's behalf and to exercise such powers under the
Credit Documents as are specifically delegated to or required of Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
As to any matters not expressly provided for by the Credit Documents (including
enforcement or collection of the Notes), Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of Majority Lenders, and such instructions shall
be binding upon all Lenders and all holders of the Notes; provided that Agent
shall not be required to take any action which it reasonably believes may (1)
expose it to personal liability or (2) be contrary to the Credit Documents or
applicable Legal Requirements.
(b) Liability. Neither Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it
under or in connection with the Credit Documents (1) with the consent or at the
request of Majority Lenders or (2) in the absence of its or their own gross
negligence or willful misconduct (IT BEING THE EXPRESS INTENTION OF LENDERS THAT
AGENT AND ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES SHALL HAVE NO LIABILITY
FOR ACTIONS AND OMISSIONS UNDER THE CREDIT DOCUMENTS RESULTING FROM ITS OR THEIR
ORDINARY OR CONTRIBUTORY NEGLIGENCE). Without limiting the generality of the
foregoing, Agent (1) may treat the payee of each Note as the holder thereof
until it receives written notice of the assignment or transfer thereof, in
Proper Form and signed by such payee; (2) may consult with legal counsel
(including counsel for Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (3) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with the Credit Documents, other than
those made by Agent in writing; (4) except as otherwise expressly provided
herein, shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of the Credit
Documents or to inspect the Property (including the books and records) of
Borrower; (5) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Documents, and (6) shall incur no liability under or with respect to the
Credit Documents by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, telecopier, cable or telex)
reasonably believed by it to be genuine and signed or sent by the proper party
or parties. Neither of the Co-Agents (except in their capacity as Lenders) shall
have any duties or responsibilities or be subject to any liability under this
Agreement.
(c) TCB a Lender. With respect to its Loans and Notes, TCB shall have the
same rights and powers under the Credit Documents as any other Lender and may
exercise the same as though it were not Agent. The term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include TCB in its individual
capacity. TCB and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, issue letters of credit for the account of, and
generally engage in any kind of business with, Borrower and any Person who may
do business with or own securities of Borrower, all as if it was not Agent and
without any duty to account therefor to Lenders. Without limiting the rights and
remedies of the Banks specifically set forth herein, no other Bank by virtue of
being a Bank hereunder shall have any interest in any such activities, any
present or future guaranty by or for the account of Borrower, any present or
future offset exercised by the Agent in respect of any such other activities, or
any present or future property at any time taken as security for any such other
activities; provided, however, that if any payment in respect of such guaranties
or such property or the proceeds thereof shall be applied to the indebtedness
under this Agreement, each Bank shall be entitled to share in such application
pro rata according to its portion of the indebtedness under this Agreement.
(d) Independent Review. Each Lender acknowledges and agrees that it has,
independently and without reliance upon Agent or any other Lender and based on
the financial statements referred to in Section 5(f) and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges and agrees
that it will, independently and without reliance upon Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
(e) Indemnification. Agent shall not be required to take any action
hereunder or to prosecute or defend any suit in respect of the Credit Documents
unless indemnified to its satisfaction by Lenders against loss, cost, liability
and expense. If any indemnity furnished to Agent shall become impaired, it may
call for additional indemnity and cease to do the acts indemnified against until
such additional indemnity is given. In addition, Lenders agree to indemnify
Agent (to the extent not reimbursed by Borrower), ratably according to their
respective Percentages, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against Agent in any way relating to or arising out of the
Credit Documents or any action taken or omitted by Agent under the Credit
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of Agent. EACH LENDER AGREES, HOWEVER, THAT IT EXPRESSLY INTENDS
UNDER THIS SECTION TO INDEMNIFY AGENT RATABLY AS AFORESAID FOR ALL SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES AND DISBURSEMENTS ARISING OUT OF OR RESULTING FROM THE SOLE OR
CONTRIBUTORY NEGLIGENCE OF AGENT. Without limitation of the foregoing, each
Lender agrees to reimburse Agent promptly upon demand for such Lender's
Percentage of any out-of-pocket expenses (including reasonable counsel fees)
incurred by Agent in connection with the preparation, execution, administration,
or enforcement of, or legal advice in respect of rights or responsibilities
under, the Credit Documents to the extent that Agent is not reimbursed for such
expenses by Borrower. The provisions of this Section shall survive the
termination of this Agreement and/or the payment or assignment of any of the
Notes.
