Exhibit 10.9
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT (the
"Amendment"), dated as of January 22, 2001, is among LENNOX INTERNATIONAL INC.,
a Delaware corporation (the "Borrower"), each of the lenders listed as a lender
on the signatures pages hereto (individually, a "Lender" and, collectively, the
"Lenders"), THE CHASE MANHATTAN BANK, as successor in interest by merger to
Chase Bank of Texas, National Association, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), WACHOVIA BANK, N.A., a
national banking association, as syndication agent (in such capacity, the
"Syndication Agent" and together with the Administrative Agent, herein the
"Agents") and THE BANK OF NOVA SCOTIA, as documentation agent.
The Borrower, the Agents and the Lenders have entered into that certain
Revolving Credit Facility Agreement dated as of July 29, 1999 (as amended by the
First Amendment to Revolving Credit Facility Agreement dated as of August 6,
1999 and the Second Amendment to Revolving Credit Facility Agreement dated as of
January 25, 2000, the "CREDIT AGREEMENT"). The Borrower, the Lenders and the
Agents desire to add a letter of credit facility to the Credit Agreement and
otherwise amend the Credit Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows effective as of the date
hereof:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used in this Amendment and
defined in the Credit Agreement, to the extent not otherwise defined herein,
shall have the same meaning as in the Credit Agreement, as amended hereby.
ARTICLE 2
AMENDMENTS
Section 2.1 AMENDMENT TO REFERENCES TO "CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION". All references to Chase Bank of Texas, National Association in the
Credit Agreement are amended to read "The Chase Manhattan Bank, successor in
interest by merger to Chase Bank of Texas, National Association".
Section 2.2 AMENDMENT TO INTRODUCTION OF CREDIT AGREEMENT. The second
paragraph of the introduction of the Credit Agreement is amended in its entirety
to read as follows:
The Lenders have been requested to extend credit to the Borrower to
enable it, upon the terms and subject to the conditions set forth herein,
to borrow on a revolving credit basis and request the issuance of letters
of credit, in each case on and after the Effective Date and at any time
prior to the Maturity Date (as hereinafter defined). The proceeds of any
such borrowings are to be used to refinance existing indebtedness, to make
acquisitions, for capital expenditures and working capital and for other
general corporate purposes. Letters of Credit issued hereunder shall be
issued to support transactions of the Borrower and its Subsidiaries. The
Lenders are willing to extend such credit on the terms and subject to the
conditions herein set forth.
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 1
Section 2.3 ADDITION TO SECTION 1.01. The following definitions are added
to Section 1.01 of the Credit Agreement in proper alphabetical order:
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Applicable
Percentage shall be determined based upon the Commitments in effect
immediately prior to such expiration or termination.
"ISSUING BANK" shall mean The Chase Manhattan Bank, in its capacity as
issuer of Letters of Credit or any successor thereto permitted hereunder.
The Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of the Issuing Bank, in which case the
term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LETTER OF CREDIT" shall have the meaning assigned it in Section 2.19.
"LETTER OF CREDIT LIABILITIES" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time
plus (b) the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Borrower at such time. The Letter of
Credit Liabilities of any Lender at any time shall be its Applicable
Percentage of the total Letter of Credit Liabilities at such time.
"REVOLVING EXPOSURE" shall mean, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Loans
and its participating interest in the outstanding Letters of Credit (or, if
determined with respect to a Lender who is the Issuing Bank, its direct
interests in outstanding Letters of Credit minus all other Lenders'
participation interests therein whether or not notice of any such
participation shall have been given).
Section 2.4 AMENDMENT TO SECTION 1.01. The following definitions in SECTION
1.01 of the Credit Agreement are amended in their entirety to read as follows:
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or net loss) of the Borrower and its Restricted Subsidiaries for such
period, determined in accordance with GAAP, excluding:
(a) the proceeds of any life insurance policy;
(b) any gain arising from (1) the sale or other disposition of any
assets (other than current assets) to the extent that the aggregate amount
of gains exceeds the aggregate amount of losses from the sale, abandonment
or other disposition of assets (other than current assets and other than
the losses excluded from Consolidated Net Income under clause (f) below),
(2) any write-up of assets, or (3) the acquisition by the Borrower or any
Restricted Subsidiary of its outstanding securities constituting
Indebtedness;
(c) any amount representing the interest of the Borrower or any
Restricted Subsidiary in the undistributed earnings of any other Person;
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 2
(d) any earnings of any other Person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with the
Borrower or a Restricted Subsidiary and any earnings, prior to the date of
acquisition, of any other Person acquired in any other manner;
(e) any deferred credit (or amortization of a deferred credit) arising
from the acquisition of any Person;
(f) any non-recurring loss arising from the sale or other disposition
of any asset in 2001 but only to the extent that the aggregate amount of
such losses is less than $25,000,000; and
(g) any non-recurring restructuring charges recorded in 2001 but only
to the extent that the aggregate amount of such restructuring charges is
less than $25,000,000.
"FEES" shall mean the fees identified in Section 2.04.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR
Borrowing or the payment of the Letter of Credit fee under Section 2.04(c),
each March 31, June 30, September 30 and December 31, beginning on the
first such date after the date hereof; (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable thereto and, in the
case of such a Eurodollar Loan with an Interest Period of more than three
months, each day that would have been an Interest Payment Date for such
Eurodollar Loan had successive Interest Periods of three months duration,
as the case may be, been applicable to such Eurodollar Loan; (c) in
addition, with respect to all Loans, the date of any prepayment thereof and
the Maturity Date; and (d) with respect to the payment of the Letter of
Credit fee under Section 2.04(c), the Maturity Date.
Section 2.5 AMENDMENT TO SECTION 2.01. Section 2.01 of the Credit Agreement
is amended in its entirety to read as follows:
SECTION 2.01. COMMITMENTS.
Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make advances (each such advance a "Loan") to
the Borrower, at any time and from time to time on and after the date
hereof and until the earlier of the Maturity Date or the termination of the
Commitment of such Lender, in an aggregate principal amount at any time
outstanding not to exceed such Lender's Commitment, subject, however, to
the condition that the Revolving Exposure of a Lender shall not exceed such
Lender's Commitment and the total Revolving Exposures of all Lenders shall
not exceed the Total Commitment. Within the foregoing limits, the Borrower
may borrow, pay or prepay and reborrow Loans hereunder, on and after the
Effective Date and prior to the Maturity Date, subject to the terms,
conditions and limitations set forth herein.
Section 2.6 AMENDMENT TO SECTION 2.02. Clause (a) of Section 2.02 of the
Credit Agreement is amended in its entirety to read as follows:
(a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their Applicable Percentage;
provided, however, that the failure of any Lender to make any Loan shall
not in itself relieve any other Lender of its obligation to lend hereunder
(it being understood, however, that no
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 3
Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). The Loans comprising any
Borrowing shall be in an aggregate principal amount which is an integral
multiple of $1,000,000 and not less than $5,000,000 (or an aggregate
principal amount equal to the remaining balance of the Total Commitment
less the total Revolving Exposure of all Lenders).
Section 2.7 AMENDMENT TO SECTION 2.02. The first sentence of clause (c) of
Section 2.02 of the Credit Agreement is amended in its entirety to read as
follows:
(c) Subject to paragraph (d) below, each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New
York, not later than 11:00 a.m., New York, New York time, and the
Administrative Agent shall by 2:00 p.m., New York, New York time, credit
the amounts so received to the account or accounts specified from time to
time in one or more notices delivered by the Borrower to the Administrative
Agent or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders or, if such Borrowing is to finance the
reimbursement of an LC Disbursement, such amounts shall be distributed to
the Issuing Bank.
Section 2.8 AMENDMENT TO SECTION 2.04.
