EXHIBIT 4.6
AMENDED AND RESTATED CREDIT AGREEMENT
among
U.S. CONCRETE, INC.
as the Borrower,
THE GUARANTORS,
party hereto,
THE LENDERS,
party hereto,
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Administrative Agent,
BANKERS TRUST COMPANY
as syndication agent,
and
FIRST UNION NATIONAL BANK,
as documentation agent,
and
BANK ONE, TEXAS, NA
BRANCH BANKING & TRUST COMPANY
CREDIT LYONNAIS NEW YORK BRANCH
THE BANK OF NOVA SCOTIA,
as co-managing agents,
and
CHASE SECURITIES INC.,
as Sole Book Manager and Lead Arranger
$200,000,000 REVOLVING CREDIT LOAN
FEBRUARY 9, 2000
XXXXXXX & XXXXX L.L.P.
COUNSEL TO THE ADMINISTRATIVE AGENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................... 1
SECTION 1.01. Defined Terms............................................ 1
SECTION 1.02. Classification of Loans and Borrowings................... 18
SECTION 1.03. Terms Generally.......................................... 19
SECTION 1.04. Accounting Terms; GAAP................................... 19
ARTICLE II THE CREDITS.................................................. 19
SECTION 2.01. Commitments.............................................. 19
SECTION 2.02. Loans and Borrowings..................................... 20
SECTION 2.03. Requests for Revolving Borrowings........................ 20
SECTION 2.04. Swingline Loans.......................................... 21
SECTION 2.05. Letters of Credit........................................ 22
SECTION 2.06. Funding of Borrowings.................................... 26
SECTION 2.07. Interest Elections....................................... 27
SECTION 2.08. Termination and Reduction of Commitments................. 28
SECTION 2.09. Repayment of Loans; Evidence of Debt..................... 29
SECTION 2.10. Prepayment of Loans...................................... 30
SECTION 2.11. Fees..................................................... 30
SECTION 2.12. Interest................................................. 31
SECTION 2.13. Alternate Rate of Interest............................... 32
SECTION 2.14. Increased Costs.......................................... 33
SECTION 2.15. Break Funding Payments................................... 34
SECTION 2.16. Taxes.................................................... 34
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...................................... 35
SECTION 2.18. Mitigation Obligations; Replacement of Lenders........... 37
SECTION 2.19. Effect of Increased Costs................................ 37
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................. 38
SECTION 3.01. Organization; Powers..................................... 38
SECTION 3.02. Authorization; Enforceability............................ 38
SECTION 3.03. Governmental Approvals; No Conflicts..................... 38
SECTION 3.04. Financial Condition; No Material Adverse Change.......... 38
SECTION 3.05. Properties............................................... 39
SECTION 3.06. Litigation and Environmental Matters..................... 40
SECTION 3.07. Compliance with Laws and Agreements...................... 40
SECTION 3.08. Investment and Holding Company Status.................... 40
SECTION 3.09. Taxes.................................................... 40
SECTION 3.10. ERISA.................................................... 41
SECTION 3.11. Disclosure............................................... 41
SECTION 3.12. Year 2000................................................ 41
SECTION 3.13 Solvency................................................. 41
SECTION 3.14 Insurance................................................ 41
SECTION 3.15. Subsidiaries............................................. 42
ARTICLE IV CONDITIONS................................................... 42
SECTION 4.01. Effective Date........................................... 42
SECTION 4.02. Each Credit Event........................................ 45
ARTICLE V AFFIRMATIVE COVENANTS.......................................... 46
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SECTION 5.01. FINANCIAL STATEMENTS; AND OTHER INFORMATION.............. 46
SECTION 5.02. Notices of Material Events............................... 47
SECTION 5.03. Existence; Conduct of Business; Location................. 48
SECTION 5.04. Payment of Obligations................................... 48
SECTION 5.05. Maintenance of Properties; Insurance..................... 48
SECTION 5.06. Books and Records; Inspection Rights; Audits............. 49
SECTION 5.07. Compliance with Laws..................................... 49
SECTION 5.08. Use of Proceeds and Letters of Credit.................... 49
SECTION 5.09. Subsidiaries............................................. 49
SECTION 5.10. Collateral............................................... 50
SECTION 5.11. Employee Agreements...................................... 51
SECTION 5.12. Compliance With Leases................................... 51
ARTICLE VI NEGATIVE COVENANTS........................................... 51
SECTION 6.01. Indebtedness............................................. 51
SECTION 6.02. Liens.................................................... 52
SECTION 6.03. Fundamental Changes...................................... 53
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions............................................. 53
SECTION 6.05. Restricted Payments...................................... 54
SECTION 6.06. Transactions with Affiliates............................. 54
SECTION 6.07. Restrictive Agreements................................... 54
SECTION 6.08. Financial Ratios......................................... 55
SECTION 6.09. Net Worth................................................ 56
SECTION 6.10. Capital Expenditures..................................... 56
SECTION 6.11. Limitation of Acquisitions............................... 56
SECTION 6.12. Hedging Agreement........................................ 58
SECTION 6.13 Additional Borrowings Under Union Bank Indebtedness...... 58
SECTION 6.14. Prepayment of Other Indebtedness......................... 58
SECTION 6.15. Fiscal Year.............................................. 58
SECTION 6.16. Sale and Leaseback....................................... 58
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES.............................. 59
SECTION 7.01. Events of Default........................................ 59
SECTION 7.02. Remedies................................................. 61
ARTICLE VIII THE ADMINISTRATIVE AGENT.................................... 61
ARTICLE IX MISCELLANEOUS............................................... 63
SECTION 9.01. Notices.................................................. 63
SECTION 9.02. Waivers; Amendments...................................... 65
SECTION 9.03. Expenses; Indemnity; Damage Waiver....................... 66
SECTION 9.04. Successors and Assigns................................... 67
SECTION 9.05. Survival................................................. 69
SECTION 9.06. Counterparts; Integration; Effectiveness................. 69
SECTION 9.07. Severability............................................. 70
SECTION 9.08. Right of Setoff.......................................... 70
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process....................................... 70
SECTION 9.10. WAIVER OF JURY TRIAL..................................... 71
SECTION 9.11. Headings................................................. 71
SECTION 9.12. Confidentiality.......................................... 72
SECTION 9.13. Interest Rate Limitation................................. 72
SECTION 9.14. FINAL AGREEMENT OF THE PARTIES........................... 73
SECTION 9.15. Limited Liability........................................ 73
ARTICLE X GUARANTY....................................................... 73
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SECTION 10.01. Guaranty................................................ 73
SECTION 10.02. Continuing Guaranty..................................... 74
SECTION 10.03. Effect of Debtor Relief Laws............................ 75
SECTION 10.04. Partial Waiver of Subrogation........................... 75
SECTION 10.05. Subordination........................................... 76
SECTION 10.06. Waiver.................................................. 76
SECTION 10.07. Full Force and Effect................................... 77
SECTION 10.08. Termination of Guaranty................................. 77
iii
SCHEDULES:
---------
Schedule 2.01 Commitments
Schedule 3.05(b) Leases
Schedule 3.05(d) Location of Business/Chief Executive Office
Schedule 3.06 Disclosed Matters
Schedule 3.15 Subsidiaries
Schedule 6.01 Existing Indebtedness
Schedule 6.04 Existing Investments
Schedule 6.07 Existing Restrictions
EXHIBITS:
--------
Exhibit 1.01A Form of Assignment and Acceptance
Exhibit 1.01B Form of Note
Exhibit 1.01C Form of Terms of Subordination for Subordinated Debt
Exhibit 5.09 Form of Joinder Agreement
Exhibit 6.11 Form of Acquisition Information Worksheet
iv
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT dated as of February 9, 2000, among the
Borrower, the Guarantors, the Lenders, Bankers Trust Company, as syndication
agent, First Union National Bank, as documentation agent, Bank One, Texas, NA,
Branch Banking & Trust Company, Credit Lyonnais New York Branch and The Bank of
Nova Scotia, as co-managing agents and Chase Bank of Texas, N.A., as the
Administrative Agent.
The Borrower, certain Guarantors, certain Lenders and the
Administrative Agent entered into the Prior Credit Agreement dated May 28, 1999.
The Borrower now requests that the Lenders amend and restate the Prior Credit
Agreement and provide the Borrower with a credit facility pursuant to which the
Lenders will commit to make Revolving Credit Loans of up to an additional
$100,000,000, for a total of $200,000,000. The proceeds of the Revolving Credit
Loans shall be used to finance working capital needs of the Borrower and its
Subsidiaries and, for their general corporate purposes, including permitted
acquisitions.
In connection therewith, the Administrative Agent has agreed to serve
in such capacity for the Lenders and the Administrative Agent and the Lenders
are agreeable to the Borrower's request, subject to the terms of this Agreement.
All capitalized terms used in this introductory paragraph are defined in
Article I, Definitions.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein, the Borrower, the Administrative Agent and the
Lenders agree to amend and restate the Prior Credit Agreement in its entirety as
follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR" when used in reference to any Loan or Borrowing, refers to a
Loan or Borrowing bearing interest at a rate determined by reference to the
Alternate Base Rate.
"Acquisition" means any transaction, or any series of related
transactions, by which the Borrower or any of its Subsidiaries (a) acquires all
or substantially all of the assets of any Qualified Company (including the
Acquisition Targets), or division thereof, whether through purchase of assets,
merger or otherwise or (b) directly or indirectly acquires all of the securities
of or outstanding ownership interests or control of any Qualified Company
(including the Acquisition Targets).
"Acquisition Documents" means any and all purchase agreements, in each
case among the Borrower, and any Qualified Company that is the subject of an
Acquisition and/or the
stockholders of such Qualified Company and all other conveyance documents, bills
of sale and all other written agreements, documents, instruments and
certificates now or hereafter executed and delivered by any Person required to
be delivered to consummate any Acquisition and any and all amendments,
supplements, and other modifications thereof, in each case other than from the
Borrower or another Subsidiary.
"Acquisition Targets" means collectively, the following Qualified
Companies: the Allega Cement Companies and the Xxxxx Industries Companies, and
individually, any of the foregoing.
"Add-Back Adjustments" means the pro forma adjustments of the types
referred to in 17 CFR 210.11-02(b)(6).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the statutory Reserve Rate.
"Administrative Agent" means Chase Bank of Texas, National
Association, a national banking association, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means this agreement, as the same may be amended, amended
and restated, modified or supplemented from time to time.
"Allega Cement Companies" means Allega Cement, an Ohio corporation and
its subsidiaries.
"Alternate Base Rate" means for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus 0.5% per annum. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"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 Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
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"Applicable Margin" means, for any day during any period between two
successive Financial Statement Delivery Dates commencing on the first Financial
Statement Delivery Date in such period and ending on the day before the
following Financial Statement Delivery Date, with respect to any ABR Loan,
Eurodollar Revolving Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable margin per annum set forth in the
appropriate column below under the caption "ABR Spread", "Eurodollar Spread" or
"Commitment Fee Rate", as the case may be, for the ratio of Funded Debt to
EBITDA for the fiscal period for which such financial statements were delivered
as of the Financial Statement Delivery Date; provided, that upon the occurrence
of any Capital Markets Event, each of the applicable margins per annum set forth
in the appropriate column below under the caption "ABR Spread" and "Eurodollar
Spread", as the case may be, shall be equal to the amount set forth below minus
.25%, however, the applicable margin under the caption "Commitment Fee" shall
remain unchanged:
Ratio of Funded Debt to EBITDA ABR Eurodollar Commitment
------------------------------ ------- ---------- ----------
Spread Spread Fee Rate
------- ---------- ----------
*3.0 to 1.0 2.00% 3.00% .50%
*2.5 to 1.0 but **3.0 to 1.0 1.75% 2.75% .50%
*2.0 to 1.0 but **2.5 to 1.0 1.50% 2.50% .50%
*1.5 to 1.0 but **2.0 to 1.0 1.00% 2.00% .50%
*1.0 to 1.0 but **1.5 to 1.0 .75% 1.75% .375%
*.5 to 1.0 but **1.0 to 1.0 .50% 1.50% .375%
**.5 to 1.0 .25% 1.25% .250%
* Greater than or equal to
** Lesser than
As of the date hereof and until delivery of the Financial Statements
for the period ending December 31, 1999 required under Section 5.01, the
Applicable Margin for Eurodollar Loans shall be 2.50% per annum, for ABR Loans,
1.50% per annum, and the Commitment Fee Rate shall be .50% per annum.
For purposes of the foregoing, (a) if sufficient information does not
exist to calculate the Applicable Margin, or the Borrower has not delivered such
information to the Administrative Agent in a timely manner, Eurodollar Loans
shall not be available to the Borrower and the Applicable Margin for ABR Loans
shall be 2.00% per annum and for the commitment fee shall be .50% per annum; and
(b) if (i) the Ratio of Funded Debt to EBITDA shall change upon delivery of any
financial statement required under Section 5.01 or (ii) a Capital Markets Event
shall have occurred, such change in the Applicable Margin shall be effective as
of the date on which any such financial statement is delivered or on the date of
the Capital Markets Event shall have occurred, as the case may be, irrespective
of whether it is in the middle of an Interest Period or when notice of such
change shall have been furnished by the Borrower to the Administrative Agent and
the Lenders pursuant to Section 5.01(c) hereof or otherwise. Each change in the
Applicable Margin shall apply during the period commencing on the effective date
of such change and ending on the date immediately preceding the effective date
of the next such change.
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"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit 1.01A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of thirty (30) days prior to the
Maturity Date and the date of termination of the Commitments.
"Autoborrow Agreement" means the Autoborrow Service Agreement dated as
of July 30, 1999, between the Borrower and the Swingline Lender.
"BT" means Bankers Trust Company.