(f) Knowledge of Defaults. Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless it
shall have received written notice from Borrower or a Lender referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." If Agent receives such a notice, it shall give
notice thereof to Lenders; provided that if such notice is received from a
Lender, Agent also shall give notice thereof to Borrower. Agent shall be
entitled to take action or refrain from taking action with respect to such
Default or Event of Default as provided in this Section 10.
(g) Resignation; Removal. Agent may resign at any time by giving written
notice thereof to Lenders and Borrower, and may be removed as agent under the
Credit Documents at any time with or without cause by Majority Lenders. Upon any
such resignation or removal, Majority Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by Majority
Lenders and shall have accepted such appointment within 30 days after the notice
of resignation or removal, then the retiring Agent may, on behalf of Lenders,
appoint a successor, which shall be a commercial bank organized under the laws
of the United States or of any State thereof and having a combined capital and
surplus of at least $100,000,000. Upon the acceptance of any appointment as
Agent under the Credit Documents by a successor, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the retiring Agent shall be discharged from its duties
and obligations under the Credit Documents. After the resignation or removal of
Agent under the Credit Documents, the provisions of this Section 10 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
(h) Reliance by Borrower. In any case requiring approval or consent by
Majority Lenders, Borrower shall be entitled to rely on the written
representation by Agent that Agent has obtained such approval or consent.
11. PARTICIPATION; ASSIGNMENT. Each Lender reserves the right, in its sole
discretion, without notice to Borrower, to sell to any bank, savings and loan,
savings bank, credit union or other deposit-taking financial institution
participations in all or any part of such Lender's Loans, Notes or interest in
the Commitment in which event, the provisions of the Credit Documents shall
inure to the benefit of each purchaser of a participation, but the pro rata
treatment of payments and funding obligations hereunder shall be determined as
if such Lender had not sold such participation. Each Lender may assign any or
all or its rights and obligations under the Credit Documents to any Eligible
Assignee, if such assignment involves the Commitment or such Lender's Note, such
consent not to be unreasonably withheld; provided that (a) no such assignment
shall result in a Lender with an interest in the Commitment of less than
$5,000,000, and (b) each such assignment shall be substantially in the form of
Exhibit E, with the assignor to exchange its Note for a new Note and the
assignee to receive a new Note and with the assignor to have no further right or
obligation with respect to the rights and obligations assumed by the assignee.
Borrower agrees to cooperate with the prompt execution and delivery of documents
reasonably necessary to such assignment process, including the issuance of a new
Note to the assignor (if retaining an interest hereunder) and the assignee
immediately upon delivery to Borrower of the assignor's Note. Upon such
assignment, the assignee shall be a Lender for all purposes under the Credit
Documents and the Percentages (in each case as appropriate) and Percentages of
the assignor and assignee Lenders shall be adjusted appropriately.
12. USURY NOT INTENDED; SAVINGS PROVISIONS. Notwithstanding any provision
to the contrary contained in any Credit Document, it is expressly provided that
in no case or event shall the aggregate of any amounts accrued or paid pursuant
to this Agreement which under applicable laws are or may be deemed to constitute
interest ever exceed the maximum nonusurious interest rate permitted by
applicable Texas or federal laws, whichever permit the higher rate. In this
connection, Borrower and Lenders stipulate and agree that it is their common and
overriding intent to contract in strict compliance with applicable usury laws.
In furtherance thereof, none of the terms of this Agreement shall ever be
construed to create a contract to pay, as consideration for the use, forbearance
or detention of money, interest at a rate in excess of the maximum rate
permitted by applicable laws. Borrower shall never be liable for interest in
excess of the maximum rate permitted by applicable laws. If, for any reason
whatever, such interest paid or received during the full term of the applicable
Indebtedness produces a rate which exceeds the maximum rate permitted by
applicable laws, Lenders shall credit against the principal of such Indebtedness
(or, if such Indebtedness shall have been paid in full, shall refund to the
payor of such interest) such portion of said interest as shall be necessary to
cause the interest paid to Agent produce a rate equal to the maximum rate
permitted by applicable laws. All sums paid or agreed to be paid to Agent or any
Lender for the use, forbearance or detention of money shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the applicable Indebtedness, so that the
interest rate is uniform throughout the full term of such Indebtedness. The
provisions of this Section shall control all agreements, whether now or
hereafter existing and whether written or oral, between or among Borrower, Agent
and/or any Lender.