(a) Clause (a) of Section 2.04 of the Credit Agreement is amended to add
the following sentence to the end of the paragraph:
A Lender's Commitment shall be deemed used by the aggregate amount of all
Loans made by the Lender and such Lender's Applicable Percentage of the
Letter of Credit Liabilities.
(b) Clause (c) of Section 2.04 of the Credit Agreement is amended in its
entirety to read as follows:
(c) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the rate equal
to the Applicable Margin (as defined and determined in accordance with
Section 2.06 (d)) on the average daily amount of such Lender's Applicable
Percentage of the Letter of Credit Liabilities (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the
date on which such Lender's Commitment terminates and the date on which
such Lender ceases to have any Letter of Credit Liabilities, and (ii) to
the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125%
per annum on the average daily amount of the Letter of Credit Liabilities
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to
but excluding the later of the date of termination of the Commitments and
the date on which there ceases to be any Letter of Credit Liabilities, as
well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through
and including each Interest Payment Date shall be payable on the third
Business Day following such Interest Payment Date, commencing on the first
such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 4
shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand.
All participation fees and fronting fee shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) Clause (d) is added to Section 2.04 of the Credit Agreement to read in
its entirety as follows:
(d) The Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of
fees payable to it) for distribution, if and as appropriate, among the
Lenders or Agents. Once paid, none of such Fees shall be refundable under
any circumstances.
Section 2.9 AMENDMENT TO SECTION 2.06. The last sentence of clause (d) of
Section 2.06 of the Credit Agreement is amended to in its entirety to read as
follows:
If the Borrower fails to deliver such Compliance Certificate which so sets
forth the Debt to Adjusted EBITDA Ratio within the period of time required
by Section 5.20(g): (i) the Applicable Margin (for Interest Periods
commencing after the applicable Adjustment Date) shall automatically be
adjusted to 1.250% per annum; and (ii) the Commitment Fee Percentage shall
automatically be adjusted to 0.300% per annum, such automatic adjustments
to take effect as of the first Business Day after the last day on which the
Borrower was required to deliver the applicable Compliance Certificate in
accordance with Section 5.20(g) and to remain in effect until subsequently
adjusted in accordance herewith upon the delivery of a Compliance
Certificate
Section 2.10 AMENDMENT TO SECTION 2.09.
(a) Clause (a) of Section 2.09 of the Credit Agreement is amended in its
entirety to read as follows:
(a) The commitment of the Issuing Bank to issue Letters of Credit
under Section 2.19 and the Commitments of the Lenders shall automatically
be terminated on the Maturity Date. Such commitments may also terminate as
provided in Section 2.10(c) and Article 6.
(b) Clause (b) of Section 2.09 of the Credit Agreement is amended to add
the following sentence to the end of the paragraph:
Upon the termination of the Total Commitment, the commitment of the Issuing
Bank to issue Letters of Credit under 2.19 shall also terminate.
Section 2.11 AMENDMENT TO SECTION 2.10.
(a) Clause (b) of Section 2.10 of the Credit Agreement is amended in its
entirety to read as follows:
(b) On the date of any termination or reduction of the Total
Commitment pursuant to Section 2.09, the Borrower shall pay or prepay so
much of the Borrowings as shall be necessary in order that the aggregate
outstanding principal amount of the Loans will not exceed the sum of the
Total Commitment minus all Letter of Credit Liabilities, after giving
effect to such termination or reduction.
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 5
(b) The first paragraph of clause (c) of Section 2.10 of the Credit
Agreement is amended in its entirety to read as follows:
(c) At least 15 Business Days (or, in the case of any transaction
permitted by Section 5.10 resulting in a Change of Control, at least 45
days) and not more than 90 days prior to the occurrence of any Change of
Control, the Borrower will give written notice thereof to each Lender. Such
notice shall contain (i) an offer by the Borrower to prepay, on the date of
such Change of Control or, if such notice shall be delivered less than 35
days prior to the date of such Change of Control, on the date 35 days after
the date of such notice (the "Prepayment Date"), all Loans made by each
Lender, together with interest accrued thereon to the Prepayment Date and
all other liquidated obligations owed to such Lender under the terms
hereof, (ii) the estimated amount of accrued interest, showing in
reasonable detail the calculation thereof and (iii) the Borrower's estimate
of the date on which such Change of Control shall occur. Said offer shall
be deemed to lapse as to any such Lender which has not replied
affirmatively thereto in writing within 35 days of the giving of such
notice. As soon as practicable (and in any event at least 24 hours) prior
to such Change of Control, the Borrower shall give written confirmation of
the date thereof to each such Lender that has affirmatively replied to the
notice given pursuant to the first sentence of this Section 2.10(c).
Borrower shall, on the Prepayment Date, prepay to each Lender that has
affirmatively replied to the notice given pursuant to the first sentence of
this Section 2.10(c) all Loans and all other liquidated obligations owed to
such Lender under the terms hereof. Thereupon, each Lender that shall have
received such prepayment shall have no further obligation to make Loans or
participate in Letters of Credit made or issued after the Prepayment Date
and the Total Commitment shall be reduced by the amount of each such
Lender's Commitment; provided that each Lender that shall have received
such prepayment shall continue to have a participation interest in any
Letter of Credit issued prior to the Prepayment Date and shall be entitled
to the continued payment of the Fees paid in respect thereof. The
participation interests described in the foregoing sentence shall be
calculated based on the Applicable Percentages determined immediately prior
to the Prepayment Date and each such Lender shall continue to be obligated
to fund its participation interest therein as herein specified as if no
prepayment had occurred. Any Loan made after the Prepayment Date shall be
made by the remaining Lenders and such Lenders shall have participation
interests in any Letter of Credit issued after the Prepayment Date based on
their Applicable Percentages (calculated without including the Commitments
of the Lenders that shall have received the prepayment under this Section
2.10 (c)). If requested by the Agent or the Lenders who are to receive
prepayment under this Section 2.10 (c), the Borrower shall use its
commercially reasonable efforts to cause all Letters of Credit that are to
be outstanding as of the Prepayment Date to be terminated as of the
Prepayment Date or as soon thereafter as is possible.
Section 2.12 AMENDMENT TO SECTION 2.11. Section 2.11 of the Credit
Agreement is amended in its entirety to read as follows:
SECTION 2.11 RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall change the basis of taxation of payments to
the Issuing Bank or any Lender hereunder (except for changes in
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 6
respect of taxes on the overall net income of the Issuing Bank or such
Lender or its lending office imposed by the jurisdiction in which its
principal executive office or lending office is located), or shall result
in the imposition, modification or applicability of any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by any Lender or the Issuing Bank, or shall
result in the imposition on any Lender, the Issuing Bank or the London
interbank market of any other condition affecting this Agreement, such
Lender's Commitment, any Eurodollar Loan made by such Lender or any Letter
of Credit or participation interest therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Issuing Bank
of making or maintaining any Eurodollar Loan or issuing, maintaining or
participating in any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or Issuing Bank hereunder (whether of
principal, interest or otherwise) by an amount deemed by such Lender or the
Issuing Bank to be material, then the Borrower shall, upon receipt of the
notice and certificate provided for in Section 2.11(c), promptly pay to
such Lender or the Issuing Bank, as applicable, such additional amount or
amounts as will compensate such Lender or the Issuing Bank for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption of any law, rule, regulation or guideline arising out of the July
1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and
Capital Standards," or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in
any of the foregoing or in the interpretation or administration of any of
the foregoing by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such Lender) or the
Issuing Bank or any Lender's or the Issuing Bank's holding company with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the
Issuing Bank's holding company, if any, as a consequence of this Agreement,
such Lender's Commitment, the Loans made by such Lender pursuant hereto, or
any Letter of Credit or participation interest therein to a level below
that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy) by an amount deemed by such
Lender or the Issuing Bank to be material, then from time to time such
additional amount or amounts as will compensate such Lender or the Issuing
Bank for any such reduction suffered will be paid by the Borrower to such
Lender or the Issuing Bank, as applicable.