"Xxxxx Companies" means Xxxxx Industries, Inc. a Texas corporation,
its subsidiaries, Xxxxx Management, Inc., a Texas corporation, Xxxxx Investment
Corporation, Inc., a Delaware corporation and Xxxxx Concrete Enterprises, Ltd.,
a Texas limited partnership.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means U.S. Concrete, Inc., a Delaware corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, and (b) Swingline Loans.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in Houston, Texas are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" of any Person means the expenditures for any
purchase or other acquisition of any asset (other than for any Acquisition)
which are required to be classified and accounted for as a capital asset on a
consolidated balance sheet of such Person under GAAP and the amount of such
expenditures shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
4
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Markets Event" means the first issuance after the Effective
Date by the Borrower or any Subsidiary of (i) Subordinated Debt, (ii) preferred
stock on terms reasonably satisfactory to the Administrative Agent and the
Lenders or (iii) common equity of the Borrower, from which the gross proceeds to
the Borrower are in an aggregate principal amount of not less than $100,000,000.
"Certificate of Title" means any written instrument which may be
issued solely by and under the authority of any jurisdiction for any vehicle
which is required by such jurisdiction to be licensed or registered.
"Change in Control" means (a) the failure of Xxxxxxx Xxxxxx to be
Chairman of the Board of Directors of the Borrower; (b) occupation of a majority
of the seats (other than vacant seats) on the board of directors of the Borrower
by Persons who were neither (i) nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated; or (c) the acquisition of
direct or indirect Control of the Borrower by any Person or group other than the
shareholders of the Borrower beneficially as shown on page 60 of the
Registration Statement.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof having the effect of law by any
Governmental Authority after the date of this Agreement or (c) compliance by any
Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any lending
office of such Lender or by such Lender's or the Issuing Bank's holding company,
if any) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of
this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all of the material assets of the Borrower and its
Subsidiaries, including, all accounts, inventory, vehicles, equipment (including
rolling stock), furniture, fixtures, general intangibles, capital stock of
subsidiaries and all real property and leasehold estates (including improvements
thereon) held by such Person.
"Commitment" means (a) with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (i) reduced from time to time pursuant to Section 2.08
or and (ii) reduced or increased from time to time pursuant to assignments by or
to such Lender pursuant to Section 9.04 and (b) with respect to the Swingline
Lender, its commitment to make Swingline Loans. The initial amount of each
Lender's
5
Commitment is set forth on Schedule 2.01 under the caption "Initial Commitment",
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable. The aggregate amount of the Lenders'
total Commitments is $200,000,000.00 initially, and reduces to $175,000,000 upon
and after the occurrence of a Capital Markets Event.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Default Rate" has the meaning specified in Section 2.12(c).
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
EBITDA means, determined for the most recently ended period of four
full fiscal quarters of the Borrower, the sum of:
(a) consolidated operating income of the Borrower before any deduction
for federal, state and local income and franchise taxes, excluding any
extraordinary gains or losses, plus (to the extent deducted in determining
income for such period) the aggregate amount which was deducted for such period
in determining such income for interest expense, depreciation expense and
amortization expense, plus, for each such period that includes the fiscal
quarter of the Borrower ending March 31, 1999, the noncash, nonrecurring stock
compensation charge of the Borrower in that fiscal quarter as reflected in the
Registration Statement, plus, for each such period that includes dates prior to
May 29, 1999, the Add-Back Adjustments of the Founding Companies from the
beginning of the relevant fiscal period to the end of each such period;
provided, that for any such period that includes May 28, 1999 as to the Founding
Companies, EBITDA under this subparagraph (a) will be determined as if the
Borrower and the Founding Companies had been a consolidated entity from the
beginning of such applicable period; and
(b) for each Qualified Company whose Acquisition by the Borrower
occurs during the four quarters preceding the date as of which EBITDA is
calculated and with respect to the period beginning four quarters prior to the
calculation of EBITDA through the date of such Acquisition, the sum of the
consolidated operating income of such Qualified Company before any deduction for
federal, state and local income and franchise taxes, excluding any extraordinary
gains or losses, plus the aggregate amount which was deducted for such period in
determining such income for interest expense, depreciation expense and
amortization expense, plus Add-Back Adjustments of such Qualified Company;
provided, said pre-acquisition EBITDA of any Qualified Company shall be included
in EBITDA only to the extent any such amount (i) is not included in subparagraph
(a)
6
above, (ii) if the statement of operations of such Qualified Company for its
most recently ended fiscal year prior to its Acquisition (or, if that fiscal
year is not a calendar year, for the most recently ended calendar year, at the
option of the Borrower) has been audited by independent public accountants of
recognized standing, is derived from that audited statement and from such
Qualified Company's interim unaudited statement of operations prepared on the
same basis as that audited statement for the period since the year covered in
that audited statement and (iii) if not included in clause (ii) of this proviso,
is (A) approved for inclusion in such calculation by the Required Lenders, (B)
not in excess of $1,000,000 in the aggregate for all such acquisitions during
any rolling 12 month period or (C) is pre-acquisition EBITDA of Olive Branch.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all final laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters to the extent binding on the Borrower
and its Subsidiaries and their properties.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials in a manner that results in damage to the
environment, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate
7
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.16(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.16(a).
"Federal Funds Effective Rate" means (a) for the first day of an ABR
Borrowing or Swingline Loan, the rate per annum which is the average of the
rates on the offered side of the Federal funds market quoted by three interbank
Federal funds brokers, selected by the Administrative Agent, at approximately
the time the Borrower request such Borrowing or Swingline Loan, for dollar
deposits in immediately available funds, for a period and in an amount,
comparable to the principal amount of such ABR Borrowing or Swingline Loan, as
the case may be, and (b) for each other day of such ABR Borrowing or Swingline
Loan thereafter, or for any other amount hereunder which bears interest at the
Alternate Base Rate, the rate per annum which is the average of the rates on the
offered side of the Federal funds market quoted by three interbank Federal funds
brokers, selected by the Administrative Agent, at approximately 2:00 p.m. New
York City time on such day for dollar deposits in immediately available funds,
for a period and in an amount, comparable to the principal amount of such ABR
Borrowing, Swingline Loan or other amount, as the case may be; in the case of
both clauses (a) and (b), as determined by the Administrative Agent and rounded
upwards, if necessary, to the nearest 1/100 of 1%.
8
"Financial Officer" means the chief executive officer or the chief
financial officer of the Borrower.
"Financial Statement Delivery Date" means the earlier of the date on
which the financial statements of the Borrower are delivered or are required to
be delivered to the Administrative Agent and the Lenders pursuant to Section
5.01(a) or 5.01(b), as the case may be.
"Founding Companies" means Central Concrete Supply Co., Inc., a
California corporation; Xxxxxx'x Concrete, Inc., a California corporation; Bay
Cities Building Materials Co., Inc., a California corporation; Opportunity
Concrete Corporation, a District of Columbia corporation; Xxxx Concrete,
Incorporated, a New Jersey corporation; and X.X. Xxxxx/Associates d/b/a/ Santa
Xxxx Cast Products Co., a California corporation.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Funded Debt" means, as to any Person on a consolidated basis, all
Indebtedness for borrowed money evidenced by a note, agreement, debenture, bond
or similar writing and requiring periodic payments of interest and/or principal,
Capitalized Lease Obligations, the aggregate LC Exposure and Indebtedness
evidenced by any Guaranty of Indebtedness other than the Guaranty of the
Indebtedness hereunder.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guaranty" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
9
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantors" means the Persons on the signature pages hereto under the
caption "Guarantors" and any other Person that shall become a Guarantor
hereunder pursuant to Section 5.09.
"Guaranteed Obligations" has the meaning specified in Section 10.01
hereof.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any foreign currency exchange agreement,
commodity price protection agreement or other currency exchange rate or
commodity price hedging arrangement.
"Highest Lawful Rate" means as to any Lender, the maximum nonusurious
rate of interest that, under applicable law, may be contracted for, taken,
reserved, charged or received by such Lender on the Loans or under the Loan
Documents at any time or from time to time. If the maximum rate of interest
which, under applicable law, any of the Lenders is permitted to charge the
Borrower on its Loans shall change after the date hereof, to the extent
permitted by applicable law, the Highest Lawful Rate applicable to such Loans
shall be automatically increased or decreased, as the case may be, as of the
effective time of such change without notice to the Borrower or any other
Person.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person (excluding accounts
payable and accrued liabilities incurred in the ordinary course of business),
(e) all obligations of such Person in respect of the deferred purchase price of
property or services (excluding accounts payable and accrued liabilities
incurred in the ordinary course of business), (f) all Indebtedness of others
secured by any Lien on property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, (g) all Guaranties by such
Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of Letters of Credit, any other letters of credit,
letters of guaranty supporting Indebtedness and the net amount under any
Interest Rate Risk Indebtedness, any and (j) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as
10
a result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information Memorandum
dated January, 2000, relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date means (a) with respect to any ABR Loan
(including any Swingline Loan), the last day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter; "provided," that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii)
any Interest Period pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall
be the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Interest Rate Risk Agreement" means the program, and all documents
related thereto, for the hedging of interest rate risk provided for in any
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement or similar arrangement entered into by the Borrower with any Lender
for the purpose of reducing its exposure to interest rate fluctuations in
connection with this Agreement and not for speculative purposes.
"Interest Rate Risk Indebtedness" means all obligations and
Indebtedness of the Borrower to one or more of the Lenders with respect to the
program for the hedging of interest rate risk provided for in any Interest Rate
Risk Agreement.
"Issuing Bank" means Chase Bank of Texas, National Association, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.05(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit
11
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.
"Joinder Agreement" has the meaning specified in Section 5.09 hereof.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" 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 LC Exposure of any Lender at any time shall
be its Applicable Percentage of the total LC Exposure at such time.
"Leases" means those certain material lease agreements executed by any
Person, as lessor, and the Borrower or any Subsidiary, as lessee (or any lease
agreement, sublease or other similar arrangement entered into by the Borrower or
any Subsidiary after the Effective Date) under the terms of which the Borrower
or any Subsidiary occupies or uses real property and any improvements located
thereon in the ordinary course of its business.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the
term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service
(or any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement
12
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means this Agreement, the Notes, the Autoborrow
Agreement, the Security Documents, any Interest Rate Risk Agreement with any of
the Lenders, any applications or requests for Letters of Credit hereunder and
all documents related thereto.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Maintenance Capital Expenditure" of any Person means the actual
depreciation expense required to be classified and accounted for as depreciation
expense on a consolidated income statement of such Person under GAAP.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects, or condition, financial or otherwise,
of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower and its Subsidiaries taken as a whole, to perform any of its
obligations under this Agreement or (c) the material rights of or benefits
available to the Lenders under this Agreement to enforce collection of the
Obligations.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements
or Interest Rate Risk Agreements, of any one or more of the Borrower and its
Subsidiaries in an aggregate principal amount exceeding $1,000,000 outstanding.
For purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means May 28, 2002 unless accelerated pursuant to
Section 7.02 hereof.
"Maximum Guaranteed Amount" means the maximum amount which any
Subsidiary could pay or agree to pay under its Guaranty of the Obligations
contained in Article X hereof without having such agreement or payment set aside
as a fraudulent transfer or similar action under the Bankruptcy Code Title II
(United States Code) or applicable state or foreign law.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Note" means the promissory note executed by the Borrower payable to
each Lender in the amount of such Lender's Commitment, each substantially in the
form of Exhibit 1.01B hereto.
"Obligations" means all obligations of the Borrower and each of its
Subsidiaries hereunder (including the obligations of each Subsidiary under the
Guaranty in Article X hereof) and
13
under each of the other Loan Documents for the
payment of money the performance of any action or any other type of obligation.
"Olive Branch" means Olive Branch Ready Mix, Inc., a Delaware
corporation.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested or otherwise exist in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business or are being contested or otherwise exist in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Section 7.01; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any Indebtedness and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower and its Subsidiaries,
taken as a whole, including all of such as disclosures in the preliminary
title reports prepared by Chicago Title Insurance Company in connection
with the Security Documents executed and delivered pursuant to Section
4.01(c)(iv);
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
14
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Xxxxx'x; and
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000.
(d) accounts receivable and payroll advances in the ordinary course of
business;
(e) other advances and loans to officers and employees of the Borrower
or any Subsidiary, so long as the aggregate principal amount of such
advances and loans does not exceed $250,000 at any one time outstanding;
(f) Interest Rate Risk Indebtedness with respect to any Indebtedness
that is permitted by the terms of this Agreement to be outstanding; and
(g) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility, worker's compensation and performance and
other similar deposits in the ordinary course of business.
"Permitted Liens" means, collectively, Permitted Encumbrances and
Liens permitted under Section 6.02 of this Agreement.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means that certain Amended and Restated Pledge
Agreement of even date herewith executed by the Borrower and its Subsidiaries to
the Administrative Agent for the benefit of itself and the Lenders pledging the
shares of stock of each of the Subsidiaries as security for the Obligations.
15
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Prior Credit Agreement" means that certain Credit Agreement among the
Borrower, certain Guarantors, certain Lenders party thereto and the
Administrative Agent dated May 28, 1999, as amended by that certain First
Amendment to Credit Agreement dated June 30, 1999, that certain Second Amendment
to Credit Agreement effective July 31, 1999, that certain Third Amendment to
Credit Agreement effective August 31, 1999 and that certain Fourth Amendment to
Credit Agreement dated effective December 6, 1999, under the terms of which the
Lenders agreed to make revolving loans and acquire participations in letters of
credit and Swingline loans not to exceed in the aggregate, $100,000,000.
"Qualified Company" means any provider of ready-mixed concrete,
concrete products or related products and services to the construction industry
in major markets in the United States.
"Register" has the meaning set forth in Section 9.04.
"Registration Statement" means that certain Registration Statement of
the Borrowers on Form S-1 filed with the SEC on March 25, 1999, as amended.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least 66 2/3% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property, except distributions payable in capital
stock) with respect to any shares of any class of capital stock of the Borrower
or any Subsidiary (other than distributions to the Borrower or any Subsidiary),
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such shares of
capital stock of the Borrower, any option, warrant or other right to acquire any
such shares of capital stock of the Borrower or any debt of the Borrower
subordinated to the Obligations; provided Restrictive Payment shall not include
any scheduled interest payment made on Subordinated Debt, which Subordinated
Debt is otherwise permitted pursuant to the terms hereof.