13. DOCUMENTATION REQUIREMENTS. Each written instrument required by this
Agreement, the Notes or the other Credit Documents to be furnished to Agent or
any Lender shall be duly executed by the person or persons specified (or where
no particular person is specified, by such person as Agent or such Lender shall
require), duly acknowledged where reasonably required by Agent or such Lender
and, in the case of affidavits and similar sworn instruments, duly sworn to and
subscribed before a notary public duly authorized to act by Governmental
Authority; shall be furnished to Agent or such Lender in one or more copies as
required by such Lender; and shall in all respects be in form and substance
satisfactory to Agent or such Lender and to its legal counsel.
14. SURVIVAL. All covenants, agreements, representations and warranties
made by Borrower in this Agreement, the other Credit Documents and any other
document executed pursuant hereto or in connection herewith, and in any
certificates or other documents or instruments delivered pursuant to this
Agreement, the other Credit Documents or any other document executed pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement, the other Credit Documents and the other documents executed
pursuant hereto or in connection herewith, and shall continue in full force and
effect until full payment of Facility Debt, complete performance of all of the
obligations of Borrower under the Credit Documents and final termination of
Lenders' obligations--if any--to make any further advances under the Notes or to
provide any other financial accommodation to Borrower (provided, however, that
all reimbursement obligations, indemnification and hold harmless obligations and
other similar obligations of Borrower under any of the Credit Documents shall
survive such payment, performance and termination). All such covenants,
agreements, representations and warranties shall be binding upon any successors
and assigns of Borrower, but any attempted assignment of any rights of Borrower
hereunder without the prior written consent of Majority Lenders shall be null
and void. No Person other than Borrower shall have any right or action hereon or
any rights to Loans at any time, the Loans shall not constitute a trust fund for
the benefit of any third parties and no third party shall under any
circumstances have or be entitled to any Lien or any trust impressed on any
undisbursed Loans.
15. BORROWER AGREES TO PAY OR REIMBURSE AGENT'S EXPENSES; INDEMNIFICATION.
To the extent not prohibited by applicable law, Borrower will pay all costs and
expenses and reimburse Agent for any and all reasonable expenditures of every
character incurred or expended from time to time, regardless of whether an Event
of Default shall have occurred, in connection with the preparation, negotiation,
documentation, closing, renewal, revision, modification, increase, review or
restructuring of any loan or credit facility secured by the Credit Documents,
including legal, accounting, auditing, architectural, engineering and inspection
services and disbursements, and shall pay Agent and Lenders for any and all
reasonable expenditures of every character incurred or expended in connection
with collecting or attempting to enforce or collect any Credit Document.
Provided, that no right or option granted by Borrower to Agent or any Lender or
otherwise arising pursuant to any provision of any Credit Document shall be
deemed to impose or admit a duty on Agent or any Lender to supervise, monitor or
control any aspect of the character or condition of any operations conducted in
connection therewith for the benefit of Borrower or any Person other than Agent
or such Lender. Borrower shall indemnify Agent, Lenders and each Affiliate
thereof and their respective directors, officers, employees and agents from, and
hold each of them harmless against, any and all losses, liabilities (including
Environmental Liabilities), claims (including Environmental Claims), expenses
(including reasonable attorneys' fees) or damages to which any of them may
become subject, insofar as such losses, liabilities, claims, expenses or damages
arise out of or result from (a) any actual or proposed use by Borrower of the
proceeds of any Loan made by any Lender or growing out of or resulting from any
Credit Document or any transaction or event contemplated therein; (b) violation
by Borrower or any of its Subsidiaries of any law, rule, regulation or order
including Environmental Laws; (c) any Lender or Agent being deemed an operator
of any of Borrower's real or personal Property by a court or other regulatory or
administrative agency or tribunal or other third party, to the extent such
losses, liabilities, claims or damages arise out of or result from any Hazardous
Substance, or (d) any investigation, litigation or other proceeding (including
any threatened investigation or proceeding) relating to any of the foregoing.
The obligations of the Borrower under this Section shall survive the termination
of this Agreement and the repayment of the Loans. Any amount to be paid under
this Section by Borrower to Agent or any Lender shall be a demand obligation
owing by Borrower to Agent or such Lender and shall bear interest from the date
of expenditure until paid at the Past Due Rate.