(c) A certificate of each affected party setting forth such amount or
amounts as shall be necessary to compensate such party or its holding
company as specified in paragraph (a) or (b) above, as the case may be, and
containing an explanation in reasonable detail of the manner in which such
amount or amounts shall have been determined, shall be delivered to the
Borrower, and shall be conclusive absent manifest error. The Borrower shall
pay each Lender or the Issuing Bank, as applicable, the amount shown as due
on any such certificate delivered by it within 10 days after its receipt of
the same. Each Lender or the Issuing Bank shall give prompt notice to the
Borrower of any event of which it has knowledge, occurring after the date
hereof, that it
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 7
has determined will require compensation by the Borrower pursuant to this
Section; provided, however, that failure by such Lender or the Issuing Bank
to give such notice shall not constitute a waiver of such party's right to
demand compensation hereunder.
(d) Failure on the part of any party to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction
in return on capital of the type described in paragraph (a) or (b) of this
Section 2.11 with respect to any period shall not constitute a waiver of
such party's right to demand compensation with respect to such period or
any other period; provided, however, that neither any Lender nor the
Issuing Bank shall be entitled to compensation under this Section 2.11 for
any costs incurred or reductions suffered with respect to any date unless
it shall have notified the Borrower that it will demand compensation for
such costs or reductions under paragraph (c) above not more than 90 days
after the later of (i) such date and (ii) the date on which it shall have
become aware of such costs or reductions. The protection of this Section
shall be available to each Lender and the Issuing Bank regardless of any
possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have
occurred or been imposed.
(e) Each Lender and the Issuing Bank agrees that it will designate a
different lending or issuing office, as applicable, if such designation
will avoid the need for, or reduce the amount of, such compensation and
will not, in its reasonable judgment, be disadvantageous to its interests.
Section 2.13. AMENDMENT TO SECTION 2.15. Clause (a) of Section 2.15 of the
Credit Agreement is amended in its entirety to read as follows:
(a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any Fees or other amounts hereunder) from an
account in the United States not later than 12:00 noon, New York, New York
time, on the date when due in dollars to the Administrative Agent at its
offices at 1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081 or,
in the case of payments to be made directly to another party hereto in
accordance with the terms hereof, to such party as such party shall direct,
in each case, in immediately available funds. All payments made by the
Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff.
Section 2.14 AMENDMENT TO SECTION 2.16.
(a) Clause (a) of Section 2.16 of the Credit Agreement is amended in its
entirety to read as follows:
(a) Any and all payments of principal and interest on any Borrowings,
or of any Fees or indemnity or expense reimbursements by the Borrower
hereunder ("Borrower Payments") shall be made, in accordance with Section
2.15, free and clear of and without deduction for any and all current or
future federal, state, local and other governmental taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect to
the Borrower Payments, but only to the extent reasonably attributable to
the Borrower Payments, excluding (i) income taxes imposed on the net income
of either Agent, the Issuing Bank or any Lender (or any transferee or
assignee thereof, including a participation holder (any such entity a
"Transferee")) and (ii) franchise taxes imposed on the net income of either
Agent, the Issuing Bank or any Lender (or Transferee), in each
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 8
case by the jurisdiction under the laws of which such party (or Transferee)
is organized or doing business through offices or branches located therein,
or any political subdivision thereof (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities, collectively or
individually, "Taxes"). If the Borrower shall be required to deduct any
Taxes from or in respect of any sum payable hereunder to the respective
Agent, the Issuing Bank or any Lender (or any Transferee), (i) the sum
payable shall be increased by the amount (an "additional amount") necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.16) such party
(or Transferee) (as the case may be) shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) Clauses (c) and (d) of Section 2.16 of the Credit Agreement are amended
in their entirety to read as follows:
(c) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender (or Transferee thereof) for the full amount of Taxes
and Other Taxes with respect to Borrower Payments paid by such party (or
Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate setting forth and containing an explanation in
reasonable detail of the manner in which such amount shall have been
determined and the amount of such payment or liability prepared by the
Administrative Agent, the Issuing Bank or a Lender, absent manifest error,
shall be final, conclusive and binding for all purposes. Such
indemnification shall be made within 30 days after the date the applicable
party makes written demand therefor.
(d) If either Agent, the Issuing Bank or a Lender (or Transferee)
shall become aware that it is entitled to claim a refund from a
Governmental Authority in respect of Taxes or Other Taxes as to which it
has been indemnified by the Borrower, or with respect to which the Borrower
has paid additional amounts, pursuant to this Section 2.16, it shall
promptly notify the Borrower of the availability of such refund claim and
shall, within 30 days after receipt of a request by the Borrower, make a
claim to such Governmental Authority for such refund at the Borrower's
expense. If such party receives a refund (including pursuant to a claim for
refund made pursuant to the preceding sentence) in respect of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower had paid additional amounts pursuant to this
Section 2.16, it shall within 30 days from the date of such receipt pay
over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this
Section 2.16 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all of its out-of-pocket expenses and without interest
(other than interest paid by the relevant Governmental Authority with
respect to such refund); provided, however, that the Borrower, upon the
request of such party, agrees to repay the amount paid over to the Borrower
(plus penalties, interest or other charges) under this Section 2.16(d) in
the event the party is required to repay such refund to such Governmental
Authority.
(c) Clauses (i) and (j) of Section 2.16 of the Credit Agreement are amended
in their entirety to read as follows:
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 9
(i) Any Agent, the Issuing Bank or any Lender (or Transferee) claiming
any indemnity payment or additional amounts payable pursuant to this
Section 2.16 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document reasonably
requested in writing by the Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would
avoid the need for or reduce the amount of any such indemnity payment or
additional amounts that may thereafter accrue and would not, in the good
faith determination of the Administrative Agent, the Issuing Bank or such
Lender (or Transferee), be otherwise disadvantageous to its interests.
(j) Nothing contained in this Section 2.16 shall require any Agent,
the Issuing Bank or any Lender (or Transferee) to make available to the
Borrower any of its tax returns (or any other information) that it deems to
be confidential or proprietary.
Section 2.15 ADDITION OF SECTION 2.19. Section 2.19 of the Credit Agreement
is added to the Credit Agreement following Section 2.18 of the Credit Agreement
to read in its entirety as follows:
SECTION 2.19. LETTERS OF CREDIT. Subject to the terms and conditions
set forth herein, the Borrower may request the issuance of letters of
credit (each a "Letter of Credit") for its own account or for its or a
Subsidiary's benefit, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time on and after
the date hereof until the earlier of five Business Days prior to the
Maturity Date or the termination of the Commitments hereunder. In the event
of any inconsistency between the terms and conditions of this Agreement and
the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the
Borrower with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(a) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (b) of this Section), the amount
of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew
or extend such Letter of Credit. If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing
Bank's standard form (or in such other form as may be mutually agreed
between the Borrower and the Issuing Bank) in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the Letter of Credit Liabilities shall
not exceed $25,000,000 and (ii) the total Revolving Exposures of all
Lenders shall not exceed the Total Commitment.
(b) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the date that is five Business Days prior to the
Maturity Date.