16
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Santa Xxxx" means X.X. Xxxxx/Associates dba Santa Xxxx Cast Products
Co., a California corporation.
"Security Agreements" means (a) that certain Amended and Restated
Security Agreement of even date herewith executed by each of the Borrower and
its Subsidiaries to the Administrative Agent for the benefit of itself and the
Lenders and (b) that certain Collateral Assignment of Partnership Interests of
even date herewith executed by USC GP, Inc. and USC LP, Inc. to the
Administrative Agent for the benefit of itself and the Lenders.
"Security Documents" means the guaranty of each of the Guarantors
contained in Article X hereof, together with any guaranty delivered pursuant to
Section 5.09 hereof, the Pledge Agreement, the Security Agreements, each Joinder
Agreement and any and all those security agreements, pledge agreements,
mortgages, deeds of trust, leasehold mortgages, leasehold deeds of trust,
guaranty agreements, landlord's consents, estoppels, assignments, UCC financing
statements and all similar documents executed by any Person in connection
herewith including those listed in Section 4.01(c) hereof, together with any
agreements delivered pursuant to Section 5.09 or Section 5.10 hereof, granting
to the Administrative Agent for the benefit of the Lenders a first Lien and
security interest in substantially all of the Collateral of the Borrower and its
Subsidiaries as security for the Obligations, subject to Permitted Liens.
"Significant Subsidiary" means any Subsidiary, the net book value of
whose assets are equal to or greater than 5% of the consolidated net book value
of the assets of the Borrower and its consolidated subsidiaries or whose gross
revenues are equal to or greater than 5% of the consolidated revenues of the
Borrower and its consolidated Subsidiaries, in each case, measured by the most
recent financial statements delivered under Section 5.01(a) or (b) at the time
of determination.
"statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
17
"Subordinated Debt" means any Indebtedness of the Borrower or any
Subsidiary permitted hereunder that is subordinated to the Indebtedness incurred
under this Agreement on terms substantially in form and substance to those
contained in Exhibit 1.01C hereto, including such incurred in connection with a
Capital Markets Event, and to the extent complying with the terms contained in
Exhibit 1.01C hereto, any renewals or extensions thereof, amendments thereto,
substitutions therefor or restatements and refinancings thereof.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held.
"Subsidiary" means any direct or indirect subsidiary of the Borrower.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means Bank of America, N.A., in its capacity as
lender of Swingline Loans hereunder or such other Person designated as Swingline
Lender hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings
18
also may be classified and referred to by Class (e.g., a "Revolving
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (b) the sum of the total Revolving Credit Exposures
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
19
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall
be made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith; provided each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000, unless such
Borrowing represents a Borrowing of all of the unused Commitment. At the time
that each ABR Revolving Borrowing is made (other than Swingline Borrowings),
such Borrowing shall be in an aggregate amount that is an integral multiple of
$500,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the
total Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). At any time when the
Autoborrow Agreement is in effect, the provisions thereof shall govern the
advancing of a Swingline Borrowing. At any time when the Autoborrow Agreement
is not in effect, each Swingline Borrowing shall be in an amount not less than
$50,000 and integral multiples of $10,000 in excess thereof. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of seven (7) Eurodollar Revolving
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., Houston, Texas time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00
a.m., Houston, Texas time, on the date of the proposed Borrowing; provided that
any such notice of an ABR Revolving Borrowing to finance the reimbursement of an
LC Disbursement as contemplated by Section 2.05(e) may be given not later than
10:00 a.m., Houston, Texas time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
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(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period";
(v) the location and number of the account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.05; and
(vi) the aggregate Revolving Credit Exposure of the Lenders after
giving effect to such requested Borrowing.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Availability Period on same-day
notice, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $5,000,000 or (ii) the sum of the total Revolving Credit Exposure
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) At any time when the Autoborrow Agreement is in effect, the provisions
thereof shall govern the advancing of a Swingline Loan. At any time when the
Autoborrow Agreement is not in effect, the provisions of this Section 2.04(b)
shall govern the request for and the advance of a Swingline Loan. To request a
Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy of
such notification to the Administrative Agent) of such request not later than
12:00 noon, Houston, Texas time, on the day of a proposed Swingline Loan. Each
such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and amount of the requested Swingline Loan. The
Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to the general deposit account of the Borrower with the
Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the Issuing Bank) by 3:00 p.m., Houston, Texas time, on the
requested date of such Swingline Loan.
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(c) The Swingline Lender may by written notice given to the Administrative
Agent not later than 10:00 a.m., Houston, Texas time, on any Business Day
following an Event of Default including the failure of Borrower to pay any
principal, interest, fees or other amounts with respect to a Swingline Loan at
the time required by this Agreement, require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Lender, specifying in such
notice such Lender's Applicable Percentage of such Swingline Loan or Loans.
Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice
as provided above, to promptly pay to the Administrative Agent, for the account
of the Swingline Lender, such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Lender shall
comply with its obligation under this paragraph by wire transferring immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Promptly after receipt,
the Swingline Lender shall remit to the Administrative Agent any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant
to this paragraph and to the Swingline Lender, as their interests may appear.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Borrower may request a portion of the
Revolving Credit Facility not in excess of $5,000,000 be made available for the
issuance of Letters of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Availability Period. 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.
(b) 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,
22
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 (c) of this Section), the
amount of such Letter of Credit (which shall be denominated in U.S. dollars),
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 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 (and any
substantially contemporaneous amendment, reduction or release of any LC
Exposure) (i) the LC Exposure shall not exceed $5,000,000 and (ii) the sum of
the total Revolving Credit Exposures shall not exceed the total Commitments. The
Issuing Bank will confirm to the Administrative Agent the issuance of any Letter
of Credit and, if requested by the Administrative Agent or any Lender, will
provide a copy of any Letter of Credit issued, renewed or extended hereunder.
The Administrative Agent will promptly notify each Lender of the issuance,
amendment or extension of any Letter of Credit. The terms of payment of any
Letter of Credit shall be at sight.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five (5) Business Days prior to the Maturity Date.
(d) 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 (e) 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 reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) 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, Houston, Texas time, on the date that
such LC Disbursement is made, if the Borrower shall have received
23
notice of such LC Disbursement prior to 10:00 a.m., Houston, Texas 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, Houston, Texas time, on (i)
the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., Houston, Texas 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. If the Borrower fails to make such 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 payment then
due from the Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), 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 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 shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) 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 other
than any matter arising out of the gross negligence or willful misconduct of the
Issuing Bank, the Administrative Agent or any of their employees, officers,
agents, successors and assigns. Neither the Administrative Agent, the Lenders
nor the Issuing Bank, nor any of their Related Parties, 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
24
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, 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, acting in
good faith, 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. Any standby Letter of Credit issued hereunder shall be
subject to the International Standby Practices (ISP 98) as it may be amended,
restated or revised from time to time (as used in this Section, the "ISP"), or
the UCP (as defined below) and all documentary (commercial) Letters of Credit
issued hereunder shall be subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500, as it may be amended, restated or revised from time to time
(as used in this Section, the "UCP") and, all Letters of Credit to the extent
not inconsistent therewith, shall be subject to the Uniform Commercial Code of
the State of Texas. The Borrower agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in accordance with the standards of care specified
in the ISP or the UCP, as applicable, shall not result in any liability of the
Issuing Bank to the Borrower.
(g) 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 relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) 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, 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 Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(c) 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 (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) 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
25
Section 2.10(b). 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.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that the Borrower receives written notice
from the Administrative Agent or the Required Lenders demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section 7.01. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Obligations. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated, be applied to satisfy other Obligations. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence and continuance of an Event of Default, (i) such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived or (ii) any
amount of such cash collateral in excess of the unpaid Obligations shall be
returned to the Borrower upon the Borrower's written request.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 1:30 p.m., Houston, Texas time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in Houston,
Texas or other location as designated by the Borrower in the applicable
Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the
26
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate requested by
the Borrower to be applicable to such Borrowing. If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such Lender's
Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
27
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if a Default has occurred and is continuing, then, so long as a Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) Immediately upon the occurrence of a Capital Markets Event, the
Commitment of each Lender to make Revolving Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder shall, without any further
action, be automatically and permanently reduced on such date by twelve and one-
half percent (12 1/2%). Upon the occurrence of such event, the aggregate amount
of each Lender's Commitment is set forth on Schedule 2.01 under the caption
"Commitment Subsequent to a Capital Markets Event" or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable.
(c) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the LC Exposure plus the aggregate
principal amount of outstanding Loans would exceed the total Commitments.
(d) The Borrower shall notify the Administrative Agent of its exercise
of any election to terminate or reduce the Commitments under paragraph (c) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election
28
and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities or other circumstances, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. In the event
of any termination, the Administrative Agent and the Lenders agree to use their
best efforts to execute releases or assignments of Liens, and take other
reasonable actions as may be reasonably requested by the Borrower at the expense
of the Borrower. Any termination or reduction of the Commitments shall be
permanent. Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender, the then unpaid principal amount of each Revolving Loan
on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the Maturity Date.
(b) Concurrently upon the occurrence of a Capital Markets Event, the
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender, the aggregate principal amount, if any, required
to reduce such Lender's Revolving Credit Exposure to an amount not in excess of
such Lender's Commitment as such Lender's Commitment is reduced pursuant to
Section 2.08(b).
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(d) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(f) The Loans made by each Lender shall be evidenced by a Note payable
to said Lender.
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SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan at any time when the Autoborrow Agreement
is not in effect, the Swingline Lender) by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving
Borrowing, not later than 11:00 a.m., Houston, Texas time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR
Revolving Borrowing, not later than 11:00 a.m., Houston, Texas time, one
Business Day before the date of prepayment or (iii) in the case of prepayment of
a Swingline Loan at any time when the Autoborrow Agreement is not in effect, not
later than 12:00 noon, Houston, Texas time, on the date of prepayment. At any
time when the Autoborrow Agreement is in effect, the provisions thereof shall
govern the prepayment of a Swingline Loan. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be
in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the then Applicable Margin shown under the column for
"Commitment Fee Rate" in the definition of Applicable Margin on the daily
average Commitment of each Lender less the Revolving Credit Exposure for such
Lender during the period from and including the date of this Agreement to but
excluding the date on which such Commitment terminates, provided, for purposes
of this Section 2.11(a) only, but for no other purpose, Revolving Credit
Exposure shall not include any Lender's Swingline Exposure. Accrued and unpaid
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any unpaid commitment fees accruing after the date on which the
Commitments terminate shall be payable on demand. All facility fees 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).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to each Letter of Credit
issued hereunder equal to the greater of (A) the then Applicable Margin shown
under the column captioned "Eurodollar" spread in the definition of Applicable
Margin, multiplied by the face amount of each Letter of Credit or (B) $500, and
(ii) to the Issuing Bank a fronting fee, equal to .25% per annum multiplied
times the face amount of such Letter of Credit, as well as the Issuing Bank's
standard fees with respect
30
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees shall be
payable in arrears on the last day of March, June, September and December of
each year; 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 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 fees 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) The Borrower agrees to pay to Chase Securities Inc., for its own
account, and BT, for its own account, the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower, the Administrative Agent and BT.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of letter of credit related fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the
Lenders pro rata in accordance with their respective Commitments. Fees paid
shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) (i) The Loans comprising each ABR
Borrowing (excluding each Swingline Loan) shall bear interest at a rate per
annum equal to the lesser of: (y) the Alternate Base Rate plus the Applicable
Margin and (z) the Highest Lawful Rate.
(ii) Each Swingline Loan shall bear interest at a rate per annum
equal to the lesser of (y) the Alternate Base Rate plus the Applicable
Margin for ABR Loans less the applicable Commitment Fee Rate and (z)
the Highest Lawful Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at a rate per annum equal to the lesser of: (i) the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Margin and (ii)
the Highest Lawful Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest payable on demand, after as well as before
judgment, at a rate per annum equal to the lesser of: (i)(x) in the case of
overdue principal of any Loan, 2% per annum plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or (y) in
the case of any other amount, 2% per annum plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section (such increased rate per annum in
(x) or (y) being, the "Default Rate") and (ii) the Highest Lawful Rate.
(d) Accrued and unpaid interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of
Revolving Loans and Swingline Loans, upon termination of the Commitments;
provided that (i) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Revolving Loan or a repayment of a Swingline Loan
prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid
31
shall be payable on the date of such repayment or prepayment and (ii) in the
event of any conversion of any Eurodollar Revolving Loan prior to the end of the
current Interest Period therefor, accrued and unpaid interest on such Loan shall
be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be prima facie evidence of the correctness thereof.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent reasonably determines (which
determination shall be prima facie evidence of the correctness thereof) that
adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
they have reasonably determined in good faith that the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;
or
(c) any Lender advises the Administrative Agent of any Change in Law
or that the interpretation thereof by any Governmental Authority shall make it
unlawful for such Lender to make or maintain any Eurodollar Borrowing or
Eurodollar Loan or to give effect to its obligations as contemplated hereby.
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist (which notice the
Administrative Agent agrees to give promptly after a reasonable basis therefor
exists), (i) any Interest Election Request that requests the conversion of any
Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
Eurodollar Borrowing shall be ineffective; (ii) if any Borrowing Request
requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an
ABR Borrowing and (iii) with respect to clause (c) above, require that all
outstanding Eurodollar Loans made by such Lender be converted to ABR Loans, in
which event all such Eurodollar Loans of such Lender shall be automatically
converted to ABR Loans as of the effective date of such notice.