16. AMENDMENTS IN WRITING. This Agreement shall not be changed orally but
shall be changed only by agreement in writing signed by Borrower, Agent and all
Lenders. Any waiver or consent with respect to this Agreement shall be effective
only in the specific instance and for the specific purpose for which given. No
course of dealing between the parties, no usage of trade and no parol or
extrinsic evidence of any nature shall be used to supplement or modify any of
the terms or provisions of this Agreement.
17. NOTICES. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by (a) delivering it
against receipt for it, (b) depositing it with an overnight delivery service or
by depositing it in a receptacle maintained by the United States Postal Service,
postage prepaid, registered or certified mail, return receipt requested,
addressed to the respective parties at the addresses shown herein (and if so
given, shall be deemed given when mailed), or (c) by telecopy (provided, that
notice by telecopy is intended for the convenience of the Person giving such
notice and the Person receiving such notice may rely on, and shall not be liable
for acting or refraining from acting upon, any notice, instruction or request
purporting to have been signed or presented by the proper Person). Borrower's
address for notice may be changed at any time and from time to time, but only
after 30 days' advance written notice to Agent and Lenders and shall be the most
recent such address furnished in writing by Borrower to Agent and Lenders.
Agent's address for notice may be changed at any time and from time to time, but
only after ten days' advance written notice to Borrower and shall be the most
recent such address furnished in writing by Agent to Borrower and Lenders. Any
Lender's address for notice may be changed at any time and from time to time,
but only after ten days' advanced notice to Borrower, Agent and the other
Lenders and shall be the most recent such address furnished in writing by such
Lender to Borrower, Agent and the other Lenders. Actual notice, however and from
whomever given or received, shall always be effective when received.
Notwithstanding anything to the contrary contained in the Section, any notice
required or permitted to be given to Agent under Section 2 shall be effective
only when actually received by Agent. Notices given by telecopy shall be
effective on the day transmitted; provided, that telecopies transmitted after 5
p.m. Houston time shall be deemed sent on the next succeeding Business Day.
18. "INCLUDING" IS NOT LIMITING; SECTION HEADINGS AND REFERENCES; EXHIBITS,
ETC. Wherever the term "including" or a similar term is used in this Agreement,
it shall be read as if it were written "including by way of example only and
without in any way limiting the generality of the clause or concept referred
to." The headings used is this Agreement are included for reference only and
shall not be considered in interpreting, applying or enforcing this Agreement.
References in any Credit Document to paragraph or section numbers are references
to paragraphs or sections, as the case may be, to such Credit Document.
References in any Credit Document to Exhibits, Schedules, Annexes and Appendices
are to the Exhibits, Schedules, Annexes and Appendices to such Credit Document
and they shall be deemed incorporated into such Credit Document by reference.
19. OFFSET RIGHTS. Each Lender is hereby authorized at any time and from
time to time, without notice to any Person (and Borrower hereby WAIVES any such
notice) to the fullest extent permitted by law, to set-off and apply any and all
monies, securities and other Property of Borrower now or in the future in the
possession, custody or control of such Lender, or on deposit with or otherwise
owed to Borrower by such Lender--including all such monies, securities and other
Property held in general, special, time, demand, provisional or final accounts
or for safekeeping or as collateral or otherwise (but excluding those accounts
clearly designated as escrow or trust accounts held by Borrower for others
unaffiliated with Borrower)--against any and all of Borrower's obligations to
Agent or any Lender now or hereafter existing under this Agreement, irrespective
of whether any demand shall have made under this Agreement. Each Lender agrees
to use reasonable efforts to promptly notify Borrower after any such set-off and
application, provided that failure to give--or delay in giving--any such notice
shall not affect the validity of such set-off and application or impose any
liability on such Lender. Each Lender's rights under this Section are in
addition to other rights and remedies (including other rights of set-off) which
such Lender may have. Borrower is hereby authorized, without notice to any
Person (and Lenders hereby WAIVE any such notice), to set-off and apply against
any and all amounts from time to time owing to any Lender hereunder or under
such Lender's Note, any and all of such Lender's obligation to Borrower pursuant
to any general, special, time, demand, provisional or final account with such
Lender to the extent (but only to the extent) that such account is not insured
by the Federal Deposit Insurance Corporation and Borrower incurs a loss thereof
as a result of the bankruptcy, insolvency, liquidation, dissolution or other
cessation of business by such Lender. Borrower's rights under this Section are
in addition to other rights and remedies (including other rights of set-off)
which Borrower may have at law or in equity with respect to a failed financial
institution.
20. VENUE. THIS AGREEMENT IS PERFORMABLE IN XXXXXX COUNTY, TEXAS, WHICH
SHALL BE A PROPER PLACE OF VENUE FOR SUIT ON OR IN RESPECT OF THIS AGREEMENT.
BORROWER IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING IN RESPECT OF THIS
AGREEMENT SHALL BE BROUGHT IN THE DISTRICT COURTS OF XXXXXX COUNTY, TEXAS OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON
DIVISION (COLLECTIVELY, THE "SPECIFIED COURTS"). BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE
STATE OF TEXAS. BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
CREDIT DOCUMENT BROUGHT IN ANY SPECIFIED COURT, AND HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIMS THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE SPECIFIED COURTS IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO BORROWER AT ITS ADDRESS AS
PROVIDED IN THIS AGREEMENT OR AS OTHERWISE PROVIDED BY TEXAS LAW. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF AGENT OR ANY LENDER TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST BORROWER IN ANY JURISDICTION OR TO SERVE PROCESS IN
ANY MANNER PERMITTED BY APPLICABLE LAW. BORROWER AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
APPLICABLE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA FROM TIME
TO TIME IN EFFECT.
21. RIGHTS CUMULATIVE; DELAY NOT WAIVER. Agent's or any Lender's exercise
of any right, benefit or privilege under any of the Credit Documents or any
other papers or at law or in equity shall not preclude the concurrent or
subsequent exercise of Agent's or any Lender's other present or future rights,
benefits or privileges. The remedies provided in this Agreement are cumulative
and not exclusive of any remedies provided by law, the Credit Documents or any
other papers; provided, however, that to the extent of any conflict between any
provision of this Agreement and any provision contained in any Note, the other
Credit Documents or any other document executed pursuant hereto or in connection
herewith, the provisions of this Agreement shall control. Every power, right or
remedy of Agent or any Lender set forth in this Agreement, the Notes, the other
Credit Documents or any other document executed pursuant hereto or in connection
herewith, or afforded by law may be exercised from time to time, and as often as
may be deemed expedient by the Person entitled to enforce or exercise such. No
failure by Agent or any Lender to exercise, and no delay in exercising, any
right under any Credit Document or any other papers shall operate as a waiver
thereof.
22. ENTIRE AGREEMENT; FORMER AGREEMENT SUPERSEDED. This Agreement embodies
the entire agreement and understanding among Borrower and Agent and Lenders
relating to the subject matter hereof and supersedes all prior proposals,
agreements and understandings relating to such subject matter. The other Credit
Documents are incorporated herein by reference; however, in the event and to the
extent of any conflict, the provisions of this Agreement shall control. Without
limiting the effect of the foregoing provisions of this Section 22, this
Agreement supersedes all of the terms and provisions of that certain Loan
Agreement dated as of September 3, 1993, by and among Borrower, TCB individually
and as agent, and the financial institutions party thereto, as amended from time
to time (collectively, the "Superseded Loan Agreement"). All rights of Borrower
to request loans under the Superseded Loan Agreement are hereby terminated.
23. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, the legality, validity
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby, and this Agreement shall be liberally construed so as to carry
out the intent of the parties to it. Each waiver in this Agreement is subject to
the overriding and controlling rule that it shall be effective only if and to
the extent that (a) it is not prohibited by applicable law and (b) applicable
law neither provides for nor allows any material sanctions to be imposed against
Agent or any Lender for having bargained for and obtained it.
24. RELEASE OF CLAIMS. Borrower hereby releases, discharges and acquits
forever Agent and Lenders and their respective officers, directors, trustees,
agents, employees and counsel (in each case, past, present or future) from any
and all Claims existing as of the date hereof (or the date of actual execution
hereof by Borrower, if later) including those arising pursuant to the Superseded
Loan Agreement and/or any of the Original Notes. As used herein, the term
"Claim" shall mean any and all liabilities, claims, defenses, demands, actions,
causes of action, judgments, deficiencies, interest, liens, costs or expenses
(including court costs, penalties, attorneys' fees and disbursements, and
amounts paid in settlement) of any kind and character whatsoever, including
claims for usury, breach of contract, breach of commitment, negligent
misrepresentation or failure to act in good faith, in each case whether now
known or unknown, suspected or unsuspected, asserted or unasserted or primary or
contingent, and whether arising out of written documents, unwritten
undertakings, course of conduct, tort, violations of laws or regulations or
otherwise.
25. COUNTERPARTS. This Agreement may be executed in several identical
counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument.
26. ASSIGNMENT TO FEDERAL RESERVE BANK. Notwithstanding any other language
in this Agreement, any Lender shall may at any time assign all or any portion of
its rights under this Agreement, its Note and the Credit Documents to a Federal
Reserve Bank as collateral in accordance with Regulation A and the applicable
operating circular of such Federal Reserve Bank.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE ss.26.02
THIS AGREEMENT, THE NOTES AND THE OTHER CREDIT DOCUMENTS AND ALL OTHER
CREDIT DOCUMENTS EXECUTED BY ANY OF THE PARTIES SUBSTANTIALLY CONCURRENTLY
HEREWITH CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH 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.
XXXXXXX & XXXXXXXXX SERVICES, INC.,
a Texas corporation
By:/s/ Xxxxxx X. Xxxxxxxx
Name:Xxxxxx X. Xxxxxxxx
Title:CEO
Address for Notices:
If by mail:
Xxxxxxx & Xxxxxxxxx Services, Inc.
P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Chief Financial Officer
If by hand delivery or telecopy:
Xxxxxxx & Xxxxxxxxx Services, Inc.
0000 Xxxxx Xxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopier No. (000) 000-0000
TEXAS COMMERCE BANK
NATIONAL
ASSOCIATION, a national banking
association acting in its individual
capacity and as Agent for Lenders
named herein
By:/s/ Xxxx X. Xxxx
Name:Xxxx X. Xxxx
Title:Vice President
Address for Notices:
Texas Commerce Bank
National Association
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, Manufacturing and Oilfield
Services Division
Telecopy No. (000) 000-0000
Interest in
Maximum
Commitment: $50,000,000
BANK OF AMERICA ILLINOIS,
an Illinois banking association
as a Co-Agent and a Lender
By:/s/ Xxxxxx Xxx
Xxxxxx Xxx
Vice President
Address for Notices:
Bank of America Illinois
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Bank of America Illinois
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
Interest in
Maximum
Commitment: $40,000,000
NATIONSBANK OF TEXAS, N.A., a national
banking association
By:/s/ Forest Xxxxx Xxxxxxxx
Name:Forest Xxxxx Xxxxxxxx
Title:Senior Vice President
Address for Notices:
NationsBank of Texas, N.A.
000 Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Corporate Banking Group
Telecopy No.: (000) 000-0000
Interest in
Maximum
Commitment: $40,000,000
ABN AMRO BANK N.V., HOUSTON AGENCY
By: ABN AMRO NORTH AMERICA, INC., its agent
By:/s/ Xxxxxxx X. Xxxxxxxxx
Name:Xxxxxxx X. Xxxxxxxxx
Title:Officer
By:/s/ Xxxxxx X. Xxxxx
Name:Xxxxxx X. Xxxxx
Title:Group Vice President & Director
Address for Notices:
ABN AMRO Bank N.V., Houston Agency
Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention:
Telecopy No. (000) 000-0000
Interest in
Maximum
Commitment: $30,000,000
THE BANK OF NEW YORK,
a New York banking corporation
By:/s/ Xxxxxxx X. xxxxxx
Name:Xxxxxxx X. Xxxxxx
Title:Vice President
Address for Notices:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:Xxxx Xxxxxx, Xx.
Telecopy No.: (000) 000-0000
Interest in
Maximum
Commitment: $30,000,000
PNC BANK, NATIONAL
ASSOCIATION,
a national banking association
By:/s/ Xxxxxx X. X'Xxxxxx
Name:Xxxxxx X. X'Xxxxxx
Title:Vice President
Address for Notices:
PNC Bank, National Association
One Pnc Plaza
000 Xxxxx Xxxxxx
XX P1-XXXX-02-2
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Interest in
Maximum
Commitment: $20,000,000
FIRST NATIONAL BANK OF
COMMERCE,
a national banking association
By:/s/ Xxxxxx X. Xxxxxxxx
Name:Xxxxxx X. Xxxxxxxx
Title:Relationship Manager
Address for Notices:
First National Bank of Commerce
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Interest in
Maximum
Commitment: $15,000,000