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 10
(c) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in such Letter of Credit equal to
such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the Borrower on the date due as provided in
paragraph (d) of this Section, or of any reimbursement payment required to
be refunded to the Borrower for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or Event of Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever;
provided that (i) the obligations of a Lender to fund its participation in
a Letter of Credit may be subject to avoidance by that Lender if (A) the
Issuing Bank knew (or with the exercise of care should have known) that the
conditions to the issuance of the Letter of Credit were not satisfied or
(B) the Issuing Bank failed to exercise care when determining whether
drafts and other documents presented under the Letter of Credit complied
with the terms thereof and (ii) a Lender shall not have an obligation to
acquire or fund a participation in a Letter of Credit if that obligation of
the Lender has been terminated or assigned to another Person in accordance
with Section 2.10(c) or Section 8.04. The parties hereto expressly agree
that, in the absence of gross negligence or willful misconduct on the part
of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care.
(d) REIMBURSEMENT. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such
LC Disbursement not later than 12:00 noon, New York, New York time, on the
date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York, New York
time, on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than 12:00 noon,
New York, New York time, on (i) the Business Day that the Borrower receives
such notice, if such notice is received prior to 10:00 a.m., New York, New
York time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Borrower receives such notice, if such notice is
not received prior to such time on the day of receipt; provided that the
Borrower may, subject to the conditions to borrowing set forth herein,
request that such payment be financed with a Loan, and, to the extent so
financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting Loan. If the Borrower fails to
make such reimbursement payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender
shall pay to the Administrative Agent its Applicable Percentage of the
reimbursement payment then due from the Borrower, and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it
from the Lenders. Promptly following receipt by the Administrative Agent of
any payment from the Borrower pursuant to this paragraph, the
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 11
Administrative Agent shall distribute such payment to the Issuing Bank or,
to the extent that Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as
their interests may appear. Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than
the funding of a Loan as contemplated above) shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(e) OBLIGATIONS ABSOLUTE. The Borrower's obligations to reimburse LC
Disbursements as provided in paragraph (d) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter
of Credit, or (iv) any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a
right of setoff against, the Borrower's obligations hereunder. Neither the
Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
agents, officers or employees, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter
of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under
or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms
or any consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank's failure
to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined
by a court of competent jurisdiction), the Issuing Bank shall be deemed to
have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit, the Issuing
Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(f) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether
the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 12
relieve the Borrower of its obligation to reimburse the Issuing Bank and
the Lenders with respect to any such LC Disbursement.
(g) INTERIM INTEREST. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made in accordance
with paragraph (d) of this Section, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (d) of this Section, then Section 2.07 shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (c) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(h) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of
the Issuing Bank. At the time any such replacement shall become effective,
the Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to this Agreement. From and after the
effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of the Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term "Issuing Bank" shall be deemed to refer
to such successor or to any previous Issuing Bank, or to such successor and
all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters
of Credit issued by it prior to such replacement, but shall not be required
to issue additional Letters of Credit.
Section 2.16 AMENDMENT TO ARTICLE 3. The introductory sentence of Article 3
of the Credit Agreement is amended in its entirety to read as follows:
Borrower represents and warrants to each of the Lenders and the Issuing
Bank as follows:
Section 2.17 AMENDMENT TO ARTICLE 3.02. Section 3.02 of the Credit
Agreement is amended in its entirety to read as follows:
SECTION 3.02 AUTHORIZATION. The execution, delivery and performance by
the Borrower of this Agreement, the Borrowings hereunder and the issuance
of Letters of Credit hereunder (collectively, the "Transactions") (a) have
been duly authorized by all requisite corporate action and (b) will not (i)
violate (A) any provision of any law, statute, rule or regulation to which
the Borrower is subject or of the certificate of incorporation or other
constituent documents or by-laws of the Borrower or any of its
Subsidiaries, (B) any order of any Applicable Governmental Authority or (C)
any provision of any Material indenture, agreement or other instrument to
which the Borrower or any of its Subsidiaries is a party or by which it or
any of its property is or may be bound (including the 364 Day Revolving
Credit Facility Agreement dated as of January 25, 2000, as amended, among
Borrower, The Chase Manhattan Bank, as administrative agent and the other
parties named therein and the Senior Note Purchase Agreements and the
Indebtedness limitations set forth in Sections 10.4 and 10.9 of the Senior
Note Purchase
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 13
Agreements), (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon any property or assets of the Borrower.
Section 2.18 AMENDMENT TO SECTION 3.12. Section 3.12 of the Credit
Agreement is amended in its entirety to read as follows:
SECTION 3.12 USE OF PROCEEDS; MARGIN REGULATION. The Borrower will
apply the proceeds of the Loans to refinance existing indebtedness, to make
acquisitions, for capital expenditures, for working capital and for other
general corporate purposes. The Letters of Credit shall be issued to
support transactions of the Borrower and the Subsidiaries entered into in
the ordinary course of business. Without limiting the generality of the
forgoing, the Borrower agrees to use the proceeds of the first Loans made
hereunder and the net proceeds of its initial public offering consummated
in 1999 to repay in full all obligations outstanding in connection with the
following agreements (the "Existing Credit Agreements"):
(i) The Advance Term Credit Agreement dated March 16, 1999 among
Borrower, Chase Bank of Texas, National Association, as administrative
agent, and Wachovia Bank, N. A., as documentation agent; and
(ii) Revolving Credit Facility Agreement dated July 13, 1998 among
Borrower, Chase Bank of Texas, National Association, as administrative
agent, Wachovia Bank, N. A., as documentation agent and the lenders named
therein.
The Borrower agrees that on the date that the first Loans are made
hereunder all the commitments of the lenders under the Existing Credit
Agreements are terminated and of no further force or effect. No part of the
proceeds from the Loans will be used, directly or indirectly, for the
purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board (12 CFR 221), or for the purpose of buying or
carrying or trading in any securities under such circumstances as to
involve the Borrower in a violation of Regulation X of the Board (12 CFR
224) or to involve any broker or dealer in a violation of Regulation T of
the Board (12 CFR 220). Margin stock does not constitute more than 5% of
the value of the consolidated assets of the Borrower and its Restricted
Subsidiaries and the Borrower does not have any present intention that
margin stock will constitute more than 5% of the value of such assets. As
used in this Section, the terms "MARGIN STOCK" and "PURPOSE OF BUYING OR
CARRYING" shall have the meanings assigned to them in said Regulation U.
Section 2.19 AMENDMENT TO SECTION 4.01. Section 4.01 of the Credit
Agreement is amended in its entirety to read as follows:
SECTION 4.01 ALL BORROWINGS. The obligations of the Lenders to make
Loans and the obligation of the Issuing Bank to issue, amend, renew or
extend Letters of Credit are subject to the satisfaction of the following
conditions on the date of each Borrowing or issuance:
(a) The Administrative Agent shall have received a notice of such
Borrowing, issuance, amendment or other modification as required by Section
2.03 or 2.19(a), as applicable.
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 14
(b) The representations and warranties set forth in Article 3 hereof
shall be true and correct in all material respects on and as of the date of
such Borrowing, issuance, amendment or other modification with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing, issuance,
amendment or other modification no Event of Default or Default shall have
occurred and be continuing.
Each Borrowing and each issuance, amendment or other modification of a
Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Borrowing, issuance, amendment
or other modification as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.