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SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as, in the reasonable judgment of the affected
Lender, will compensate such Lender or the Issuing Bank, as the case may be, for
such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements 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 or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, 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 Change in Law
(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), then from time to time the Borrower will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts
reasonably determined by such Lender as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be prima facie
evidence of the correctness thereof. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within fifteen (15) days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank, as
the
33
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount reasonably determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be prima facie evidence of the correctness thereof.
The Borrower shall pay such Lender the amount shown as due on any such
certificate within ten (10) days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives 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) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within fifteen (15) days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing
34
Bank, as the case may be, on or with respect to any payment by or on account of
any obligation of the Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or the Issuing Bank, prima facie
evidence of the correctness thereof.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 12:00 noon, Houston, Texas time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the recipient, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All other such payments shall be made to the
Administrative Agent at its offices at 000 Xxxx Xx., Xxxxxxx, Xxxxx 00000,
except payment to be made directly to the Issuing Bank or Swingline Lenders as
expressly provided herein or in any other Loan Document, and except that
payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
35
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Revolving Loans or participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and Swingline Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise,
after the occurrence and during the continuance of an Event of Default, against
the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(d) or (e), 2.06(b) or 2.17(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received
36
by the Administrative Agent for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a)
If any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall, following a request by Borrower, use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.14 or 2.16, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Issuing Bank and Swingline Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.19. Effect of Increased Costs. The provisions of Sections
2.05, 2.14, 2.15, 2.16, 2.17 and 2.18 shall be interpreted in the broadest
possible terms to include any increased costs, payments or reduced income for
any reason, including but specifically not by way of limitation, due to taxes,
capital adequacy provisions, reserve requirements, withholding obligations,
costs due to the payment of any sums on a date other than the regularly
scheduled date or for any other reason. The Borrower does hereby indemnify and
hold harmless the Administrative Agent and each Lender for all such costs and
does hereby agree to pay same or cover the Administrative Agent's or any
Lender's expenses or losses in regard to same. The Borrower shall pay such sums
to the Administrative Agent or to any Lender as are necessary to mitigate all
such items. This obligation is in addition to all other Obligations of the
Borrower hereunder.
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ARTICLE III
Representations and Warranties
The Borrower for itself and each of its Subsidiaries, and each
Subsidiary as to itself, represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized or formed, as the case may be, validly existing
and in good standing under the laws of the jurisdiction of its organization or
formation, has all requisite power and authority to carry on its business as now
conducted and is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required except, in each case, where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.02. Authorization; Enforceability. Each of the Borrower
and its Subsidiaries has the requisite power and authority to execute, deliver
and perform its obligations hereunder and under the Loan Documents to which it
is a party and all such action has been duly authorized by all necessary
corporate and, if required, stockholder or other organizational action. The
Loan Documents to which each such Person is a party have been duly executed and
delivered by such Person and constitute a legal, valid and binding obligation of
such Person, enforceable in accordance with the respective terms thereof,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation including, without limitations, ERISA or the
charter, by-laws or other organizational documents of the Borrower or any of its
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon the Borrower or any of its Subsidiaries or its assets, or give rise to a
right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries other than Permitted
Encumbrances and Liens granted pursuant to the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Borrower has heretofore furnished or, as applicable will furnish, to the
Lenders (i) the unaudited, consolidated balance sheet and statement of
operations, stockholder's equity and cash flows of the Borrower and its
Subsidiaries for fiscal quarters ending June 1999 and September 1999; (ii) the
unaudited, consolidated pro forma balance sheets, statement of operations,
stockholder's equity and
38
cash flows of the Borrower and its Subsidiaries and the Acquisition Targets as
of and for the periods ending December 31, 1998 and December 31, 1999, (iii)
upon acquisition of the Xxxxx Companies, audited financial statements (including
balance sheet and statement of operations) for the Xxxxx Companies (representing
eighty-five percent (85%) of the operations of the Xxxxx Companies) for the
twelve-month period ending December 31, 1998; and (iv) upon acquisition of the
Allega Companies, audited financial statements (including balance sheet and
statement of operations) for the Allega Companies (representing sixty-five
percent (65%) of the operations of the Allega Companies) for the twelve-month
period ending December 31, 1998. Effective upon the respective acquisition, such
audited financial statements to the knowledge of the Borrower present fairly, in
all material respects, the financial position and results of operations and cash
flows of the Allega Companies and the Xxxxx Companies, respectively, as of such
dates and for such periods stated in such financial statements in accordance
with GAAP. Such pro forma financial statements fairly present the financial
position and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such period in accordance
with GAAP, subject to the assumptions made by the Borrower in its reasonable
judgment. Such unaudited financial statements fairly present the financial
position and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and exclusion of detailed
footnotes.
(b) Since September 30, 1999, there has been no material adverse
change in the business, assets, operations or condition, financial or otherwise,
of the Borrower and its Subsidiaries, taken as a whole.
(c) Neither USC LP, Inc. nor Xxxxx Investment Corporation, Inc. owns
or will own any assets other than a 99% limited partnership interest in USC
Management Co., L.P. and Xxxxx Concrete Enterprises, Ltd., respectively.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, subject to no Liens except those
in favor of the Administrative Agent and other Permitted Liens, and except for
minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended
purposes.
(b) Schedule 3.05(b) describes all of the Leases in effect as of the
Effective Date (copies of each of which have been provided to the Administrative
Agent), each of which to the knowledge of the Borrower and the Subsidiary that
is a party thereto, (i) has been duly executed and delivered by and constitutes
the legal, valid and binding obligation of, the Borrower or the Subsidiary, as
the case may be, party thereto in accordance with its terms, except for
creditors' rights and equitable principles, (ii) is in full force and effect and
there is no default thereunder and (iii) has not been amended or modified, nor
any provisions thereof waived, except for matters affecting the enforceability,
effectiveness, breaches or amendments and modifications which in the aggregate
are not reasonably likely to result in a Material Adverse Effect.
(c) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, trade names, copyrights, patents and other intellectual
property material to its business,
39
and the use thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(d) The place of business or chief executive office of the Borrower
and each Subsidiary is at the location shown on Schedule 3.05(d) or at such
other locations as disclosed to the Administrative Agent in writing after the
date hereof. The federal employee identification number for the Borrower and
each of its Subsidiaries is set forth on Schedule 3.05(d).
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits, arbitrations or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower or
any Subsidiary, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Borrower's payment
Obligations hereunder.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any reasonable basis for any
Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
and all material contracts that significantly impact the operations of the
Borrower or its Subsidiaries in each case, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No default has occurred and is continuing hereunder
or under any such other document.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable,
40
has set aside on its books adequate reserves or (b) to the extent that the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. Each of the Borrower and its Subsidiaries
has disclosed to the Lenders all material agreements, instruments and corporate
or other restrictions to which it or any of its Subsidiaries is subject, and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other written reports, financial
statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time and the
Administrative Agent and the Lenders acknowledge that such projections are not
facts and that actual results will differ.
SECTION 3.12. Year 2000 Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, has been completed. The cost to the Borrower of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Borrower (including reprogramming errors and the failure of others'
systems or equipment) has not resulted and will not result in a Default or a
Material Adverse Effect.
SECTION 3.13 Solvency. After giving effect to the Loans and the
terms of this Agreement, the Borrower and each of its Subsidiaries, taken as a
whole, have assets that exceed their liabilities, are able to pay their debts as
they accrue and has reasonable capital to carry on their business.
SECTION 3.14 Insurance. Each of the Borrower and its Subsidiaries
maintains insurance of such types as is usually carried by corporations of
established reputation engaged in the same or similar businesses and similarly
situated with financially sound, responsible and reputable insurance companies
or associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdiction in which its
operations are carried on) and in such amounts (and with co-insurance and
deductibles) as such insurance is usually carried by corporations of established
reputation and engaged in the same or similar businesses and similarly situated,
or self insurance programs, but in any event, with respect to improvements to
real property and tangible personal property insuring the full replacement cost
of such improvement and such tangible personal property, subject to standard and
customary deductibles.
41
SECTION 3.15. Subsidiaries. Schedule 3.15 contains an accurate list
of all of the Subsidiaries of the Borrower as of the Effective Date setting
forth their respective jurisdictions of organization and the percentage of their
respective capital stock owned by the Borrower or any Subsidiary, and each of
said Subsidiaries, other than USC LP, Inc. has executed this Agreement as a
Guarantor. Such Subsidiaries, together with each of the Subsidiaries of the
Borrower who have complied with the requirements of Section 5.09 hereof, are all
of the Subsidiaries of the Borrower. All of the issued and outstanding shares
of capital stock of such Subsidiaries have been duly authorized and issued and
are fully paid and non-assessable.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which the Administrative Agent shall have
received the following (or such shall have been waived in accordance with
Section 9.02), each in form and substance reasonably satisfactory to the
Administrative Agent unless otherwise required:
(a) this Agreement executed by the Borrower;
(b) one Note for each Lender, each executed by the Borrower and
payable to the order of said Lender in the amount of its Commitment;
(c) the following Security Documents executed by the parties thereto
granting to the Administrative Agent and the Lenders a first and prior Lien on
the collateral described therein (subject only to Permitted Liens) as security
for the Obligations;
(i) the Pledge Agreement;
(ii) the Security Agreements;
(iii) a Guaranty from each of the Borrower's Subsidiaries
included in Article X hereof;
(iv) All mortgages, deeds of trust, assignments and related
documents in regard to the real property described in Section 4.01(c)(iv)
of the Prior Credit Agreement and; all applicable similar documents in
regard to real property of all Qualified Companies acquired by the Borrower
or any Subsidiary subsequent to the Prior Credit Agreement as follows:
(A) AFTM Corporation
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(1) leasehold interest (0000 Xxxxx Xxxx Xxxxx, Xxxxxx)
Xxxxxxxxxx Xxxxxx, XX;
(B) Carrier Excavation and Foundation Company
(1) fee interests (four parcels in Memphis) Shelby
County, TN,
(2) leasehold interest (0000 Xxxxxxxx Xxxx, Xxxxxxx)
Xxxxxx Xxxxxx, XX,
(3) leasehold interest (0000 Xxxxxxxxx Xxxx, Xxxxxxxxx)
Xxxxxx Xxxxxx, XX,
(4) leasehold interest (8031 Alexander, Olive Branch)
Desoto County, MS, and
(5) leasehold interest (0000 X. Xxxxxx, Xxxxxxx)
Xxxxxx Xxxxxx, XX;
(C) Fendt Transit Mix, Inc.
(1) leasehold interest (00000 Xxxxx Xxxx, Xxxx)
Xxxxxxx Xxxxxx, XX;
(D) Olive Branch Ready Mix, Inc.
(1) leasehold interest (0000 Xxxxxxx Xxxx, Xxxxxxx)
Xxxxxx Xxxxxx, XX,
(2) fee interest (1960 Old Hwy 51, Xxxxxx)
Desoto County, MS, and
(3) fee interest (4994 Hwy. 305 South, Olive Branch)
Desoto County, MS;
(E) Ready Mix Concrete Company of Knoxville
(1) fee interests (nine parcels) Xxxx County, TN;
(F) Western Concrete Products, Inc.