Section 2.20 AMENDMENT TO ARTICLE 5. The first sentence of Article 5 of the
Credit Agreement is amended in its entirety to read as follows:
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any obligation to acquire or fund any participation in any
Letter of Credit or the Issuing Bank is obligated to issue any Letter of
Credit, or any amount payable hereunder remains unpaid:
Section 2.21 AMENDMENT TO SECTION 5.15. Clause (b) in Section 5.15 of the
Credit Agreement is amended in its entirety to read as follows:
(b) CONSOLIDATED INDEBTEDNESS TO ADJUSTED EBITDA. As of the last day
of each fiscal quarter during the periods described below, the Borrower
shall not permit the ratio of Consolidated Indebtedness outstanding as of
such day to the Adjusted EBITDA for the four (4) fiscal quarters then ended
to exceed: (i) 3.00 to 1.00 at all times other than as described in the
following clause (ii); or (ii) 3.25 to 1.00 for all fiscal quarters ending
prior to September 30, 2001 if, and only if prior to any such fiscal
quarter end Borrower shall have delivered to the Administrative Agent
evidence satisfactory to it that the holders of the Indebtedness
outstanding under the Senior Note Purchase Agreements and the holders of
any other Indebtedness that have the benefit of a Consolidated Indebtedness
to Adjusted EBITDA ratio the same or similar to this Section 5.15(b), shall
have agreed to a maximum ratio not to exceed 3.25 to 1.00 for all fiscal
quarters ending prior to September 30, 2001.
Section 2.22 AMENDMENT TO ARTICLE 6.
(a) Clause (a) in the first sentence of Article 6 of the Credit Agreement
is amended in its entirety to read as follows:
(a) the Borrower defaults in the payment of any principal on any Loan
or the reimbursement of any LC Disbursement, in each case when the same
becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise; or
(b) The final paragraph of Article 6 of the Credit Agreement is amended in
its entirety to read as follows:
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 15
then, and in every such event, and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith
the right of the Borrower to borrow hereunder or to request the issuance,
amendment, extension or renewal or other modification of any Letter of
Credit, (ii) exercise any rights that may be available upon an Event of
Default to terminate or cancel any outstanding Letters of Credit, and (iii)
declare the Loans and all reimbursement obligations for LC Disbursements,
then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans and the reimbursement obligations for
LC Disbursements, so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of
the Borrower accrued hereunder, shall become forthwith due and payable,
without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein to the contrary
notwithstanding; provided that in the case of any event described in
paragraph (g) or (h) above with respect to the Borrower, all the
Commitments of the Lenders and the obligation of the Issuing Bank hereunder
to issue Letters of Credit shall automatically terminate and the principal
amount of all Loans and all reimbursement obligations for LC Disbursements,
then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder
shall automatically become due and payable, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding.
Section 2.23 AMENDMENT TO ARTICLE 7. Article 7 of the Credit Agreement is
amended in its entirety to read as follows:
ARTICLE 7. THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement,
The Chase Manhattan Bank is hereby appointed to act as Administrative
Agent, on behalf of the Lenders and the Issuing Bank. Each of the Lenders
and the Issuing Bank hereby irrevocably authorizes the Administrative Agent
to take such actions on behalf of such Lender or the Issuing Bank and to
exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof, together with such actions and
powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Bank, without
hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Bank, as applicable, all payments of principal of
and interest on the Loans and all other amounts due to the Lenders and the
Issuing Bank hereunder, and promptly to distribute to each Lender and the
Issuing Bank its share of each payment so received; (b) to give notice on
behalf of each of the Lenders and the Issuing Bank to the Borrower of any
Event of Default of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to
each Lender and the Issuing Bank copies of all notices, financial
statements and other materials delivered by the Borrower pursuant to this
Agreement as received by the Administrative Agent.
Neither Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted
by any of them except for its or his or her own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 16
connection herewith, or be required to ascertain or to make any inquiry
concerning the performance or observance by the Borrower of any of the
terms, conditions, covenants or agreements contained in this Agreement. The
Administrative Agent shall not be responsible to the Lenders or the Issuing
Bank for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or other instruments or agreements;
provided that the foregoing exclusion shall not have the effect of
releasing the Administrative Agent from its stated responsibilities herein
to receive executed agreements, documents and instruments on behalf of the
Lenders and the Issuing Bank. The Administrative Agent may deem and treat
the Lender which makes any Loan or participates in the obligation to
reimburse the Issuing Bank for any LC Disbursement as the holder of the
indebtedness resulting therefrom for all purposes hereof until it shall
have received notice from such Lender, given as provided herein, of the
transfer thereof. The Administrative Agent shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders and the Issuing Bank.
The Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it
in good faith to be genuine and correct and to have been signed or sent by
the proper Person or Persons. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall have any responsibility
to the Borrower on account of the failure of or delay in performance or
breach by any Lender or the Issuing Bank of any of its obligations
hereunder or any Lender on account of the failure of or delay in
performance or breach by any Lender or the Issuing Bank or the Borrower of
any of their respective obligations hereunder or in connection herewith.
The Administrative Agent may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice
of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good
faith by it in accordance with the advice of such counsel.
The Lenders and the Issuing Bank hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this
Agreement unless it shall be requested in writing to do so by the Required
Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign
at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent who must be acceptable to the
Borrower and shall be selected from the Lenders unless no Lender agrees to
accept such appointment. If no successor shall have been so appointed by
the Required Lenders, no approval of the Borrower obtained and such
successor shall not have accepted such appointment, all within 30 days
after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a bank having a
combined capital and surplus of at least $500,000,000 or an Affiliate of
any such bank. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor bank, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After the
Administrative Agent's resignation hereunder, the provisions of this
Article and
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 17
Section 8.05 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
With respect to the Loans, the Administrative Agent, in its individual
capacity as a Lender and not as Administrative Agent shall have the same
rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its Applicable Percentage of any expenses incurred
for the benefit of the Lenders or the Issuing Bank in its role as
Administrative Agent, including reasonable counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders or
the Issuing Bank, which shall not have been reimbursed by the Borrower AND
(II) TO INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE AGENT AND ANY OF ITS
DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, ON DEMAND, IN THE AMOUNT OF SUCH
APPLICABLE PERCENTAGE, FROM AND AGAINST ANY AND ALL LIABILITIES, TAXES,
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 IT IN ANY WAY RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR ANY ACTION TAKEN OR OMITTED BY IT UNDER
THIS AGREEMENT TO THE EXTENT THE SAME SHALL NOT HAVE BEEN REIMBURSED BY THE
BORROWER (INCLUDING WITHOUT LIMITATION, ALL LIABILITIES, TAXES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES, OR DISBURSEMENTS ARISING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE
OF THE ADMINISTRATIVE AGENT); PROVIDED THAT NO LENDER SHALL BE LIABLE TO
THE ADMINISTRATIVE AGENT 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
THE ADMINISTRATIVE AGENT OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR
AGENTS.
Each Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement or any related
agreement or any document furnished hereunder or thereunder.
Wachovia Bank, N.A. has been designated as the Syndication Agent
hereunder and The Bank of Nova Scotia has been designated as the
documentation agent in recognition of the level of their respective
Commitments. Neither Wachovia Bank, N.A. nor The Bank of Nova Scotia is an
agent for the Lenders and shall not have any obligation hereunder other
than those existing in its capacity as Lender.
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 18
Section 2.24 AMENDMENT TO SECTION 8.01. Clauses (a) and (b) of Section 8.01
of the Credit Agreement are amended in their entirety to read as follows:
(a) if to Borrower, at its principal executive offices at 0000 Xxxx
Xxxx Xxxx., Xxxxxxxxxx, Xxxxx 00000, to the attention of Chief Financial
Officer, Telecopy No. 972/497-6042 with a copy to the Vice President and
Corporate Treasurer, Telecopy No. 972/497-6940;
(b) if to the Administrative Agent or the Issuing Bank, to The Chase
Manhattan Bank, 0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, Attention of
Xxxxx Xxxx, (Telecopy No. 214/965-2044), with a copy to The Chase Manhattan
Bank, 1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000;
Attention: Xxxxxxx Xxxxxxx, Telephone 212/000-0000; Telecopy No.
212/552-7490; and
Section 2.25 AMENDMENT TO SECTION 8.02. Section 8.02 of the Credit
Agreement is amended in its entirety to read as follows:
SECTION 8.02 SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon
by the Lenders and shall survive the making by the Lenders of the Loans or
the acquisition and funding of participations in Letters of Credit or the
issuance by Issuing Bank of the Letters of Credit regardless of any
investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest
on any Loan, any Letter of Credit Liability or any Fee or any other amount
payable under this Agreement is outstanding and unpaid or the commitments
and obligations of the Lenders and the Issuing Bank hereunder have not been
terminated.
Section 2.26 AMENDMENT TO SECTION 8.04. Clause (d) of Section 8.04 of the
Credit Agreement is amended in its entirety to read as follows:
(d) The Administrative Agent shall maintain at one of its offices in
New York, New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, the principal amount of the Loans owing to
and the participations interest in Letters of Credit held by, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest
error and the Borrower, the Agents and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by each party hereto, at any reasonable time and
from time to time upon reasonable prior notice.
Section 2.27 AMENDMENT TO SECTION 8.05. Section 8.05 of the Credit
Agreement is amended in its entirety to read as follows:
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by either Agent, Chase Securities Inc., Wachovia Securities, Inc.
or the Issuing Bank in connection with entering into this Agreement or in
connection with any amendments, modifications or waivers of the provisions
hereof (but only if such amendments, modifications or waivers are requested
by the Borrower) (whether or not
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 19
the transactions hereby contemplated are consummated) or in connection with
the issuance, modification, extension or renewal of any Letter of Credit,
or incurred by either Agent, the Issuing Bank, or any Lender in connection
with the enforcement of their rights in connection with this Agreement or
in connection with the Loans made and Letters of Credit issued hereunder,
including the reasonable fees and disbursements of counsel for either Agent
and the Issuing Bank or, in the case of enforcement following an Event of
Default, the Lenders.
(b) THE BORROWER AGREES TO INDEMNIFY EACH LENDER AND ISSUING BANK
AGAINST ANY LOSS, CALCULATED IN ACCORDANCE WITH THE NEXT SENTENCE, OR
REASONABLE EXPENSE WHICH SUCH LENDER OR ISSUING BANK MAY SUSTAIN OR INCUR
AS A CONSEQUENCE OF (A) ANY FAILURE BY THE BORROWER TO BORROW OR TO CONVERT
OR CONTINUE ANY LOAN HEREUNDER (INCLUDING AS A RESULT OF THE BORROWER'S
FAILURE TO FULFILL ANY OF THE APPLICABLE CONDITIONS SET FORTH IN ARTICLE 4)
AFTER IRREVOCABLE NOTICE OF SUCH BORROWING, CONVERSION OR CONTINUATION HAS
BEEN GIVEN PURSUANT HERETO, (B) ANY PAYMENT, PREPAYMENT OR CONVERSION,
ASSIGNMENT OR FUNDING OF A EURODOLLAR LOAN REQUIRED BY ANY PROVISION OF
THIS AGREEMENT OR OTHERWISE MADE OR DEEMED MADE ON A DATE OTHER THAN THE
LAST DAY OF THE INTEREST PERIOD, IF ANY, APPLICABLE THERETO), (C) ANY
DEFAULT IN PAYMENT OR PREPAYMENT OF THE PRINCIPAL AMOUNT OF ANY LOAN OR ANY
REIMBURSEMENT OBLIGATION IN RESPECT OF ANY LC DISBURSEMENT OR ANY PART
THEREOF OR INTEREST ACCRUED THEREON, AS AND WHEN DUE AND PAYABLE (AT THE
DUE DATE THEREOF, WHETHER BY SCHEDULED MATURITY, ACCELERATION, IRREVOCABLE
NOTICE OF PREPAYMENT OR OTHERWISE) OR (D) THE OCCURRENCE OF ANY EVENT OF
DEFAULT, INCLUDING, IN EACH SUCH CASE, ANY LOSS OR REASONABLE EXPENSE
SUSTAINED OR INCURRED OR TO BE SUSTAINED OR INCURRED BY SUCH LENDER IN
LIQUIDATING OR EMPLOYING DEPOSITS FROM THIRD PARTIES, OR WITH RESPECT TO
COMMITMENTS MADE OR OBLIGATIONS UNDERTAKEN WITH THIRD PARTIES, TO EFFECT OR
MAINTAIN ANY LOAN HEREUNDER OR ANY PART THEREOF AS A EURODOLLAR LOAN. SUCH
LOSS SHALL INCLUDE AN AMOUNT EQUAL TO THE EXCESS, IF ANY, AS REASONABLY
DETERMINED BY SUCH LENDER, OF (I) ITS COST OF OBTAINING THE FUNDS FOR THE
LOAN BEING PAID, PREPAID, CONVERTED OR NOT BORROWED (ASSUMED TO BE THE LIBO
RATE) FOR THE PERIOD FROM THE DATE OF SUCH PAYMENT, PREPAYMENT OR FAILURE
TO BORROW TO THE LAST DAY OF THE INTEREST PERIOD FOR SUCH LOAN (OR, IN THE
CASE OF A FAILURE TO BORROW THE INTEREST PERIOD FOR SUCH LOAN WHICH WOULD
HAVE COMMENCED ON THE DATE OF SUCH FAILURE) OVER (II) THE AMOUNT OF
INTEREST (AS REASONABLY DETERMINED BY SUCH LENDER) THAT WOULD BE REALIZED
BY SUCH LENDER IN REEMPLOYING THE FUNDS SO PAID, PREPAID OR NOT BORROWED
FOR SUCH PERIOD OR INTEREST PERIOD, AS THE CASE MAY BE.
(c) THE BORROWER AGREES TO INDEMNIFY EACH AGENT, THE ISSUING BANK,
EACH LENDER, EACH OF THEIR AFFILIATES AND THE DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS OF THE FOREGOING (EACH SUCH PERSON BEING CALLED AN
"INDEMNITEE") AGAINST, AND TO
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 20
HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES,
LIABILITIES AND RELATED EXPENSES, INCLUDING REASONABLE COUNSEL FEES AND
EXPENSES, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF (I)
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (II)
THE USE OF THE PROCEEDS OF THE LOANS OR THE USE OF ANY LETTER OF CREDIT OR
(III) ANY CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF
THE FOREGOING, WHETHER OR NOT ANY INDEMNITEE IS A PARTY THERETO (INCLUDING,
WITHOUT LIMITATION, ANY LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED
EXPENSES ARISING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE
INDEMNITEE); PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE,
BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES
OR RELATED EXPENSES (I) ARE DETERMINED TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR (II) RESULT FROM ANY
LITIGATION BROUGHT BY SUCH INDEMNITEE AGAINST THE BORROWER OR BY THE
BORROWER AGAINST SUCH INDEMNITEE, IN WHICH THE BORROWER IS THE PREVAILING
PARTY.
(d) The provisions of this Section shall remain operative and in full
force and effect regardless of the expiration of the term of this
Agreement, the termination or satisfaction of all Letter of Credit
Liabilities, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any
term or provision of this Agreement or any investigation made by or on
behalf of any Agent or any Lender. All amounts due under this Section shall
be payable on written demand therefor.