(1) leasehold interest (0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx)
Xxxxxxx Xxxxxx, XX;
(v) Landlord's Consent, Acknowledgment and Estoppel Certificates
executed on behalf of any landlord under any leasehold estate covered by
any deed of trust/mortgage delivered under clause (iv) above if requested
by the Administrative Agent; and
(vi) modification agreements to each of the mortgages and deeds
of trust recorded under the Prior Credit Agreement; and
43
(vii) UCC-1 Financing Statements as reasonably requested by the
Administrative Agent;
(d) a certificate of an officer and of the secretary or an assistant
secretary of the Borrower and each Subsidiary certifying, inter alia, (i) true
and complete copies of each of the articles or certificate of incorporation, as
amended and in effect, of such Person, the bylaws, as amended and in effect, of
such Person and the resolutions adopted by the Board of Directors of such Person
(A) authorizing the execution, delivery and performance by such Person of the
Loan Documents to which it is or will be a party and, as to the Borrower, the
Loans to be made hereunder, (B) approving the forms of the Loan Documents to
which it is or will be a party and which will be delivered at or prior to the
date of the initial Borrowing and (C) authorizing officers of such Person to
execute and deliver the Loan Documents to which it is or will be a party and any
related documents, including, any agreement contemplated by this Agreement and
(ii) the incumbency and specimen signatures of the officers of such Person
executing any documents on its behalf;
(e) a signed enforceability opinion addressed to the Administrative
Agent and the Lenders from Xxxxx Xxxxx L.L.P., counsel to the Borrower and its
Subsidiaries and a signed opinion addressed to the Administrative Agent and the
Lenders from the General Counsel of the Borrower, in each case, in form and
substance satisfactory to the Administrative Agent and the Lenders and their
counsel;
(f) receipt of (i) audited financial statements for each of Carrier
Excavation & Foundation Company and Pleasant View Associates, L.L.C., Ready Mix
Concrete Company of Knoxville, San Diego Precast Concrete, Inc., Western
Concrete Products, Inc., American Ready Mix, Inc., Fendt Transit Mix Inc. &
combined companies, and DYNA Corporation and (ii) a copy of the review of Olive
Branch as agreed by Xxxxxx Xxxxxxxx LLP and the Borrower;
(g) the payment to the Administrative Agent, Chase Securities Inc., BT
and the Lenders, as applicable, of all fees and expenses (other than the fees
and disbursements of Xxxxxxx & Xxxxx L.L.P. pursuant to Section 9.03, which will
be paid within 30 days of the Closing) which payments may be made with proceeds
of the initial Advance;
(h) certificates of appropriate public officials as to the existence
and good standing of the Borrower and each Subsidiary and a certificate of an
appropriate official as to the qualification to do business as a foreign
corporation of the Borrower and each Subsidiary in each jurisdiction in which
the ownership of its properties or the conduct of its business requires such
qualifications and where the failure to so qualify would have a Material Adverse
Effect, each of such certificates to be dated no earlier than January 20, 2000;
(i) certificates of insurance showing the Administrative Agent as loss
payee or additional insured, as appropriate, and a schedule of existing
insurance, in each case reasonably satisfactory to the Administrative Agent
evidencing the existence of all insurance required to be maintained pursuant to
Section 5.05 hereof;
44
(j) determination that no material part of the property covered by the
mortgages to be delivered pursuant to Section 4.01(c)(iii) lies in a Special
Flood Hazard Area or other hazard or flood plain area however designated, as
determined in accordance with the criteria established by the Federal Insurance
Administration or any other governmental authority having jurisdiction over the
subject property;
(k) lien searches on the Borrower and its Subsidiaries in the
jurisdictions requested by the Administrative Agent, together with waivers from
the holders of any Liens (other than Permitted Liens) as reasonably requested by
the Administrative Agent;
(l) evidence that all governmental and third-party approvals or
consents necessary, or in the discretion of the Administrative Agent, advisable
in connection with the Transactions and the continuing operations of the
Borrower and its Subsidiaries;
(m) such other consents, approvals, opinions or documents as the
Administrative Agent or the Lenders may reasonably request.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) on or prior to 2:00 p.m., Houston, Texas time, on
February 10, 2000 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The effectiveness of this Agreement
and the obligation of each Lender (including the Swingline Lender) to make a
Loan on the occasion of any Borrowing which increases the aggregate principal
amount of the Obligations, and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, is subject to the satisfaction of the following
conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, except to the extent such representations and warranties
relate to a prior date or after prior notice to the Administrative Agent are
untrue or incorrect as a result of transactions permitted by the Loan Documents.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
45
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees and other amounts payable
hereunder shall have been paid in full and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower for itself and each of its Subsidiaries and each Subsidiary, for
itself, covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements; and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related consolidated statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case (commencing with the financial statements for
the 2000 fiscal year) in comparative form the figures for the previous fiscal
year, all reported on by Xxxxxx Xxxxxxxx LLP or other independent public
accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the consolidated financial position and
consolidated results of operations of the Borrower and its consolidated
Subsidiaries in conformity with GAAP, and all to be prepared in accordance with
GAAP consistently applied, except to the extent the Borrower's independent
auditors concur with any such inconsistency;
(b) within 45 days after the end of each fiscal quarter (excluding any
quarter containing the Borrower's fiscal year end) of the Borrower, its
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case (commencing with
financial statements for periods ending after May 28, 2000) in comparative form
the figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects the
consolidated financial condition and consolidated results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, except for such changes with which the
Borrower's independent auditors concur, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.08, 6.09, 6.10 and 6.11 and (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;
46
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly upon receipt thereof, a copy of any management letter or
report submitted to the Borrower by its independent accountants in connection
with any regular or special audit;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally;
(g) as soon as available and in any event within sixty (60) days after
the end of each fiscal year of the Borrower, the annual financial projections
and budgets of the Borrower and its Subsidiaries;
(h) concurrently with the delivery of financial statements under (a)
and (b) above, a summary of (i) all of the fee and leasehold properties of the
Borrower and its Subsidiaries, including ownership interest, location and
whether such property is subject to a Lien in favor of the Administrative Agent,
and (ii) all vehicles and rolling stock of the Borrower and its Subsidiaries,
including description and serial number; and
(i) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that could reasonably be
expected to have a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
47
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business; Location. (a) The
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business, unless the failure to so maintain would
not reasonably be expected to have a Material Adverse Effect.
(b) The Borrower will promptly notify the Administrative Agent of any
change of the Borrower's or any Subsidiary's name, corporate structure, federal
employer identification number, address of its principal place of business or
chief executive office where such Person maintains its books and records.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. (a) The Borrower
will, and will cause each of its Subsidiaries to, keep and maintain all property
material to the conduct of its business in good working order and condition,
force majeure and ordinary wear and tear excepted.
(b) The Borrower will, and will cause each of its Subsidiaries to,
maintain (i) "all risk" insurance (at replacement cost) against loss or damage
to all property of the Borrower and its Subsidiaries, (ii) commercial general
liability insurance (including contractual liability, independent contractors,
products liability and completed operations coverage, (iii) directors and
officers liability insurance (iv) workers compensation/employers liability
insurance (in amounts not less than minimum applicable statutory requirements),
(v) automobile liability insurance, (vi) surety bond program, (vii) flood
insurance for any real property constituting Collateral determined to be in a
"special flood hazard area" as set forth by the Federal Emergency Management
Agency and (viii) such other insurance of such types as is usually carried by
corporations of established reputation engaged in the same or similar businesses
and similarly situated, and in each case with financially sound, responsible and
reputable insurance companies or associations (or, as to workers' compensation
or similar insurance, with an insurance fund or by self-insurance authorized by
the jurisdiction in which its operations are carried on) and in such amounts
(and with co-insurance and deductibles) as such insurance is usually carried by
corporations of established reputation and engaged in the same or similar
businesses and similarly situated, or self insurance programs reasonably
satisfactory to the Administrative Agent in respect of employee health insurance
programs only, but in any event, with respect to improvements to real property
and tangible personal
48
property insuring the full replacement cost of such improvements and the
tangible personal property, subject to standard and customary deductibles. All
insurance policies required pursuant to this Section 5.05 shall (i) name the
Administrative Agent on behalf of the Lenders as mortgagee (in the case of
property insurance) or additional insured (in the case of liability insurance),
as applicable, and provide that no cancellation or modification of the policies
will be made without thirty (30) days' prior written notice to the
Administrative Agent.
SECTION 5.06. Books and Records; Inspection Rights; Audits. (a) The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities which
shall, to the maximum extent possible, be kept in accordance with GAAP. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested so long as the Borrower
has an opportunity to have a representative participate or be present.
(b) The Borrower will, and will cause each of its Subsidiaries to,
within 90 days of the completion of an audit by the Administrative Agent of the
information technology systems of the Borrower and its Subsidiaries, complete
installation or implementation, as necessary, of the changes, revisions,
upgrades or equipment as requested by the Administrative Agent as a result of
such audit.
SECTION 5.07. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property including,
without limitation, ERISA and all Environmental Laws, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used only for (a) for Acquisition of the Acquisition Targets,
(b) refinancing Indebtedness incurred in connection with the acquisition of the
Founding Companies, (c) subject to Section 6.11, the Acquisition of any
Qualified Company and (d) for other general corporate purposes. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the regulations of the Board,
including Regulations U and X. Letters of Credit will be issued only to support
activities in connection with the uses permitted hereunder.
SECTION 5.09. Subsidiaries. (a) The Borrower will, and will cause
each of its Subsidiaries to, cause any Person becoming a Subsidiary, other than
USC LP, Inc. and Xxxxx Investment Corporation, Inc., to become a Guarantor of
the Obligations under this Agreement, the Notes and the other Loan Documents and
grant to the Administrative Agent for the benefit of the Lenders a first
priority Lien on all of such Subsidiary's material assets, subject to Permitted
Liens. Each such Subsidiary shall, within ten (10) days of becoming a
Subsidiary, execute and deliver to the Administrative Agent (i) together with
the parent of such Subsidiary, a joinder agreement
49
substantially in the form of Exhibit 5.09 hereto (a "Joinder Agreement"), (ii)
subject to Section 5.10, a deed of trust, mortgage, leasehold mortgage and/or
other security agreement granting Liens on the fee and leasehold interests of
such Subsidiary; provided that the Administrative Agent may waive, without the
consent of any Lender, the requirement that security interests be granted on any
leasehold interest if the underlying lease by its terms expressly prohibits such
assignment, or if the Administrative Agent makes a good faith determination that
a Lien on such leasehold interest is not required and (iii) UCC-1 financing
statements to be filed in connection with such Liens.
(b) The Borrower and each Subsidiary, other than USC LP, Inc. and
Xxxxx Investment Corporation, Inc., shall have pledged at all times 100% of such
Person's ownership interest in any Subsidiary to the Administrative Agent for
the benefit of the Lenders pursuant to the Pledge Agreement, a Joinder Agreement
or other pledge or security agreement in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 5.10. Collateral. (a) The Borrower will, and will cause each
of its Subsidiaries (other than USC LP, Inc. and Xxxxx Investment Corporation,
Inc.) to, for each vehicle with a gross vehicle weight in excess of 40,000
pounds, including all mixer trucks and aggregate delivery trucks, and which is
less than seven (7) years old (as determined by the date on the Certificate of
Title for such vehicle), (i) within thirty (30) days of the Effective Date,
provide evidence satisfactory to the Administrative Agent that all Certificates
of Title for each such vehicle owned by the Borrower or any such Subsidiary have
been submitted to the appropriate state department of motor vehicles or other
regulatory authority as appropriate for the jurisdiction of location of such
vehicle for the purpose of having the Administrative Agent for the benefit of
the Lenders recorded as lienholder on each of such Certificates of Title, (ii)
within thirty (30) days of the acquisition of any new vehicle, provide evidence
satisfactory to the Administrative Agent that the Certificate of Title for such
newly acquired vehicle shall have been submitted to the appropriate state
department of motor vehicles or other regulatory authority as appropriate for
the jurisdiction of location of such vehicle for the purpose of having the
Administrative Agent for the benefit of the Lenders recorded as lienholder on
each such Certificate of Title; provided, that in either case of (i) or (ii)
above and so long as there is no Default or Event of Default, any Certificate of
Title which evidences the Administrative Agent for the benefit of the Lenders as
lienholder shall be returned to the Borrower, and (iii) within thirty (30) days
of the submission of any Certificate of Title to the appropriate authority of
recordation of the Lien, provide to the Administrative Agent a copy of each
Certificate of Title reflecting the Administrative Agent as lienholder.
(b) Within thirty (30) days of the acquisition of any (i) fee interest
in any real property or (ii) material leasehold interest in any real property
used in the operation (as opposed to administration) of the business of the
Borrower or any Subsidiary (other than USC LP, Inc. and Xxxxx Investment
Corporation, Inc.), the Borrower will, and will cause each of such Subsidiaries
to, (w) execute in form and substance reasonably satisfactory to the
Administrative Agent, a deed of trust or mortgage, as applicable, in respect of
such fee interest and (x) use reasonably commercial efforts to execute in form
and substance reasonably satisfactory to the Administrative Agent, a leasehold
deed of trust or mortgage, as applicable, in each case granting a first priority
perfected Lien on such property as collateral for the Obligations, subject only
to Permitted Liens, (y) provide a preliminary title report in favor of the
Administrative Agent and the Lenders in form and substance reasonably
50
satisfactory to the Administrative Agent for any property on which a lien is
granted pursuant to clause (w) or (x), and (z) for any property acquired for
which the Borrower or any such Subsidiary obtains an owner's policy of title
insurance, provide a copy of such owner's policy. For purposes of this Section
5.10(b) and (c) below, a leasehold interest shall be deemed material if the
Borrower, in its good faith judgment, determines (1) that said leasehold
provides a significant portion of the product supplied by the Borrower and its
Subsidiaries in the geographic market in which said leasehold is located and (2)
that the Borrower could not readily replace such leasehold with a comparable
property on substantially similar terms and conditions.
(c) The Borrower will, and will cause each of its Subsidiaries (other
than USC LP, Inc. and Xxxxx Investment Corporation, Inc.) to, use commercially
reasonable efforts in negotiating any new material lease or the renewal or
extension of any existing lease covering real property to provide in such lease
that the interest of the lessee may be hypothecated without any further approval
of the landlord.
SECTION 5.11. Employee Agreements. Upon request of the
Administrative Agent, the Borrower and its Subsidiaries shall provide to the
Administrative Agent copies of all material agreements relating to the employees
of the Borrower and its Subsidiaries, including all collective bargaining
agreements, employment contracts, non-compete agreements, employee savings,
employee retirement and employee benefit plans. Upon request of the
Administrative Agent, the Borrower will provide a list of (a) each employment
agreement between the Borrower and each of its officers, (b) each employment
agreement between any Subsidiary and the key employees of such Subsidiary (or
its predecessor), (c) each union with which any Subsidiary of the Borrower has
entered into a collective bargaining agreement, and (iv) each employee pension
benefit plan (as defined in ERISA) sponsored by the Borrower or any Subsidiary.
SECTION 5.12. Compliance With Leases. The Borrower shall, and shall
cause each of its Subsidiaries to, perform and observe all covenants,
agreements, terms, conditions and limitations applicable to such Person
contained in any Lease and shall do all things necessary to keep unimpaired all
of its rights thereunder and to prevent any default thereunder or any forfeiture
or impairment thereof, except as to any nonperformance, nonobservance, default
or forfeiture which would not reasonably be expected to result in a Material
Adverse Effect.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees and other amounts payable hereunder have
been paid in full and all Letters of Credit have expired or terminated and all
LC Disbursements shall have been reimbursed, the Borrower covenants and agrees
with the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
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(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof;
(c) Indebtedness of the Borrower to any wholly-owned Subsidiary and of
any Subsidiary to the Borrower or any other Subsidiary;
(d) Indebtedness of the Borrower or any Subsidiary incurred to
finance, or assumed in connection with, any Acquisition or the acquisition of
other assets, including Capital Lease Obligations and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (i) such Indebtedness is incurred prior
to or within 90 days after such Acquisition or acquisition, (ii) such
Indebtedness was not incurred by such Person in contemplation of such
Acquisition and (iii) the aggregate principal amount of Indebtedness permitted
by clause (b) above and this clause (d) shall not exceed the greater of (1) 5%
of the consolidated tangible net worth of the Borrower or (2) $3,000,000 at any
time outstanding;
(e) Subordinated Debt incurred in respect of a Capital Markets Event
(including the Guaranty thereof by the Subsidiaries); and
(f) Interest Rate Risk Indebtedness.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) Any Lien on any property or asset of the Borrower or any
Subsidiary securing Indebtedness permitted in Section 6.01(b) or 6.01(d);
provided that (i) such Lien shall not apply to any other property or asset other
than accessions, improvements, upgrades and the proceeds thereof of the Borrower
or any Subsidiary and (ii) such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(c) Liens in favor of the Administrative Agent securing the
Obligations;
(d) Liens securing potential prepayment obligations of Xxxxxx'x
Concrete, Inc. to Union Bank of California, N.A. encumbering assets of Xxxxxx'x
Concrete, Inc.; provided no further Indebtedness is owing by the Borrower or any
Subsidiary to said bank; and
52
(e) Renewals and extensions of the above on similar terms and
conditions.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and
will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or any substantial part of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing, (i) any Subsidiary may merge into the Borrower
in a transaction in which the Borrower is the surviving Person, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) the Borrower or any Subsidiary may sell, transfer,
lease or otherwise dispose of its assets (A) to the Borrower or to another
Subsidiary (B) in the ordinary course of its business or (C) which are surplus,
obsolete or no longer useful in the operation of its business and do not
materially prejudice the Lenders in any way, and (iv) any Subsidiary may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and its Subsidiaries on the date of execution of
this Agreement and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower existing on the date hereof as set
forth on Schedule 6.04, including investments in its direct and indirect
Subsidiaries;
(c) equity investments by the Borrower or any Subsidiary in any
Subsidiary and loans or advances made by the Borrower to any wholly-owned
Subsidiary and made by any wholly-owned Subsidiary to the Borrower or any other
Subsidiary;
(d) subject to the limitations contained in Section 6.11, investments
in the stock, warrants, stock appreciation rights, other securities and/or other
assets of Qualified Companies; and
53
(e) guaranties of the Subordinated Debt incurred in connection with a
Capital Market Event that are subordinated in the same manner as the
Subordinated Debt.
SECTION 6.05. Restricted Payments. The Borrower will not, and will
not permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (a) Subsidiaries may
declare and pay dividends to the Borrower and other Subsidiaries and (b) the
Borrower may redeem capital stock in an aggregate amount not to exceed
$500,000.00.
SECTION 6.06. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its wholly owned Subsidiaries
not involving any other Affiliate provided; no transfer of assets may be made to
Xxxxx Investment Corporation, Inc., USC LP, Inc. or any other Subsidiary that
has not complied with the requirements of Sections 5.09 and 5.10 hereof, (c) any
Restricted Payment permitted by Section 6.05, (d) compensation and other
benefits paid to officers, directors and employees, and (e) transactions in
connection with the acquisition of any Qualified Company.
SECTION 6.07. Restrictive Agreements. Except for restrictions
contained in the indenture governing the Subordinated Debt incurred as a result
of the Capital Market Event, the Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary or to guarantee Indebtedness of the Borrower or
any other Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement or the Loan
Documents, (ii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iii) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof and (iv) and the foregoing shall
not apply to restrictions
(A) existing on the Effective Date and disclosed on Schedule 6.07
hereto;
(B) effecting a refinancing of Indebtedness incurred pursuant to an
agreement referred to in clause (A), so long as the encumbrances and
restrictions contained in any such refinancing agreement are no more
restrictive than the encumbrances and restrictions contained in such
agreements;
54
(C) constituting restrictions on the sale or other disposition of any
Property securing Indebtedness as a result of a Permitted Encumbrance on
such property; and
(D) constituting provisions contained in agreements or instruments
relating to Indebtedness which prohibit the transfer of all or
substantially all of the assets of the obligor thereunder unless the
transferee shall assume the obligations of the obligor under such agreement
or instrument.
SECTION 6.08. Financial Ratios. The following financial ratios will
be calculated as of each Financial Statement Delivery Date for the immediately
preceding period of four quarters to which the financial statements relate after
giving pro forma effect to the Acquisitions.
(a) Fixed Charge Coverage Ratio. The Borrower will not at any time
permit the ratio of (i) EBITDA calculated on a rolling four (4) quarter basis
(excluding any EBITDA computed pursuant to clause (b) of the definition of
EBITDA) minus cash federal, state and local income and franchise taxes actually
paid during such period (or, for any period prior to the Acquisition of the
Founding Companies, 40.8% of pro forma consolidated pre-tax net income of the
Borrower and its Subsidiaries for such included period), to (ii) cash interest
expense, actually paid during such period (including the interest expense
portion of any payments on Capitalized Lease Obligations but net of cash
interest income actually received during such period) plus Maintenance Capital
Expenditures for said period, to be less than 2.00 to 1.0 at any time during the
term hereof. For purposes of determining interest expense during the first
fiscal year of this Agreement, actual cash interest expense for any period from
the May 28, 1999 through the end of the period being calculated shall be
annualized and interest expense prior to the May 28, 1999 shall be disregarded.
(b) Asset Coverage Ratio. The Borrower will not at any time permit
the ratio of: (a) (i) accounts receivable plus (ii) inventory plus (iii) the net
book value of all property, plant and equipment in each case as reflected on the
financial statements delivered pursuant to Section 5.01, to (b) Funded Debt
minus Subordinated Debt, to be less than (i) 1.0 to 1.0 for the period from the
Effective Date through September 29, 2000 and (ii) 1.25 to 1.0 for the period
from September 30, 2000 and thereafter; provided, that upon the occurrence of a
Capital Markets Event, such ratio will not be less than 1.5 to 1.0 for the
period from the date of occurrence of the Capital Markets Event and thereafter.
For the purposes of calculating this Asset Coverage Ratio, the Borrower may use
(i) the book value of such assets as recorded on the financials delivered under
Section 5.01 hereof or (ii) the fair market value of such assets, as such fair
market value is determined by a third party approved by the Administrative Agent
in its sole discretion; provided, that in the event any fair market valuation
has been determined which for any asset is less that its book value, such fair
market valuation must be used in the calculation of this Asset Coverage Ratio.
(c) Senior Debt Leverage Ratio. The Borrower will not at any time
permit the ratio of (i) Funded Debt minus Subordinated Debt to (ii) EBITDA
calculated on a rolling four (4) quarter basis, to be greater than (i) 2.75 to
1.0 for the period from the Effective Date through June 29, 2000, (ii) 2.50 to
1.0 for the period from June 30, 2000 through September 29, 2000 and (iii) 2.25
to 1.0 for the period from September 30, 2000 and thereafter; provided, that
upon the occurrence of
55
a Capital Markets Event, such ratio will not be greater than 2.25 to 1.0 for the
period from the date of occurrence of the Capital Markets Event and thereafter.
(d) Total Debt Leverage Ratio. The Borrower will not at any time
permit the ratio of (i) Funded Debt (including all Subordinated Debt) to (ii)
EBITDA calculated on a rolling four (4) quarters basis, to be greater than 3.25
to 1.0.
SECTION 6.09. Net Worth. The Borrower will not permit at any time
during the term hereof consolidated net worth to be less than $69,113,000, plus
commencing May 28, 1999, fifty percent (50%) of after tax net income (if
positive) of the Borrower and its Subsidiaries for each theretofore completed
fiscal year during the term hereof, plus one hundred percent (100%) of the net
cash proceeds theretofore received subsequent to May 28, 1999 from the issuance
of any capital stock by the Borrower or any Subsidiary (other than from the
Borrower or another Subsidiary) subsequent to the date hereof, plus, without
duplication, one hundred percent (100%) of any amount recorded on the balance
sheet of the Borrower from the issuance of any equity.
SECTION 6.10. Capital Expenditures The Borrower will not, and will
not permit its Subsidiaries to, make any Capital Expenditure (including any
Capitalized Lease Obligations) during any fiscal year if, after giving effect
thereto, the aggregate of all such expenditures would exceed five percent (5%)
of actual total revenues of the Borrower and its Subsidiaries for the
immediately preceding four quarters.
SECTION 6.11. Limitation on Acquisitions The Borrower will not, and
will not permit any Subsidiary to, acquire any stock or assets of any Qualified
Company (other than (i) upon the receipt of an audited balance sheet and
statement of operations of the Allega Companies for the fiscal year ending
December 31, 1998, the Allega Companies and, (ii) upon receipt of a Joinder
Agreement and the documents and other items required by the Joinder Agreement
from the applicable Xxxxx Companies, the Xxxxx Companies) without the prior
written consent of the Required Lenders if (a) the cash consideration (defined
as total net cash to be paid plus Indebtedness to be assumed) for any such
proposed acquisition exceeds 7.50% of the consolidated net worth of the Borrower
and its Subsidiaries (pre-acquisition) as reflected in the most recent
consolidated balance sheet delivered pursuant to Section 5.01 hereof or (b) the
total consideration (defined as total net cash to be paid plus Indebtedness to
be assumed plus the value of any stock of the Borrower or any Subsidiary given
as consideration, (as reflected on the Borrower's consolidated balance sheet,)
plus related Acquisition costs) exceeds 15.0% of the consolidated net worth of
the Borrower and its Subsidiaries (pre-acquisition) as reflected on the most
recent consolidated balance sheet delivered pursuant to Section 5.01 hereof; and
provided the Borrower is in compliance with all of the following:
(i) no Default or Event of Default is in existence at the time of
the consummation of such proposed Acquisition or would exist after giving
effect thereto, all representations and warrants contained herein and in
the other Loan Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties were
made on and as of the date of such proposed Acquisition (both before and
after giving effect thereto) except to the extent limited to a specific
prior date or incorrect as
56
a result of transactions permitted under the Loan Documents, and no other
agreement, contract or instrument to which the Borrower is a party
restricts such proposed Acquisition;
(ii) the Borrower shall have given the Administrative Agent and
the Lenders at least ten (10) Business Days prior written notice of any
such proposed Acquisition (each of such notices, a "Permitted Acquisition
Notice"), which notice must be timely provided and must be accompanied by
all of the information required in this Section 6.11 and shall (A) contain
the estimated date such proposed Acquisition is scheduled to be
consummated, (B) attach a true and correct copy of the draft purchase
agreement (if available), letter of intent, description of material terms
or similar agreements executed by the parties thereto in connection with
such proposed Acquisition, (C) contain the estimated aggregate purchase
price of such proposed Acquisition and the estimated amount of related
costs and expenses and the intended method of financing thereof, and (D)
contain the estimated amount of Loans required to effect such proposed
Acquisition;
(iii) concurrently with delivery of the Permitted Acquisition
Notice, the Borrower shall have provided the Administrative Agent and the
Lenders with all information related to the proposed Acquisition as is
reasonably required in the form of Acquisition Information Worksheet
attached hereto as Exhibit 6.11, and, promptly upon request, such
additional information as the Administrative Agent shall reasonably
request, including, delivery of the expert reports (if any) prepared by
accounting, environmental, and/or other experts which the Borrower has
obtained and the Administrative Agent shall reasonably request;
(iv) (A) as soon as available but not less than the earlier of
three (3) days after the execution thereof, a copy of the executed
principal Acquisition Documents with respect to such proposed Acquisition
and (B) at the time of delivery of the Acquisition Documents, certification
from the Borrower as to the purchase price for the Acquisition (or a
formula therefor) and the estimated amount of all related costs, fees and
expenses and that, except as described, there are no other amounts which
will be payable in connection with such proposed Acquisition;
(v) concurrently with the delivery of the Permitted Acquisition
Notice, the Borrower shall have provided to the Administrative Agent and
the Lenders recalculations of the calculations set forth in the certificate
most recently delivered pursuant to Section 5.01(c) are made by the
Borrower evidencing its compliance with the covenants contained in Section
6.08 (excluding Section 6.08(c)) through 6.10, inclusive, and such
recalculations shall show that during the period of four fiscal quarters
covered by that certificate, on a pro forma basis, the Borrower would have
been in compliance therewith.
(vi) at any time prior to the occurrence of a Capital Markets
Event, concurrently with the delivery of the Permitted Acquisition Notice,
the Borrower shall have provided to the Administrative Agent and the
Lenders a calculation by the Borrower of the ratio of pro forma Funded Debt
minus Subordinated Debt (after giving effect to the proposed Acquisition)
to pro forma EBITDA (after giving effect to the proposed Acquisition)
showing
57
that such ratio will not at any time be greater than (A) 2.50 to
1.0 for the period from the Effective Date through June 29, 2000, (B) 2.25
to 1.0 for the period from June 30, 2000 through September 29, 2000 and (C)
2.00 to 1.0 for the period from September 30, 2000 and thereafter.
(vii) the Borrower shall have delivered updated schedules to any
Acquisition Agreement related to such proposed Acquisition to the
Administrative Agent; and
(viii) prior to the consummation of the proposed Acquisition,
the Borrower shall furnish the Administrative Agent and the Lenders an
officer's certificate executed by a Financial Officer of the Borrower,
certifying as to compliance with the requirements of the applicable
preceding clauses (i) through (vi), containing the calculations required in
this Section 6.11. The consummation of each Acquisition shall be deemed to
be a representation and warranty by the Borrower that all conditions
thereto have been satisfied and that same is permitted in accordance with
the terms of this Agreement, which representation and warranty shall be
deemed to be a representation and warranty for all purposes hereunder; and
further provided, that for any Acquisition, regardless of the consideration
paid, the Borrower must be in compliance with clauses (i) and (iii) above.
SECTION 6.12. Hedging Agreement. The Borrower will not, and will not
permit any Subsidiary to, enter into any Hedging Agreement.
SECTION 6.13 Additional Borrowings Under Union Bank Indebtedness. The
Company will not, and will not permit any Subsidiary, including, without
limitation, Xxxxxx'x Concrete, Inc., to borrow, accept any advances under, or in
any manner increase its liability in respect of, the documents evidencing
certain Indebtedness and obligations of said Subsidiary to Union Bank of
California, N.A.
SECTION 6.14. Prepayment of Other Indebtedness. The Borrower will
not, and will not permit any Subsidiary to, make any voluntary prepayments of
principal or interest on, defease or establish any escrow or defeasance accounts
or trusts in respect of any Subordinated Debt. The Borrower will not, and will
not permit any Subsidiary to, amend or obtain or grant a waiver of any repayment
schedule (other than a deferral), subordination provision or related definition
contained in the note agreement or indenture entered into in connection with the
Subordinated Debt without the prior written consent of the Required Lenders.