Section 2.28 AMENDMENT TO SECTION 8.09. Section 8.09 of the Credit
Agreement is amended in its entirety to read as follows:
SECTION 8.09 ENTIRE AGREEMENT. THIS AGREEMENT (INCLUDING THE SCHEDULES
AND EXHIBITS HERETO), THE FEE LETTER AND THE OTHER DOCUMENTATION EXECUTED
PURSUANT HERETO (INCLUDING, BUT NOT LIMITED TO ANY LETTER OF CREDIT ISSUED
HEREUNDER) CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.03(A) OF
THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE ENTIRE CONTRACT
AMONG THE PARTIES RELATIVE TO THE SUBJECT MATTER HEREOF AND THEREOF. ANY
PREVIOUS AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF IS SUPERSEDED BY THIS AGREEMENT, THE FEE LETTER AND THE OTHER
DOCUMENTATION EXECUTED PURSUANT HERETO (INCLUDING, BUT NOT LIMITED TO ANY
LETTER OF CREDIT ISSUED HEREUNDER). THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES. NOTHING IN THIS AGREEMENT, EXPRESSED OR IMPLIED, IS
INTENDED TO CONFER UPON ANY PARTY OTHER THAN THE PARTIES HERETO ANY RIGHTS,
REMEDIES, OBLIGATIONS OR LIABILITIES UNDER OR BY REASON OF THIS AGREEMENT.
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 21
Section 2.29 AMENDMENT TO SECTION 8.14. Section 8.14 of the Credit
Agreement is amended in its entirety to read as follows:
SECTION 8.14 CONFIDENTIALITY. For the purposes of this Section 8.14,
"Confidential Information" means information delivered to an Agent, the
Issuing Bank or a Lender by or on behalf of the Borrower or any Subsidiary
in connection with the transactions contemplated by or otherwise pursuant
to this Agreement that is proprietary in nature and that was clearly marked
or labeled or otherwise adequately identified when received by an Agent,
the Issuing Bank or a Lender as being confidential information of the
Borrower or such Subsidiary, provided that such term does not include
information that (a) was publicly known or otherwise known to an Agent, the
Issuing Bank or a Lender prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by an Agent,
the Issuing Bank or a Lender or any Person acting on their behalf, (c)
otherwise becomes known to an Agent, the Issuing Bank or a Lender other
than through disclosure by the Borrower or any Subsidiary or (d)
constitutes financial statements delivered to you under Section 5.20 that
are otherwise publicly available. Each Agent, the Issuing Bank and each
Lender agree that they will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by them in
good faith to protect confidential information of third parties delivered
to them, provided that an Agent, the Issuing Bank or a Lender may deliver
or disclose Confidential Information to (i) its directors, officers,
employees, agents, attorneys and affiliates (to the extent such disclosure
reasonably relates to the administration of this Agreement), (ii) its
financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with
the terms of this Section 8.14, (iii) any Agent or other Lender, (iv) any
Transferee (if such Person has agreed in writing prior to its receipt of
such Confidential Information to be bound by the provisions of this Section
8.14), (v) any Person from which it offers to purchase any Security of the
Borrower or a Subsidiary (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of
this Section 8.14), (vi) any federal or state regulatory authority having
jurisdiction over it, (vii) any nationally recognized rating agency that
requires access to information about its investment portfolio, or (viii)
any other Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation or
order applicable to it, (x) in response to any subpoena or other legal
process, (y) in connection with any litigation to which it is a party or
(z) if an Event of Default has occurred and is continuing, to the extent an
Agent, the Issuing Bank or a Lender may reasonably determine such delivery
and disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under this Agreement.
Section 2.30 AMENDMENT TO EXHIBIT A. Exhibit A to the Credit Agreement is
amended in its entirety to read as Exhibit A attached hereto.
Section 2.31 AMENDMENT TO EXHIBIT B. Exhibit B to the Credit Agreement is
amended in its entirety to read as Exhibit B attached hereto.
ARTICLE 3
CONDITIONS
Section 3.1 CONDITIONS. The effectiveness of Article 2 of this Amendment is
subject to the satisfaction of the following conditions precedent on or before
January 23, 2001 (the "Closing Date"):
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 22
(a) CONTINUED EFFECT OF REPRESENTATIONS AND WARRANTIES. As of the Closing
Date, all representations and warranties contained in the Credit Agreement (as
amended hereby) shall be true, correct, and complete in all material respects
except for representations specifically relating to a prior date;
(b) ABSENCE OF DEFAULT. No Default shall have occurred and be continuing;
(c) CORPORATE PROCEEDINGS. All corporate proceedings taken in connection
with the transactions contemplated by this Amendment and all other agreements,
documents, and instruments executed and/or delivered pursuant hereto, and all
legal matters incident thereto, shall be satisfactory to the Administrative
Agent and its legal counsel;
(d) FEES AND EXPENSES. Payment or reimbursement to the Lenders, the Agents
and the Arranger of all outstanding expenses, fees and other costs incurred by,
or due to, the Lenders, the Agents and the Arranger for which such entity has
presented an invoice to the Borrower prior to the Closing Date; and
(e) ADDITIONAL INFORMATION. The Administrative Agent shall have received
such additional agreements, certificates, documents, instruments and information
as the Administrative Agent or its legal counsel may request to effect the
transactions contemplated hereby.
ARTICLE 4
MISCELLANEOUS
Section 4.1 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Credit Agreement are ratified
and confirmed and shall continue in full force and effect. The Borrower, the
Agents and the Lenders agree that the Credit Agreement as amended hereby shall
continue to be legal, valid, binding and enforceable in accordance with its
terms.
Section 4.2 FEES AND EXPENSES. In accordance with the terms of Section 8.05
of the Credit Agreement, the Borrower agrees to pay all costs and expenses
incurred by either Agent in connection with the preparation, negotiation and
execution of this Amendment, including, without limitation, the costs and fees
of legal counsel.
Section 4.3 APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 23
Section 4.4 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of the Agents, the Lenders and Borrower and their
respective successors and assigns.
Section 4.5 COUNTERPARTS. This Amendment may be executed in one or more
counterparts and on telecopy counterparts, each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 4.6 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
Section 4.7 ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSION OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Section 4.8 REQUIRED LENDERS. Pursuant to Section 8.08(b) of the Credit
Agreement, the Credit Agreement may be modified as provided in this Amendment
with the agreement of the Required Lenders which means Lenders having sixty-six
and two-thirds percent (66 2/3%) or more of the Total Commitments (such
percentage applicable to a Lender, herein such Lender's "REQUIRED LENDER
PERCENTAGE"). For purposes of determining the effectiveness of this Amendment,
each Lender's Required Lender Percentage is set forth on SCHEDULE 4.8 hereto.
Executed as of the date first written above.
LENNOX INTERNATIONAL INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Xxxxx X. Xxxxxx, Vice President and Treasurer
THE CHASE MANHATTAN BANK, as successor in
interest by merger to Chase Bank of Texas, National
Association, individually as Lender, Issuing Bank, and
as Administrative Agent
By: /s/ XXXXX XXXX
--------------
Xxxxx Xxxx
Vice President
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 24
WACHOVIA BANK, N.A., individually as a
Lender and as Syndication Agent
By: /s/ XXXX XXXXXXX
----------------
Name: Xxxx Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
individually as a Lender and as
documentation agent
By: /s/ F.C.H. XXXXX
----------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
THE NORTHERN TRUST COMPANY,
individually as a lender and as a co-agent
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Vice President
BANK ONE, TEXAS, N.A., as a Lender
By:
--------------------------
Name:
------------------------
Title:
-----------------------
BANK OF TEXAS, N.A., as a Lender
By: /s/ XXXXX XXXXXXXXX, XX.
------------------------
Name: Xxxxx Xxxxxxxxx, Xx.