SECTION 6.15. Fiscal Year. The Borrower will not change its fiscal
year from December 31st.
SECTION 6.16. Sale and Leaseback. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly enter into any agreement or
arrangement providing for the sale or transfer by it of any property (now owned
or hereafter acquired) to a Person and the subsequent lease or rental of such
property or similar property from such Person.
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ARTICLE VII
Events of Default and Remedies
SECTION 7.01. Events of Default.
The following events ("Events of Default") shall constitute Events of
Default hereunder:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Section 7.01) payable under this Agreement, when and as the same shall become
due and payable;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document or any amendment or modification hereof or thereof or waiver
hereunder or thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Section 7.01), and such failure shall continue
unremedied for a period of fifteen (15) days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Subordinated Debt or any Material Indebtedness, when and as the same shall
become due and payable;
(g) any event or condition occurs that results in any Subordinated
Debt or any Material Indebtedness becoming due prior to its scheduled maturity
or that enables or permits the holder or holders of any Subordinated Debt or any
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Subordinated Debt or any Material Indebtedness to become due, or
59
to require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Significant Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Significant Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the Borrower or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Section 7.01, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Significant Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Significant Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 (not covered by insurance subject to customary
deductible) shall be rendered against the Borrower, any Significant Subsidiary
or any combination thereof and the same shall remain undischarged for a period
of 30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding (i) $1,000,000 in any year
or (ii) $1,000,000 for all periods;
(m) a Change in Control shall occur; or
(n) any material Loan Document shall be determined by the
Administrative Agent, in its good faith judgment to be unenforceable in any
material respect or Borrower or any Subsidiary shall claim such to be the case
other than in accordance with its terms or the terms of the other Loan
Documents.
60
SECTION 7.02. Remedies. On the occurrence of any event described in
Section 7.01 (other than an event with respect to the Borrower described in
clause (h) or (i) thereof), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same time or different times: (i) terminate the Commitments
(including the Commitment of the Swingline Lender with respect to its obligation
to advance Swingline Loans), and thereupon the Commitments shall terminate
immediately; provided that in the case of the Commitment of the Swingline Lender
with respect to its obligation to advance Swingline Loans, the Swingline Lender
may, by notice to the Borrower (with a copy to the Administrative Agent) and
regardless of whether the Required Lenders elect to terminate the Commitments
hereunder, terminate such Commitment, and thereupon such Commitment shall
terminate immediately, (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued and unpaid interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall become due and payable immediately, without
notice, presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of Section 7.01 of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower, (iii) set off any amounts of the
Borrower or any Subsidiary held by it, (d) exercise any other rights or remedies
described in the other Loan Documents, including, without limitation, each of
the Security Documents, and (iv) exercise such other rights as are available to
lenders and secured parties at law or in equity.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
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 hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default
61
has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries or Affiliates that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, 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, in
consultation with the Borrower, to appoint a successor. If no successor shall
have
62
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in Houston, Texas, or an Affiliate of any such
bank. Upon the acceptance of its appointment as Administrative Agent hereunder
by a successor, 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. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender 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 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,
any related agreement or any document furnished hereunder or thereunder.
None of the documentation agent, the syndication agent or any of the
co-managing agents in their respective capacities as such shall have any duties
or responsibilities to any other Person under this Agreement or any other Loan
Document.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
63
(a) if to the Borrower or to any Guarantor,
U.S. Concrete
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to the Administrative Agent,
Chase Bank of Texas, National Association
000 Xxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Dolphin
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with copies to
The Chase Manhattan Bank
Agency Services
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
(c) if to the Issuing Bank,
Chase Bank of Texas, National Association
000 Xxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Dolphin
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
(d) if to the Swingline Lender,
Bank of America, N.A.,
000 Xxxxxxxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxx 00000,
Attention: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
64
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on (a) if delivered in
person, when delivered, (b) if delivered by telecopy, on the date of confirmed
transmission, (c) if delivered by overnight courier, one (1) Business Day after
deliver to the courier properly addressed or (d) if by mail, four (4) days after
deposit in the United States mails (by certified mail, return receipt
requested), with proper postage prepaid.
SECTION 9.02. Waivers; Amendments. (a) To the extent permitted by
law, no failure or delay by the Administrative Agent, the Issuing Bank or any
Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. To the extent permitted by law, the rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
To the extent permitted by law, no waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees or
other amounts payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees or
other amounts payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.17(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) release any
Collateral securing the Obligations, without the written consent of each Lender,
provided that the Administrative Agent may release any collateral sold or
transferred as permitted under this Agreement by the Borrower or any Subsidiary
in the ordinary course of business or as otherwise permitted under this
Agreement, (vi) release the Borrower or any Guarantor or any other Person liable
for the repayment of the Obligations, without the written consent of each Lender
or (vii) change any of the provisions of this Section or the definition of
"Required Lenders" or any other
65
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Issuing Bank or the Swingline
Lender hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation,
execution and delivery of this Agreement or any amendments, modifications or
waivers of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank and the Swingline Lender in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Issuing Bank or any Lender,
including the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement, the
Security Documents and the other Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during
any workout or restructuring of such Loans or Letters of Credit.
(b) The Borrower shall and hereby does indemnify Chase Securities,
Inc., the Administrative Agent, the Issuing Bank, the Swingline Lender and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related reasonable
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, the Security Documents and the other Loan Documents or any agreement
or instrument contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; PROVIDED THAT IT IS THE EXPRESS INTENTION OF
THE PARTIES HERETO THAT SUCH INDEMNITY SHALL BE APPLICABLE REGARDLESS OF WHETHER
ANY LOSS OR LIABILITY WAS CAUSED BY ANY INDEMNITEE'S OWN NEGLIGENCE OR ARISES
FROM ANY THEORY OF STRICT LIABILITY but shall not,
66
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined to have resulted from
the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as
the case may be, such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
fifteen (15) days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower and the Administrative Agent (and, in the case of an assignment of
all or a portion of a Commitment or any Lender's obligations in respect of its
LC Exposure or Swingline Exposure, the Issuing Bank and the Swingline Lender)
must give their prior written consent to such assignment (which consent shall
not be unreasonably withheld), (ii) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be
67
less than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03).
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Houston, Texas 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,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be prima facie evidence of the correctness thereof, and the
Borrower, the Administrative Agent, the Issuing Bank 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, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower, the Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank, or the Swingline Lender sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations
68
under this Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.17(c) as
though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14, 2.15 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.
69
This Agreement and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. Without limiting the remedies
provided for in Article VII hereof, if an Event of Default shall have occurred
and be continuing and after acceleration of the Obligations, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender to or for the credit or the account of the
Borrower or any Guarantor against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement,
its Notes or the Obligations and although Obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) THIS AGREEMENT, ALL NOTES, THE OTHER LOAN DOCUMENTS AND ALL OTHER
DOCUMENTS EXECUTED IN CONNECTION HEREWITH, EXCEPT AS OTHERWISE PROVIDED THEREIN,
SHALL BE DEEMED TO BE CONTRACTS AND AGREEMENTS UNDER THE LAWS OF THE STATE OF
TEXAS AND OF THE UNITED STATES OF AMERICA AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF TEXAS AND OF THE
UNITED STATES. Without limitation of the foregoing, nothing in this Agreement,
or in the Notes or in any other Loan Document shall be deemed to constitute a
waiver of any rights which any Lender may have under applicable federal
legislation relating to the amount of interest which such Lender may contract
for, take, receive or charge in respect of the Loan and the Loan Documents,
including any right to take, receive, reserve and charge interest at the rate
allowed by the law of the state where any Lender is located. The Administrative
Agent, each Lender and the Borrower further agree that insofar as the provisions
of the Texas Finance Code, Chapter 303, as amended, are applicable to the
determination of the Highest Lawful Rate with respect to the Notes and the
Obligations hereunder and under the other Loan Documents, the indicated rate
ceiling of such Code shall be applicable; provided, however, that to the extent
permitted by such Code, the Administrative Agent may from time to time by notice
to the Borrower revise the election of such interest rate
70
ceiling as such ceiling affects the then current or future balances of the
Loans. The provisions of the Texas Finance Code, Chapter 346, do not apply to
this Agreement, any Note issued hereunder or the other Loan Documents.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the district courts
of Xxxxxx County, Texas and of the United States District Court of the Southern
District of Texas, sitting in Houston, Texas and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
71
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential)
to be used solely in connection with the administration of the Loan Documents,
(b) to the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any Lender on
a nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Interest Rate Limitation. Each provision in this
Agreement and each other Loan Document is expressly limited so that in no event
whatsoever shall the amount paid, or otherwise agreed to be paid, to the
Administrative Agent or any Lender, or charged, contracted for, reserved, taken
or received by the Administrative Agent or any Lender, for the use, forbearance
or detention of the money to be loaned under this Agreement or any Loan Document
or otherwise (including any sums paid as required by any covenant or obligation
contained herein or in any other Loan Document which is for the use, forbearance
or detention of such money), exceed the Highest Lawful Rate, and all amounts
owed under this Agreement and each other Loan Document shall be held to be
subject to reduction so that any and all amounts so paid or agreed to be paid,
charged, contracted for, reserved, taken or received which are for the use,
forbearance or detention of money under this Agreement or such Loan Document
shall in no event exceed the Highest Lawful Rate. Anything in any Note or any
other Loan Document to the contrary notwithstanding, the Borrower shall not be
required to pay unearned interest on any Note and the Borrower shall not be
required to pay interest on the Obligations at a rate in excess of the Highest
Lawful Rate, and if the effective rate of interest which would otherwise be
payable under such Note and such Loan Documents would exceed the Highest Lawful
Rate, or if the holder of such Note shall receive any unearned interest or shall
receive monies that are deemed to constitute interest which would increase the
effective rate of interest payable by the Borrower under such Note and the other
Loan Documents to a rate in excess of the Highest Lawful Rate, then (a) the
amount of interest which would otherwise be payable
72
by the Borrower shall be reduced to the amount allowed under applicable law and
(b) any unearned interest paid by the Borrower or any interest paid by the
Borrower in excess of the Highest Lawful Rate shall in the first instance be
credited on the principal of the Obligations of the Borrower (or if all such
Obligations shall have been paid in full, refunded to the Borrower). It is
further agreed that, without limitation of the foregoing, all calculations of
the rate of interest contracted for, reserved, taken, charged or received by any
Lender under the Notes and the Obligations and under the other Loan Documents
are made for the purpose of determining whether such rate exceeds the Highest
Lawful Rate, and shall be made, to the extent permitted by usury laws applicable
to such Lender, by amortizing, prorating and spreading in equal parts during the
period of the full stated term of the Notes and this Agreement and all interest
at any time contracted for, charged or received by such Lender in connection
therewith.
SECTION 9.14. FINAL AGREEMENT OF THE PARTIES. THIS AGREEMENT
(INCLUDING THE SCHEDULES AND EXHIBITS HERETO), THE NOTES, THE GUARANTY IN
ARTICLE X HEREOF, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
SECTION 9.15. Limited Liability. No director, officer, employee,
incorporator or stockholder of the Borrower or any Subsidiary, as such, shall
have any liability for any obligations of the Borrower under the Notes, the
Guarantors under the Guaranty or the Loan Documents or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Lender
waives and releases all such liability. The waiver and release are part of the
consideration for Transactions.
ARTICLE X
Guaranty
SECTION 10.01. Guaranty In consideration of, and in order to induce
the Lenders to make the Loans hereunder, each Subsidiary as a Guarantor hereby
absolutely, unconditionally and irrevocably, jointly and severally guarantees
the punctual payment and performance when due, whether at stated maturity, by
acceleration or otherwise, of the Obligations, and all other obligations and
covenants of the Borrower now or hereafter existing under this Agreement, the
Notes and the other Loan Documents whether for principal, interest (including
interest accruing or becoming owing both prior to and subsequent to the
commencement of any proceeding against or with respect to the Borrower under any
chapter of the Bankruptcy Code), Fees, commissions, expenses (including
reasonable attorneys' fees and expenses) or otherwise, and all reasonable costs
and expenses, if any, incurred by the Administrative Agent or any Lender in
connection with enforcing any rights under this Guaranty (all such obligations
being the "Guaranteed Obligations"), and agrees to pay any and all reasonable
expenses incurred by each Lender and the Administrative Agent in enforcing this
73
Guaranty; provided that notwithstanding anything contained herein or in any of
the Loan Documents to the contrary, the maximum liability of each Guarantor
hereunder and under the other Loan Documents shall in no event exceed such
Guarantor's Maximum Guaranteed Amount, and provided further, each Guarantor
shall be unconditionally required to pay all amounts demanded of it hereunder
prior to any determination of such Maximum Guaranteed Amount and the recipient
of such payment, if so required by a final non-appealable order of a court of
competent jurisdiction, shall then be liable for the refund of any excess
amounts. If any such rebate or refund is ever required, all other Guarantors
(and the Borrower) shall be fully liable for the repayment thereof to the
maximum extent allowed by applicable law. This Guaranty is an absolute,
unconditional, present and continuing guaranty of payment and not of
collectibility and is in no way conditioned upon any attempt to collect from the
Borrower or any other action, occurrence or circumstance whatsoever. Each
Guarantor agrees that the Guaranteed Obligations may at any time and from time
to time exceed the Maximum Guaranteed Amount of such Guarantor without impairing
this Guaranty or affecting the rights and remedies of the Lenders hereunder.