Title: Sr. Vice President
THE BANK OF TOKYO-MITSUBISHI,
LTD., as a Lender
By: /s/ XXX XXXX /s/ XXXX X. XXXXXX
------------ ------------------
Name: X. Xxxxxxx Name: Xxxx X. Xxxxxx
Title: Vice President Title: VP & Manager
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 25
XXXXX FARGO BANK (TEXAS), N.A.,
as a Lender
By:
--------------------------
Name:
------------------------
Title:
-----------------------
ROYAL BANK OF CANADA,
as a Lender
By: /s/ X.X. XXXXXX
---------------
Name: X.X. Xxxxxx
Title: Senior Manager
ABN AMRO BANK N.A., as a Lender
By: /s/ XXXXXXXXX X. XXXXX
----------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Group Vice President
By: /s/ C. XXXXX XXXXXX
-------------------
Name: C. Xxxxx Xxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK, as a Lender
By: /s/ XXXXX XXXXXXXXXXX
---------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President
COMPASS BANK, as a Lender
By:
--------------------------
Name:
------------------------
Title:
-----------------------
THIRD AMENDMENT TO REVOLVING CREDIT FACILITY AGREEMENT, Page 26
EXHIBIT A
FORM OF BORROWING REQUEST
The Chase Manhattan Bank, as Administrative [Date]
Agent for the Lenders referred to below
0000 Xxxx Xxxxxx, 0xx xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopy: 000-000-0000
and
The Chase Manhattan Bank
Loan Syndications Services
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
Ladies and Gentlemen:
The undersigned, Lennox International Inc. (the "Borrower"), refers to the
Revolving Credit Facility Agreement dated as of July 29, 1999 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Agreement"), among the Borrower, the Lenders named therein, The Chase Manhattan
Bank, as Administrative Agent, and Wachovia Bank, N.A., as Syndication Agent and
The Bank of Nova Scotia, as documentation agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Agreement. The Borrower hereby gives you notice pursuant to Section 2.03
of the Agreement that it requests a Borrowing under the Agreement, and sets
forth below the terms on which such Borrowing is requested to be made:
(A) Date of Borrowing (which is a Business Day) ____________
(B) Principal amount of Borrowing(1) ____________
(C) Interest rate basis(2) ____________
(D) Interest Period and the last day thereof(3) ____________
------------------
(1) Not less than $5,000,000 (and in integral multiples of $1,000,000) or
greater than the Total Commitment then available.
(2) Eurodollar Loan or ABR Loan.
(3) Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.
EXHIBIT A - FORM OF BORROWING REQUEST, Page 1
The Borrower represents and warrants that the conditions to lending
specified in Section 4.01(b) and (c) of the Agreement have been satisfied and
that after giving effect to the Borrowing requested hereby, the total Revolving
Exposures of all Lenders shall not exceed the Total Commitment.
Very truly yours,
LENNOX INTERNATIONAL INC.
By:
---------------------------------------------
Xxxxx X. Xxxxxx, Vice President and Treasurer
EXHIBIT A - FORM OF BORROWING REQUEST, Page 2
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated: ______________, ____
Reference is made to the Revolving Credit Facility Agreement dated as of
July 29, 1999 (as amended, modified, extended or restated from time to time, the
"Agreement"), among Lennox International Inc. (the "Borrower"), the lenders that
are a party thereto (the "Lenders"), Wachovia Bank, N.A., as Syndication Agent,
The Bank of Nova Scotia, as documentation agent and The Chase Manhattan Bank, as
Administrative Agent for the Lenders. Terms defined in the Agreement are used
herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the [Effective Date of Assignment set forth
below], the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Agreement, including, without
limitation, the interests set forth below in the Commitment of the Assignor on
the [Effective Date of Assignment] and the Loans owing to the Assignor which are
outstanding on the [Effective Date of Assignment], and the participation
interest of the Assignor in outstanding Letters of Credit on the Effective Date
of Assignment together with unpaid interest accrued on the assigned Loans to the
[Effective Date of Assignment] and the amount, if any, set forth below of the
Fees accrued to the [Effective Date of Assignment] for the account of the
Assignor. Each of the Assignor and the Assignee hereby makes and agrees to be
bound by all the representations, warranties and agreements set forth in Section
8.04 of the Agreement, a copy of which has been received by each such party.
From and after the [Effective Date of Assignment], (i) the Assignee shall be a
party to and be bound by the provisions of the Agreement and, to the extent of
the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Agreement. After giving effect to
this Assignment and Acceptance, Assignor's Commitment shall be $_____________
and Assignee's Commitment shall be $_____________.
2. This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is organized under the laws of a
jurisdiction outside the United States, the forms specified in Section 2.16(g)
of the Agreement, duly completed and executed by such Assignee, (ii) if the
Assignee is not already a Lender under the Agreement, an Administrative
Questionnaire and (iii) a processing and recordation fee of $3,000.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Texas.
Date of Assignment:
-------------------------------------------------------------
Legal Name of Assignor:
---------------------------------------------------------
Legal Name of Assignee:
---------------------------------------------------------
Assignee's Address for Notices:
-------------------------------------------------
Effective Date of Assignment
(may not be fewer than 5 Business
EXHIBIT B - FORM OF ASSIGNMENT AND ACCEPTANCE
Days after the Date of Assignment
unless otherwise agreed by the Administrative Agent,
whose execution hereof shall be deemed to be such
consent, if necessary):
---------------------------------------------------------
================================================================================
Percentage Assigned of
Commitment (set forth,
to at least 8 decimals,
as a percentage of the
Facility Principal Amount Assigned Total Commitment)
--------------------------------------------------------------------------------
Commitment $_______________ __________%
Assigned:
--------------------------------------------------------------------------------
Loans: $_______________ __________%
--------------------------------------------------------------------------------
Participation Interest $_______________ __________%
in Letters of Credit
--------------------------------------------------------------------------------
Fees Assigned (if $_______________ __________%
any):
================================================================================
The terms set forth herein are hereby agreed to: Accepted:
, as
------------------------------------
Assignor, LENNOX INTERNATIONAL INC.
By: By:
---------------------------------- ---------------------------------
Name: Name:
----------------------------- ----------------------------
Title: Title:
---------------------------- ---------------------------
, as
------------------------------------- THE CHASE MANHATTAN BANK
Assignee as Administrative Agent
By: By:
---------------------------------- ---------------------------------
Name: Name:
----------------------------- ----------------------------
Title: Title:
----------------------------- ---------------------------
EXHIBIT B - FORM OF ASSIGNMENT AND ACCEPTANCE
Schedule 4.8
Third Amendment to Credit Agreement
REQUIRED LENDER PERCENTAGE
================================================================================
Lenders Agreeing to
Amendment (insert %
from prior column
if Lender signs
this Amendment then
Required Lender total percentages
Lender Percentage Held in this column)
================================================================================
The Chase Manhattan Bank 11.333% 11.333%
--------------------------------------------------------------------------------
Wachovia Bank, N.A 11.333% 11.333%
--------------------------------------------------------------------------------
The Bank of Nova Scotia 11.333% 11.333%
--------------------------------------------------------------------------------
The Northern Trust Company 11.333% 11.333%
--------------------------------------------------------------------------------
Bank One, Texas N.A 8.333% .0%
--------------------------------------------------------------------------------
Bank of Texas, N.A 8.333% 8.333%
--------------------------------------------------------------------------------
The Bank of Tokyo -
Mitsubishi, Ltd. 8.333% 8.333%
--------------------------------------------------------------------------------
Xxxxx Fargo Bank (Texas), N.A 8.333% .0%
--------------------------------------------------------------------------------
Royal Bank of Canada 6.333% 6.333%
--------------------------------------------------------------------------------
ABN Amro Bank N.V 5.000% 5.000%
--------------------------------------------------------------------------------
The Bank of New York 5.000% 5.000%
--------------------------------------------------------------------------------
Compass Bank 5.000% .0%
================================================================================
TOTAL 100% 78.33%
================================================================================