SECTION 10.02. Continuing Guaranty. Each Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees
that the Guaranteed Obligations and Loan Documents may be extended or renewed,
and Loans repaid and reborrowed in whole or in part, without notice to or assent
by such Guarantor, and that it will remain bound upon this Guaranty
notwithstanding any extension, renewal or other alteration of any Guaranteed
Obligations or Loan Documents, or any repayment and reborrowing of Loans. To
the maximum extent permitted by applicable law, the obligations of each
Guarantor under this Guaranty shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms hereof under any
circumstances whatsoever, including:
(a) any extension, renewal, modification, settlement, compromise,
waiver or release in respect of any Guaranteed Obligations;
(b) any extension, renewal, amendment, modification, rescission,
waiver or release in respect of any Loan Documents;
(c) any release, exchange, substitution, non-perfection or invalidity
of, or failure to exercise rights or remedies with respect to, any direct or
indirect security for any Guaranteed Obligations, including the release of any
Guarantor or other Person liable on any Guaranteed Obligations;
(d) any change in the corporate existence, structure or ownership of
the Borrower, any Guarantor, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Borrower, such Guarantor, any other
Guarantor or any of their respective assets;
(e) the existence of any claim, defense, set-off or other rights or
remedies which such Guarantor at any time may have against the Borrower, or the
Borrower or such Guarantor may have at any time against the Administrative
Agent, any Lender, any other Guarantor or any other Person, whether in
connection with this Guaranty, the Loan Documents, the transactions
74
contemplated thereby or any other transaction other than by the payment in full
by the Borrower of the Guaranteed Obligations after the termination of the
Commitments of the Lenders;
(f) any invalidity or unenforceability for any reason of this
Agreement or other Loan Documents, or any provision of law purporting to
prohibit the payment or performance by the Borrower, such Guarantor or any other
Guarantor of the Guaranteed Obligations or Loan Documents, or of any other
obligation to the Administrative Agent or any Lender; or
(g) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing.
SECTION 10.03. Effect of Debtor Relief Laws. If after receipt of any
payment of, or proceeds of any security applied (or intended to be applied) to
the payment of all or any part of the Guaranteed Obligations, the Administrative
Agent or any Lender is for any reason compelled to surrender or voluntarily
surrenders (under circumstances in which it believes it could reasonably be
expected to be so compelled if it did not voluntarily surrender), such payment
or proceeds to any Person (a) because such payment or application of proceeds is
or may be avoided, invalidated, declared fraudulent, set aside, determined to be
void or voidable as a preference, fraudulent conveyance, fraudulent transfer,
impermissible set-off or a diversion of trust funds or (b) for any other similar
reason, including (i) any judgment, decree or order of any court or
administrative body having jurisdiction over the Administrative Agent, any
Lender or any of their respective properties or (ii) any settlement or
compromise of any such claim effected by the Administrative Agent or any Lender
with any such claimant (including the Borrower), then the Guaranteed Obligations
or part thereof intended to be satisfied shall be reinstated and continue, and
this Guaranty shall continue in full force as if such payment or proceeds have
not been received, notwithstanding any revocation thereof or the cancellation of
any Note or any other instrument evidencing any Guaranteed Obligations or
otherwise; and the Guarantors, jointly and severally, shall be liable to pay the
Administrative Agent and the Lenders, and hereby do indemnify the Administrative
Agent and the Lenders and hold them harmless for the amount of such payment or
proceeds so surrendered and all expenses (including reasonable attorneys' fees,
court costs and expenses attributable thereto) incurred by the Administrative
Agent or any Lender in the defense of any claim made against it that any payment
or proceeds received by the Administrative Agent or any Lender in respect of all
or part of the Guaranteed Obligations must be surrendered. The provisions of
this paragraph shall survive the termination of this Guaranty, and any
satisfaction and discharge of the Borrower by virtue of any payment, court order
or any federal or state law.
SECTION 10.04. Partial Waiver of Subrogation. Notwithstanding any
payment or payments made by any Guarantor hereunder, or any set-off or
application by the Administrative Agent or any Lender of any security or of any
credits or claims, no Guarantor will assert or exercise any rights of the
Administrative Agent or any Lender or of such Guarantor against the Borrower to
recover the amount of any payment made by such Guarantor to the Administrative
Agent or any Lender hereunder by way of any claim, remedy or subrogation,
reimbursement, exoneration, contribution, indemnity, participation or otherwise
arising by contract, by statute, under common law or otherwise, and such
Guarantor shall not have any right to exercise any right of recourse to or any
claim against assets or property of the Borrower, in each case unless and until
the Obligations of the
75
Borrower guaranteed hereby have been fully and finally satisfied. Until such
time (but not thereafter), each Guarantor hereby expressly waives any right to
exercise any claim, right or remedy which such Guarantor may now have or
hereafter acquire against the Borrower that arises under this Agreement or any
other Loan Document or from the performance by any Guarantor of the Guaranty
hereunder including any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification or participation in any claim, right
or remedy of the Administrative Agent or any Lender against the Borrower or any
Guarantor, or any security that the Administrative Agent or any Lender now has
or hereafter acquires, whether or not such claim, right or remedy arises in
equity, under contract, by statute, under common law or otherwise. If any amount
shall be paid to a Guarantor by the Borrower or another Guarantor after payment
in full of the Obligations, and the Obligations shall thereafter be reinstated
in whole or in part and the Administrative Agent or any Lender forced to repay
any sums received by any of them in payment of the Obligations, this Guaranty
shall be automatically reinstated and such amount shall be held in trust for the
benefit of the Administrative Agent and the Lenders and shall forthwith be paid
to the Administrative Agent to be credited and applied to the Guaranteed
Obligations, whether matured or unmatured. The provisions of this paragraph
shall survive the termination of this Guaranty, and any satisfaction and
discharge of the Borrower by virtue of any payment, court order or any federal
or state law.
SECTION 10.05. Subordination. If any Guarantor becomes the holder of
any indebtedness payable by the Borrower or another Guarantor, each Guarantor
hereby subordinates all indebtedness owing to it from the Borrower or such other
Guarantor to all indebtedness of the Borrower to the Administrative Agent and
the Lenders, and agrees that during the continuance of any Event of Default it
shall not accept any payment on the same until payment in full of the
Obligations of the Borrower under this Agreement and the other Loan Documents
after the termination of the Commitments of the Lenders and shall in no
circumstance whatsoever attempt to set-off or reduce any obligations hereunder
because of such indebtedness. If any amount shall nevertheless be paid in
violation of the foregoing to a Guarantor by the Borrower or another Guarantor
prior to payment in full of the Guaranteed Obligations, such amount shall be
held in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent to be credited and applied
to the Guaranteed Obligations, whether matured or unmatured.
SECTION 10.06. Waiver. To the extent permitted by applicable law,
each Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and waives presentment, demand of payment, notice of intent to accelerate,
notice of dishonor or nonpayment and any requirement that the Administrative
Agent or any Lender institute suit, collection proceedings or take any other
action to collect the Guaranteed Obligations, including any requirement that the
Administrative Agent or any Lender protect, secure, perfect or insure any Lien
against any property subject thereto or exhaust any right or take any action
against the Borrower or any other Person or any collateral (it being the
intention of the Administrative Agent, the Lenders and each Guarantor that this
Guaranty is to be a guaranty of payment and not of collection). It shall not be
necessary for the Administrative Agent or any Lender, in order to enforce any
payment by any Guarantor hereunder, to institute suit or exhaust its rights and
remedies against the Borrower, any other Guarantor or any other Person,
including others liable to pay any Guaranteed Obligations, or to enforce its
rights against any security
76
ever given to secure payment thereof. Each Guarantor hereby expressly waives to
the maximum extent permitted by applicable law each and every right to which it
may be entitled by virtue of the suretyship laws of the State of Texas,
including any and all rights it may have pursuant to Rule 31, Texas Rules of
Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code
and Chapter 34 of the Texas Business and Commerce Code. Each Guarantor hereby
waives marshaling of assets and liabilities, notice by the Administrative Agent
or any Lender of any indebtedness or liability to which such Lender applies or
may apply any amounts received by such Lender, and of the creation, advancement,
increase, existence, extension, renewal, rearrangement or modification of the
Guaranteed Obligations. Each Guarantor expressly waives, to the extent permitted
by applicable law, the benefit of any and all laws providing for exemption of
property from execution or for valuation and appraisal upon foreclosure.
SECTION 10.07. Full Force and Effect. This Guaranty is a continuing
guaranty and shall remain in full force and effect until all of the Obligations
of the Borrower under this Agreement and the other Loan Documents and all other
amounts payable under this Guaranty have been paid in full (after the
termination of the Commitments of the Lenders). All rights, remedies and powers
provided in this Guaranty may be exercised, and all waivers contained in this
Guaranty may be enforced, only to the extent that the exercise or enforcement
thereof does not violate any provisions of applicable law which may not be
waived.
SECTION 10.08. Termination of Guaranty. Upon the sale or other
disposition (by merger or otherwise) of a Guarantor (or all or substantially all
of such Guarantor's voting stock or its property and assets) to a Person other
than the Borrower or another Guarantor and pursuant to a transaction that is
otherwise in compliance with this Agreement, such Guarantor (unless it otherwise
remains a Subsidiary) shall be deemed released from its Guaranty and the related
Obligations set forth in this Agreement and the other Loan Documents to which
Guarantor is a party and all Liens on the capital stock of such Guarantor and
Liens on the property or assets created or existing under the Loan Documents
shall automatically and without further action be terminated and of no further
force and effect. The Administrative Agent and the Lenders agree to execute and
deliver any releases, termination statements, reassignments, discharges of
liens, pledges, security interests and amend any Loan Document or any other
document executed pursuant to the Agreement to evidence such termination;
provided no Default or Event of Default shall have occurred and be continuing
and provided further that any such termination shall occur only to the extent
that all Obligations of such Guarantor under all of its guarantees of and under
all of its pledges of assets or other security interests which secure, other
Indebtedness of the Borrower shall also terminate or be released upon such sale
or other disposition.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
U.S. CONCRETE, INC., a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
Each of the undersigned by executing this Agreement acknowledges that it is
a Guarantor hereunder and, as such, is subject to and agrees to be bound by all
of the terms and conditions of Article X hereof.
GUARANTORS:
AFTM Corporation, a Michigan corporation
B.C.B.M. Transport, Inc., a California corporation
Xxxx Concrete, Inc., a New Jersey corporation
Bay Cities Building Materials Co., Inc., a California
corporation
Carrier Excavation and Foundation Company, a Delaware
corporation
Central Concrete Supply Co., Inc., a California
corporation
Concrete XIV Acquisition, Inc., a Delaware corporation
Concrete XV Acquisition, Inc., a Delaware corporation
Concrete XVIII Acquisition, Inc., a Delaware
corporation
Concrete XIX Acquisition, Inc., a Delaware corporation
Concrete XX Acquisition, Inc., a Delaware corporation
DYNA, Inc., a Delaware corporation
Fendt Transit Mix, Inc., a Michigan corporation
Hunter Equipment Company, a Michigan corporation
Olive Branch Ready Mix, Inc., a Delaware corporation
Opportunity Concrete Corporation , a District of
Columbia corporation
X.X. Xxxxx/Associates
d/b/a/ Santa Xxxx Cast Products Co., a California
corporation
Ready Mix Concrete Company of Knoxville, a Delaware
corporation
San Diego Precast Concrete, Inc., a Delaware
corporation
USC GP, Inc., a Delaware corporation
Xxxxxx'x Concrete, Inc., a California corporation
Western Concrete Products, Inc., a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
USC Management Co., L.P.
By: USC GP, Inc.
By:/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Vice President
ADMINISTRATIVE AGENT/LENDER:
---------------------------
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Dolphin
-----------------------------
Name: Xxxxx X. Dolphin
---------------------------
Title: Senior Vice President
-------------------------
ADDRESS FOR NOTICE:
Chase Bank of Texas, National Association
000 Xxxx Xxxxxx
0xx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn.: Xxxxx X. Dolphin
Syndication Agent/Lender:
------------------------
BANKERS TRUST COMPANY
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
-------------------------
Title: Vice President
------------------------
ADDRESS FOR NOTICE:
BANKERS TRUST COMPANY
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000/9080
Telecopy: (000) 000-0000
Attn: Xxxxxx Xxxxx/Xxxx Xxxx
DOCUMENTATION AGENT/LENDER:
--------------------------
FIRST UNION NATIONAL BANK
By:/s/ Xxx Xxxxxx
---------------------
Name: Xxx Xxxxxx
Title: Vice President
ADDRESS FOR NOTICE:
First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxx
Lender:
------
BANK OF AMERICA, N.A.
By:/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Vice President
ADDRESS FOR NOTICE:
BANK OF AMERICA, N.A.
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxxx
CO-MANAGING AGENT/LENDER:
------------------------
BANK ONE, TEXAS, NA
By:/s/ Xxxx X. Xxxxxxxxx, XX
-----------------------------
Xxxx X. Xxxxxxxxx, XX
Vice President
ADDRESS FOR NOTICE:
BANK ONE, TEXAS, NA
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx, XX
CO-MANAGING AGENT/LENDER:
------------------------
CREDIT LYONNAIS
NEW YORK BRANCH
By:/s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
ADDRESS FOR NOTICE:
c/o CREDIT LYONNAIS
REPRESENTATIVE OFFICE
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx Xxxxxx
CO-MANAGING AGENT/LENDER:
------------------------
THE BANK OF NOVA SCOTIA
By:/s/ F. C. H. Xxxxx
--------------------
Name: F. C. H. Xxxxx
Title: Senior Manager Loan Operations
ADDRESS FOR NOTICE:
THE BANK OF NOVA SCOTIA
Atlanta Agency
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn.: F.C.H. Xxxxx
with a copy to:
THE BANK OF NOVA SCOTIA
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxxx
CO-MANAGING AGENT/LENDER:
------------------------
BRANCH BANKING & TRUST COMPANY
By:/s/ Xxxx Xxxxx
------------------
Name: Xxxx Xxxxx
Title: Vice President
ADDRESS FOR NOTICE:
BRANCH BANKING & TRUST
COMPANY
000 Xxxxx Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxx
LENDER:
------
COMERICA BANK
By:/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
Vice President
ADDRESS FOR NOTICE:
COMERICA BANK
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxxx
