1
EXHIBIT 4.1
FINAL
================================================================================
CREDIT AGREEMENT
DATED AS OF NOVEMBER 10, 2000
AMONG
CENTEX CONSTRUCTION PRODUCTS, INC.,
AS PARENT BORROWER,
REPUBLIC HOLDING CORPORATION,
AS SUBSIDIARY BORROWER,
THE LENDERS,
BANK ONE, TEXAS, NA,
AS ADMINISTRATIVE AGENT,
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT,
PNC BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT,
BANK ONE, NA,
AS LC ISSUER,
AND
BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND SOLE BOOK MANAGER
================================================================================
2
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS...........................................................................................1
ARTICLE II - THE CREDITS.........................................................................................17
2.1. Commitment.....................................................................................17
2.2. Required Payments; Termination.................................................................18
2.3. Ratable Loans..................................................................................18
2.4. Types of Advances..............................................................................18
2.5. Commitment Fee; Reductions in Aggregate Commitment.............................................18
2.6. Minimum Amount of Each Advance.................................................................18
2.7. Optional Principal Payments....................................................................18
2.8. Method of Selecting Types and Interest Periods for New Advances................................19
2.9. Conversion and Continuation of Outstanding Advances............................................19
2.10. Changes in Interest Rate, etc..................................................................20
2.11. Rates Applicable After Default.................................................................20
2.12. Method of Payment..............................................................................21
2.13. Noteless Agreement; Evidence of Indebtedness...................................................21
2.14. Telephonic Notices.............................................................................22
2.15. Interest Payment Dates; Interest and Fee Basis.................................................22
2.16. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions................22
2.17. Lending Installations..........................................................................23
2.18. Non-Receipt of Funds by the Administrative Agent...............................................23
2.19. Facility LCs...................................................................................23
2.19.1. Issuance..........................................................................23
2.19.2. Participations....................................................................24
2.19.3. Notice............................................................................24
2.19.4. LC Fees...........................................................................24
2.19.5. Administration; Reimbursement by Lenders..........................................25
2.19.6. Reimbursement by Parent Borrower..................................................25
2.19.7. Obligations Absolute..............................................................26
2.19.8. Actions of LC Issuer..............................................................26
2.19.9. Indemnification...................................................................27
2.19.10. Lenders' Indemnification..........................................................27
2.19.11. Facility LC Collateral Account....................................................27
2.19.12. Rights as a Lender................................................................28
2.20. Replacement of Lender..........................................................................28
2.21. Swing Line Subfacility.........................................................................28
2.21.1. Conditions........................................................................28
2.21.2. Lenders' Funding of Swing Line Advances as Advances Under Revolving
Credit Facility...................................................................29
-i-
3
2.22. Revolving Subfacility..........................................................................30
2.23. Prepayments from Sale of Assets................................................................30
2.24. Joint and Several Liability of the Borrowers...................................................31
2.25. Prepayments from Sales of Capital Stock........................................................33
ARTICLE III - YIELD PROTECTION; TAXES............................................................................33
3.1. Yield Protection...............................................................................33
3.2. Changes in Capital Adequacy Regulations........................................................34
3.3. Availability of Types of Advances..............................................................34
3.4. Funding Indemnification........................................................................35
3.5. Taxes..........................................................................................35
3.6. Lender Statements; Survival of Indemnity.......................................................37
ARTICLE IV - CONDITIONS PRECEDENT................................................................................37
4.1. Initial Advance................................................................................37
4.2. Each Credit Extension..........................................................................40
ARTICLE V - REPRESENTATIONS AND WARRANTIES.......................................................................41
5.1. Existence and Standing.........................................................................41
5.2. Authorization and Validity.....................................................................41
5.3. No Conflict; Government Consent................................................................41
5.4. Financial Statements...........................................................................42
5.5. Material Adverse Change........................................................................42
5.6. Taxes..........................................................................................42
5.7. Litigation and Contingent Obligations..........................................................42
5.8. Subsidiaries...................................................................................42
5.9. ERISA..........................................................................................43
5.10. Accuracy of Information........................................................................43
5.11. Regulation U...................................................................................43
5.12. Material Agreements............................................................................43
5.13. Compliance With Laws...........................................................................43
5.14. Ownership of Properties........................................................................43
5.15. Plan Assets; Prohibited Transactions...........................................................43
5.16. Environmental Matters..........................................................................44
5.17. Investment Company Act.........................................................................44
5.18. Public Utility Holding Company Act.............................................................44
5.19. Subordinated Indebtedness......................................................................44
5.20. Post-Retirement Benefits.......................................................................44
5.21. Solvency.......................................................................................44
5.22. November 2000 Acquisition......................................................................45
5.23. Premier Acquisition Agreement..................................................................45
5.24. Indenture......................................................................................45
ARTICLE VI - COVENANTS...........................................................................................46
-ii-
4
6.1. Financial Reporting............................................................................46
6.2. Use of Proceeds................................................................................47
6.3. Notice of Default..............................................................................47
6.4. Conduct of Business............................................................................47
6.5. Taxes..........................................................................................48
6.6. Insurance......................................................................................48
6.7. Compliance with Laws...........................................................................48
6.8. Maintenance of Properties......................................................................48
6.9. Inspection.....................................................................................48
6.10. Dividends......................................................................................48
6.11. Indebtedness...................................................................................49
6.12. Merger.........................................................................................49
6.13. Sale of Assets.................................................................................49
6.14. Investments and Acquisitions...................................................................50
6.15. Liens..........................................................................................50
6.16. Capital Expenditures...........................................................................51
6.18. Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities........................51
6.19. Contingent Obligations.........................................................................51
6.20. Letters of Credit..............................................................................52
6.21. Financial Contracts............................................................................52
6.22. Financial Covenants............................................................................52
6.22.1. Interest Coverage Ratio...........................................................52
6.22.2. Leverage Ratio....................................................................52
6.22.3. Minimum Tangible Net Worth........................................................52
6.23. Lines of Business..............................................................................52
6.24. Prepayment of Debt.............................................................................52
6.25. Future Subsidiaries............................................................................52
6.26. Prohibition on Granting Negative Pledges.......................................................53
6.27. Prohibition on Granting Restrictions on Distributions..........................................53
6.28. Prohibition on Synthetic Leases................................................................53
6.29. Amendments to Indebtedness.....................................................................53
6.30. Joinder of Subsidiary Borrower.................................................................53
6.31. Target Senior Subordinated Notes...............................................................54
ARTICLE VII - DEFAULTS...........................................................................................54
ARTICLE VIII - ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES....................................................56
8.1. Acceleration; Facility LC Collateral Account...................................................56
ARTICLE IX - GENERAL PROVISIONS..................................................................................59
9.1. Survival of Representations....................................................................59
9.2. Governmental Regulation........................................................................59
9.3. Headings.......................................................................................59
9.4. ENTIRE AGREEMENT...............................................................................59
9.5. Several Obligations; Benefits of this Agreement................................................59
-iii-
5
9.6. Expenses; Indemnification......................................................................59
9.7. Numbers of Documents...........................................................................60
9.8. Accounting.....................................................................................60
9.9. Severability of Provisions.....................................................................61
9.10. Nonliability of Lenders........................................................................61
9.11. Confidentiality................................................................................61
9.12. Nonreliance....................................................................................61
9.14. Maximum Interest Rate..........................................................................61
9.15. Non-Application of Chapter 346 of Texas Finance Code...........................................62
9.16. Survival of Prior Agreements...................................................................62
ARTICLE X - THE ADMINISTRATIVE AGENT.............................................................................62
10.1. Appointment; Nature of Relationship............................................................62
10.2. Powers.........................................................................................63
10.3. General Immunity...............................................................................63
10.4. No Responsibility for Credit Extensions, Recitals, etc.........................................63
10.5. Action on Instructions of Lenders..............................................................63
10.6. Employment of Administrative Agents and Counsel................................................64
10.7. Reliance on Documents; Counsel.................................................................64
10.8. Administrative Agent's Reimbursement and Indemnification.......................................64
10.9. Notice of Default..............................................................................65
10.10. Rights as a Lender.............................................................................65
10.11. Lender Credit Decision.........................................................................65
10.12. Successor Administrative Agent.................................................................65
10.13. Administrative Agent and Arranger Fees.........................................................66
10.14. Delegation to Affiliates.......................................................................66
10.15. Co-Agents, Documentation Agent, Syndication Agent, etc.........................................66
ARTICLE XI - SETOFF; RATABLE PAYMENTS............................................................................67
11.1. Setoff.........................................................................................67
11.2. Ratable Payments...............................................................................67
ARTICLE XII - BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..................................................67
12.1. Successors and Assigns.........................................................................67
12.2. Participations.................................................................................68
12.2.1. Permitted Participants; Effect....................................................68
12.2.2. Voting Rights.....................................................................68
12.2.3. Benefit of Setoff.................................................................68
12.3. Assignments....................................................................................69
12.3.1. Permitted Assignments.............................................................69
12.3.2. Effect; Effective Date............................................................69
12.4. Dissemination of Information...................................................................70
12.5. Tax Treatment..................................................................................70
-iv-
6
ARTICLE XIII - NOTICES...........................................................................................70
13.1. Notices........................................................................................70
13.2. Change of Address..............................................................................70
ARTICLE XIV - COUNTERPARTS.......................................................................................71
ARTICLE XV - CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL........................................71
15.1. CHOICE OF LAW..................................................................................71
15.2. CONSENT TO JURISDICTION........................................................................71
15.3. WAIVER OF JURY TRIAL...........................................................................71
-v-
7
PRICING SCHEDULE
EXHIBITS:
A - FORM OF OPINION
B - COMPLIANCE CERTIFICATE
C - ASSIGNMENT AGREEMENT
D - LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
E - NOTE
SCHEDULES:
1 - SUBSIDIARIES AND OTHER INVESTMENTS
2 - INDEBTEDNESS AND LIENS
3 - EXISTING FACILITY LCS
4 - CORPORATE STRUCTURE
-vi-
8
CREDIT AGREEMENT
This Agreement, dated as of November 10, 2000, is among Centex
Construction Products, Inc., a Delaware corporation, Republic Holding
Corporation, a Nevada corporation, the Lenders, Bank of America, N.A., a
national banking association, as Syndication Agent, PNC Bank, National
Association, a national banking association, as Documentation Agent, Bank One,
NA, as LC Issuer, and Bank One, Texas, NA, a national banking association,
having its principal office in Dallas, Texas, as Administrative Agent. The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Parent Borrower or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or limited
liability company, or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one transaction
or as the most recent transaction in a series of transactions) at least a
majority (in number of votes) of the securities of a corporation which have
ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage or voting power) of the outstanding ownership interests
of a partnership or limited liability company, including without limitation, the
November 2000 Acquisition.
"Advance" means (a) a borrowing hereunder, (i) made by the Lenders on
the same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the case of
Eurodollar Loans, for the same Interest Period, (b) a Swing Line Advance, and
(c) a payment under a Facility LC.
"Administrative Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article X.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
9
"Agents" means, collectively, the Administrative Agent, the Syndication
Agent and the Documentation Agent.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this credit agreement, as it may be amended, restated
or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Commitment Fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Manager.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President, Chief Executive
Officer, Executive Vice President, Chief Financial Officer, Senior Vice
President or Assistant Treasurer of the Parent Borrower, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, Texas, NA, a national banking association
having its principal office in Dallas, Texas, in its individual capacity, and
its successors.
-2-
10
"Borrowers" means Parent Borrower and Subsidiary Borrower.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Dallas and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Dallas for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Parent Borrower
and its Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (i) the cost of assets acquired with Capitalized Lease Obligations,
(ii) expenditures of insurance proceeds to rebuild or replace any asset after a
casualty loss, (iii) leasehold improvement expenditures for which the Parent
Borrower or a Subsidiary is reimbursed promptly by the lessor, and (iv) any
Permitted Acquisition.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-2 or better by S&P or P-2 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000; provided in each case that
the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest.
"Change in Control" means (i) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 50% or more of the outstanding shares of voting stock
of the Parent Borrower; or (ii) Centex Corporation shall cease to own, free and
clear
-3-
11
of all Liens or other encumbrances, greater than 50% of the outstanding shares
of voting stock of the Parent Borrower on a fully diluted basis.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans to, and participate in Facility LCs issued upon the application of,
the Borrowers in an aggregate amount not exceeding the amount set forth opposite
its signature below or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Parent Borrower and its Subsidiaries
calculated on a consolidated basis for such period.
"Consolidated EBIT" means Consolidated EBITDA minus depreciation and
amortization, all calculated for the Parent Borrower and its Subsidiaries on a
consolidated basis.
"Consolidated EBITDA" means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) extraordinary losses incurred other than in the
ordinary course of business, minus, to the extent included in Consolidated Net
Income, extraordinary gains realized other than in the ordinary course of
business, all calculated for the Parent Borrower and its Subsidiaries on a
consolidated basis. Notwithstanding anything herein to the contrary, but without
duplication, Consolidated EBITDA shall be inclusive of either (a) in the case of
an Acquisition of equity interests in a Person, the EBITDA (calculated on a
basis consistent with this definition of Consolidated EBITDA) of such Person
before it became a Subsidiary of the Parent Borrower or (b) in the case of an
Acquisition of assets, or any other acquisition of assets if the Administrative
Agent so agrees, the EBITDA associated with such acquired assets before such
acquisition by the Parent Borrower or any Subsidiary but exclusive of either (1)
in the case of a disposition of equity interests in a Person, the EBITDA
(calculated on the basis consistent with this definition of Consolidated EBITDA)
of such Person after it is directly or indirectly disposed of by the Parent
Borrower or (2) in the case of a disposition of assets, the EBITDA associated
with such assets after such assets are disposed of by the Parent Borrower or any
Subsidiary, all of which amounts shall be based upon audited financial
statements.
"Consolidated Funded Indebtedness" means at any time the aggregate
dollar amount of Consolidated Indebtedness which has actually been funded and is
outstanding at such time, whether or not such amount is due or payable at such
time.
-4-
12
"Consolidated Indebtedness" means at any time the Indebtedness of the
Parent Borrower and its Subsidiaries calculated on a consolidated basis as of
such time.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense and preferred stock dividends of the Parent Borrower and
its Subsidiaries calculated on a consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Parent Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Parent Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Tangible Net Worth" means at any time the Consolidated
Net Worth, minus any intangible assets, including, without limitation, patents,
patent rights, trademarks, trade names, franchises, copyrights, goodwill, and
other similar intangible assets of the Parent Borrower and its Subsidiaries
calculated on a consolidated basis as of such time.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Parent Borrower
or any of its Subsidiaries, are treated as a single employer under Section 414
of the Code.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date of a Facility LC.
"Default" means an event described in Article VII.
"Documentation Agent" means PNC Bank, National Association in its
capacity as documentation agent, and not in its individual capacity as a Lender.
-5-
13
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters
Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period, provided that, (i) if Reuters Screen FRBD is not available to the
Administrative Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
and having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Administrative
Agent, the applicable Eurodollar Base Rate for the relevant Interest Period
shall instead be the rate determined by the Administrative Agent to be the rate
at which Bank One or one of its Affiliate banks offers to place deposits in U.S.
dollars with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant Eurodollar
Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on
-6-
14
it, by (i) the jurisdiction under the laws of which such Lender or the
Administrative Agent is incorporated or organized or (ii) the jurisdiction in
which the Administrative Agent's or such Lender's principal executive office or
such Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Facility LCs" is defined in Section 2.19.1.
"Facility LC" is defined in Section 2.19.1.
"Facility LC Application" is defined in Section 2.19.3.
"Facility LC Collateral Account" is defined in Section 2.19.11.
"Facility Termination Date" means November 10, 2003, or any earlier
date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Dallas
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Guarantors" means collectively, all of the Significant Subsidiaries of
the Parent Borrower and their respective successors and assigns.
-7-
15
"Guaranty" means that certain Guaranty dated as of the date hereof
executed by the Guarantors in favor of the Administrative Agent, for the ratable
benefit of the Lenders, as it may be amended, restated, supplemented or modified
and in effect from time to time.
"Indebtedness" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens on or
payable out of the proceeds or production from Property now or hereafter owned
or acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) obligations to purchase securities or
other Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) Net Mark-to-Market Exposure under Rate Management
Transactions and other Financial Contracts, (viii) Contingent Obligations, (ix)
Letters of Credit, (x) Sale and Leaseback Transactions, (xi) Off-Balance Sheet
Liabilities, and (xii) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles
would be shown as a liability on the consolidated balance sheet of such Person.
"Indenture" is defined in Section 4.1.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Parent Borrower pursuant to this Agreement. Such Interest Period shall end on
the day which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"Joint and Several Obligations" shall mean that portion of the
Obligations consisting of (a) the Loans under the Revolving Subfacility and all
principal, interest and fees in connection with such Loans, (b) all fees
incurred or owed by the Subsidiary Borrower pursuant to the terms of the Loan
Documents, including, without limitation, its portion of the commitment fees,
(c) any indemnification
-8-
16
obligations of the Subsidiary Borrower under the Loan Documents and (d) any and
all other costs and expenses that the Subsidiary Borrower is liable for pursuant
to the terms of the Loan Documents.
"LC Fee" is defined in Section 2.19.4.
"LC Issuer" means Bank One, NA (or any subsidiary or Affiliate of Bank
One, NA designated by Bank One, NA) in its capacity as issuer of Facility LCs
hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.19.5.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent listed on the signature pages hereof or on a
Schedule or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Funded Indebtedness outstanding on such date to (ii) Consolidated
EBITDA for the Parent Borrower's then most-recently ended four fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference, or
priority or other security agreement (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Facility LC Applications,
any Notes issued pursuant to Section 2.13, the Guaranty and any other related
documents, instruments and agreements now or hereafter executed by either
Borrower or any Guarantor in connection with any of the foregoing.
-9-
17
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, financial condition, or results of operations of the Parent
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrowers to perform their obligations under the Loan Documents to which either
of them is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent, the LC Issuer
or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Maximum Rate" means, at any time and with respect to any Lender, the
maximum rate of interest under applicable law that such Lender may charge the
Borrowers. The Maximum Rate shall be calculated in a manner that takes into
account any and all fees, payments, and other charges in respect of the Loan
Documents that constitute interest under applicable law. Each change in any
interest rate provided for herein based upon the Maximum Rate resulting from a
change in the Maximum Rate shall take effect without notice to either Borrower
at the time of such change in the Maximum Rate. For purposes of determining the
Maximum Rate under Texas law, the applicable rate ceiling shall be the weekly
rate ceiling described in, and computed in accordance with, Chapter 303 of the
Texas Finance Code, as amended from time to time.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Parent Borrower or
any member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Mark-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
disposition of any asset of any Person or issuance of any Indebtedness or equity
of any Person, the aggregate amount of cash received by such Person in
connection with such transaction minus reasonable fees, costs and expenses,
related taxes paid or payable, and repayment of any Indebtedness secured by
assets sold, leased, transferred or disposed of which is required to be repaid
as a result of such transaction.
"Non-U.S. Lender" is defined in Section 3.5(iv).
-10-
18
"Note" is defined in Section 2.13.
"November 2000 Acquisition" means the purchase by Subsidiary Borrower
of all of the issued and outstanding limited liability interests in the Target
pursuant to the November 2000 Acquisition Agreement.
"November 2000 Acquisition Agreement " means that certain Securities
Purchase Agreement dated as of November 10, 2000 by and among Republic Group LLC
(formerly known as Republic Group, Incorporated), the Parent Borrower, and the
Subsidiary Borrower.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrowers or either of them to the Lenders or to any Lender or any of their
Affiliates, the Administrative Agent, the LC Issuer or any indemnified party
arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
Synthetic Lease entered into by such Person, (iv) any obligation or liability
arising with respect to any sale or transfer of an interest in trade receivables
of the Parent Borrower or any Subsidiary on a limited recourse basis, or (v) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person, but excluding from this clause
(v) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of determination,
the amount obtained by aggregating the present values, determined in the case of
each particular Operating Lease by applying a discount rate (which discount rate
shall equal the discount rate which would be applied under Agreement Accounting
Principles if such Operating Lease were a Capitalized Lease) from the date on
which each fixed lease payment is due under such Operating Lease to such date of
determination, of all fixed lease payments due under all Operating Leases of the
Parent Borrower and its Subsidiaries.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Loans outstanding at such time,
plus (ii) an amount equal to its Pro Rata Share of the LC Obligations at such
time, plus (iii) an amount equal to its Pro Rata Share of the Swing Line
Advances at such time.
-11-
19
"Parent Borrower" means Centex Construction Products, Inc., a Delaware
corporation, and its successors and assigns.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the first day of each calendar quarter.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" means (a) the November 2000 Acquisition and (b)
any other Acquisition by Parent Borrower or any Subsidiary which meets the
following criteria:
(i) the acquisition target is in the construction products or
building materials industry, and if assets are being acquired, the
assets are located in the continental United States of America;
(ii) the Parent Borrower has completed not less than customary
due diligence on the acquisition target and provided evidence thereof
to the Administrative Agent, including without limitation as to
compliance with all Environmental Laws;
(iii) if the proposed Acquisition is of stock or other
ownership interests, the Acquisition will be structured so that the
acquisition target becomes a Subsidiary of the Parent Borrower and
complies with Section 6.25 of this Agreement, if applicable;
(iv) the interests being acquired shall not be subject to any
contingent liabilities, unsatisfied judgments, or any pending or
threatened action, charge, claim, demand, suit, proceeding, or
governmental investigation that could reasonably be expected to have a
Material Adverse Effect;
(v) if the total purchase price (as determined in accordance
with clause (vi) below) to be paid in connection with the proposed
Acquisition is greater than $15,000,000, the Parent Borrower shall have
provided to the Administrative Agent and each Lender (a) copies of the
audited financial statements of the acquisition target for the most
recent twelve (12) month period prior to the closing of the Acquisition
and interim financial statements of the acquisition target, each
containing at a minimum a balance sheet, statement of income, and a
statement of cash flow, and (b) a pro forma financial projection of the
Parent Borrower for the twelve (12) month period following the date of
the consummation of the proposed Acquisition which reflects pro forma
compliance with the financial covenants contained in Section 6.22 and a
certificate of an Authorized Officer of the Parent Borrower confirming
such calculations both before and after giving effect to the
Acquisition;
(vi) the total purchase price (including cash consideration
paid however classified, assumed indebtedness, noncompete payments and
consulting payments whether such amounts
-12-
20
are paid at closing or over time, and the dollar value of all assets to
be transferred by the purchaser to the seller in connection with such
Acquisition) to be paid to acquire the equity interests or assets in
any single such Acquisition does not exceed an amount equal to fifteen
percent (15%) of the Consolidated Tangible Net Worth as of the date of
such Acquisition (which calculation for purposes herein shall not
include the tangible net worth of the Person being acquired) unless the
prior written consent of Required Lenders has otherwise been obtained;
(vii) when no Default exists or will result therefrom, an
acquisition other than the Permitted Acquisitions described in clauses
(v) or (vi) above, subject to compliance with clauses (i), (ii), (iii),
(iv), and (viii) hereof, for which the total purchase price (as
determined in accordance with clause (vi) above) given does not exceed
$15,000,000;
(viii) the total aggregate purchase price (as determined in
accordance with clause (vi) above) paid in connection with all
Permitted Acquisitions shall not exceed $150,000,000 in the aggregate
unless the prior written consent of Required Lenders has otherwise been
obtained; and
(ix) the name of the acquisition target and a summary
description of the terms of the Acquisition shall have been provided to
the Lenders at least ten (10) Business Days prior to the date that the
proposed Acquisition is to be consummated.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Parent Borrower or any member of the Controlled Group may
have any liability.
"Premier Acquisition Agreement" is defined in Section 4.1.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment and the denominator
of which is the Aggregate Commitment.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
-13-
21
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter which is a rate swap,
basis swap, forward rate transaction, commodity swap, commodity option, equity
or equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Parent Borrower then outstanding under Section 2.19 to
reimburse the LC Issuer for amounts paid by the LC Issuer in respect of any one
or more drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
-14-
22
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the Aggregate Outstanding
Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Credit Facility" means the revolving credit facility
described in Section 2.1.
"Revolving Subfacility" means the subfacility provided to the Borrowers
under the Revolving Credit Facility which is described in Section 2.22.
"Revolving Subfacility Limit" is defined in Section 2.22.
"RGI" is defined in Section 4.1.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Significant Subsidiary" means any Subsidiary which at any time has
total assets with a book or fair market value (determined in accordance with
Agreement Accounting Principles) equal to or greater than ten percent (10%) of
the Consolidated Tangible Net Worth. Significant Subsidiaries shall in any event
at all times be comprised of Subsidiaries which, when aggregated with the total
assets of the Parent Borrower, in the aggregate have total assets with a book or
fair market value (determined in accordance with Agreement Accounting
Principles) equal to or greater than ninety percent (90%) of the total assets of
the Parent Borrower and its Subsidiaries.
"Single Employer Plan" means a Plan maintained by the Parent Borrower
or any member of the Controlled Group for employees of the Parent Borrower or
any member of the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
written satisfaction of the Required Lenders.
-15-
23
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Parent Borrower.
"Subsidiary Borrower" means Republic Holding Corporation, a Nevada
corporation, and its successors and assigns.
"Substantial Portion" means, with respect to the Property of the Parent
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Parent Borrower and its Subsidiaries as would be
shown in the consolidated financial statements of the Parent Borrower and its
Subsidiaries as at the beginning of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more than
10% of the consolidated net sales or of the Consolidated EBITDA of the Parent
Borrower and its Subsidiaries as reflected in the financial statements referred
to in clause (i) above.
"Syndication Agent" means Bank of America, N.A., in its capacity as
syndication agent, and not in its individual capacity as a Lender.
"Synthetic Lease" means a lease (i) that is treated as an operating
lease under Agreement Accounting Principles and (ii) (a) in respect of which the
leased asset is treated as owned by the lessee for purposes of the Code and/or
(b) that is treated as a loan to the lessee for commercial law or insolvency law
purposes.
"Swing Line Advance" means any Advance under the Swing Line
Subfacility.
"Swing Line Subfacility" means a subfacility under the Revolving Credit
Facility described in Section 2.21.
"Target" means collectively, Republic Gypsum Operating LLC, a Delaware
limited liability company, Republic Gypsum Holding LLC, a Delaware limited
liability company, Republic Paperboard Company LLC, a Delaware limited liability
company, and LaPorte Minerals LLC, a Delaware limited liability company, and
their Subsidiaries and successors and assigns.
"Target Senior Subordinated Notes" means those certain 9.5% Senior
Subordinated Notes in the aggregate principal amount of $100,000,000 executed by
the Republic Group Incorporated and payable to the order of certain Persons
named therein, as assumed by the Subsidiary Borrower pursuant to the
supplemental indenture, dated as of November 10, 2000, by and between UMB Bank
N.A., as Trustee, and the Subsidiary Borrower.
-16-
24
"Taxes" means any and all present or future governmental taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and all
liabilities with respect to the foregoing, but excluding Excluded Taxes and
Other Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to (i) make Loans (other than
Swing Line Advances) to the Parent Borrower, (ii) participate in Swing Line
Advances, (iii) participate in Facility LCs issued upon the request of the
Parent Borrower, and (iv) make Loans to the Borrowers under the Revolving
Subfacility, provided that, after giving effect to the making of each such Loan
(including the Swing Line Advances) and the issuance of each such Facility LC,
such Lender's Outstanding Credit Exposure shall not exceed its Commitment.
Subject to the terms of this Agreement, the Parent Borrower may borrow, repay
and reborrow at any time prior to the Facility Termination Date. The Commitments
to extend credit hereunder shall expire on the Facility Termination Date. The LC
Issuer will issue Facility LCs hereunder on the terms and conditions set forth
in Section 2.19. The Administrative Agent will make
-17-
25
Swing Line Advances hereunder on the terms and conditions set forth in Section
2.21. Loans under the Revolving Subfacility will be made on the terms and
conditions set forth in Section 2.22.
2.2. Required Payments; Termination. The Aggregate Outstanding Credit
Exposure and all other unpaid Obligations shall be paid in full by the Parent
Borrower or, with respect to the Revolving Subfacility only, the Subsidiary
Borrower, on the Facility Termination Date.
2.3. Ratable Loans. Each Advance under the Revolving Credit Facility
shall consist of Loans made from the several Lenders ratably according to their
Pro Rata Shares.
2.4. Types of Advances. The Advances under the Revolving Credit
Facility may be Floating Rate Advances or Eurodollar Advances, or a combination
thereof, selected by the Parent Borrower or, with respect to the Revolving
Subfacility only, the Subsidiary Borrower, in accordance with Sections 2.8 and
2.9.
2.5. Commitment Fee; Reductions in Aggregate Commitment. The Parent
Borrower agrees to pay to the Administrative Agent for the account of each
Lender according to its Pro Rata Share a commitment fee at a per annum rate
equal to the Applicable Fee Rate on the average daily Available Aggregate
Commitment from the date hereof to and including the Facility Termination Date,
payable on each Payment Date hereafter and on the Facility Termination Date. The
Parent Borrower or, with respect to the Revolving Subfacility only, the
Subsidiary Borrower, may permanently reduce the Aggregate Commitment in whole,
or in part ratably among the Lenders in integral multiples of $5,000,000, upon
at least five Business Days' written notice to the Administrative Agent, which
notice shall specify the amount of any such reduction; provided, however, that
the amount of the Aggregate Commitment may not be reduced below the Aggregate
Outstanding Credit Exposure. All accrued commitment fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make
Credit Extensions hereunder.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance shall be
in the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$1,000,000 (and in multiples of $100,000 if in excess thereof); provided,
however, that any Floating Rate Advance may be in the amount of the Available
Aggregate Commitment.
2.7. Optional Principal Payments. The Parent Borrower or, with respect
to the Revolving Subfacility only, the Subsidiary Borrower, may from time to
time pay, without penalty or premium, all outstanding Floating Rate Advances,
or, in a minimum aggregate amount of $1,000,000 or any integral multiple of
$100,000 in excess thereof, any portion of the outstanding Floating Rate
Advances upon two Business Days' prior notice to the Administrative Agent. The
Parent Borrower or, with respect to the Revolving Subfacility only, the
Subsidiary Borrower may from time to time pay, subject to the payment of any
funding indemnification amounts required by Section 3.4 but without penalty or
premium, all outstanding Eurodollar Advances, or, in a minimum aggregate
-18-
26
amount of $1,000,000 or any integral multiple of $100,000 in excess thereof, any
portion of the outstanding Eurodollar Advances upon three Business Days' prior
notice to the Administrative Agent.
2.8. Method of Selecting Types and Interest Periods for New Advances.
Except with respect to Swing Line Advances, the Parent Borrower or, with respect
to the Revolving Subfacility only, the Subsidiary Borrower, shall select the
Type of Advance and, in the case of each Eurodollar Advance, the Interest Period
applicable thereto from time to time. The Parent Borrower or, with respect to
the Revolving Subfacility only, the Subsidiary Borrower, shall give the
Administrative Agent irrevocable notice (a "Borrowing Notice") not later than
10:00 a.m. (Dallas time) at least one Business Day before the Borrowing Date of
each Floating Rate Advance and three Business Days before the Borrowing Date for
each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than noon (Dallas time) on each Borrowing Date, each Lender shall make
available its Loan or Loans in funds immediately available in Dallas to the
Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the Lenders available
to the Parent Borrower or, with respect to the Revolving Subfacility only, the
Subsidiary Borrower, at the Administrative Agent's aforesaid address.
Notwithstanding anything to the contrary contained herein, no Eurodollar
Advances shall be made until the earlier of the following has occurred: (a) the
Administrative Agent has determined in its reasonable discretion that
syndication of the Loans has been completed and (b) ninety (90) days after the
date hereof.
2.9. Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.9 or are repaid in accordance with Section 2.7. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with Section 2.7 or (y) the Parent Borrower or, with
respect to the Revolving Subfacility only, the Subsidiary Borrower, shall have
given the Administrative Agent a Conversion/Continuation Notice (as defined
below) requesting that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of Section 2.6, the Parent Borrower or, with
respect to the Revolving Subfacility only, the Subsidiary Borrower, may elect
from time to time to convert all or any part of a Floating Rate Advance (other
than Swing Line Advances) into a Eurodollar Advance. The Parent Borrower or,
with respect to the Revolving Subfacility only, the Subsidiary Borrower, shall
give the Administrative Agent irrevocable
-19-
27
notice (a "Conversion/Continuation Notice") of each conversion of a Floating
Rate Advance into a Eurodollar Advance or continuation of a Eurodollar Advance
not later than 10:00 a.m. (Dallas time) at least three Business Days prior to
the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued, and
(iii) the amount of such Advance which is to be converted into
or continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9 hereof, at a rate per annum equal to the lesser of (a) the
Maximum Rate, or (b) the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate Advance
will take effect simultaneously with each change in the Alternate Base Rate. If
at any time the Floating Rate shall exceed the Maximum Rate, thereby causing the
interest accruing on an Advance to be limited to the Maximum Rate, then any
subsequent reduction in the Floating Rate for such Advance shall not reduce the
rate of interest on such Advance below the Maximum Rate until the aggregate
amount of interest accrued on such Advance equals the aggregate amount of
interest which would have accrued on such Advance if the Floating Rate had at
all times been in effect. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Parent Borrower's or, with
respect to the Revolving Subfacility only, the Subsidiary Borrower's, selections
under Sections 2.8 and 2.9 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrowers, declare that no Advance may be made as, converted into or continued
as a Eurodollar Advance. During the continuance of a Default the Required
Lenders may, at their option, by notice to the Borrowers, declare that (i) each
Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period (but
calculated as if the highest Applicable Margin was then in effect) plus 2% per
annum, (ii) each Floating Rate Advance shall bear interest at a rate per annum
equal to the Floating Rate in effect from time to time (but calculated as if the
highest Applicable Margin was then in effect) plus 2% per annum and (iii) the LC
Fee shall be calculated as if the highest Applicable
-20-
28
Margin was then in effect and increased by 2% per annum, provided that, during
the continuance of a Default under Section 7.6 or 7.7, the interest rates set
forth in clauses (i) and (ii) above and the increase in the LC Fee set forth in
clause (iii) above shall be applicable to all Credit Extensions without any
election or action on the part of the Administrative Agent or any Lender,
subject in all events to the limitations of the Maximum Rate.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other Lending Installation
of the Administrative Agent specified in writing by the Administrative Agent to
the Borrowers, by noon (local time) on the date when due and shall (except in
the case of Reimbursement Obligations for which the LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder) be
applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type
of funds that the Administrative Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a notice
received by the Administrative Agent from such Lender. The Administrative Agent
is hereby authorized to charge the account of the Parent Borrower and, with
respect to the Revolving Subfacility only, the Subsidiary Borrower, maintained
with Bank One for each payment of principal, interest, Reimbursement Obligations
and fees as it becomes due hereunder. Each reference to the Administrative Agent
in this Section 2.12 shall also be deemed to refer, and shall apply equally, to
the LC Issuer, in the case of payments required to be made by the Parent
Borrower to the LC Issuer pursuant to Section 2.19.6.
2.13. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrowers to such Lender resulting from each Loan made by such Lender
from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in
which it will record (a) the amount of each Loan made hereunder, the
Type thereof and the Interest Period with respect thereto, (b) the
amount of any principal or interest due and payable or to become due
and payable from the Borrowers to each Lender hereunder, (c) the
original stated amount of each Facility LC and the amount of LC
Obligations outstanding at any time, and (d) the amount of any sum
received by the Administrative Agent hereunder from the Borrowers and
each Lender's share thereof.
(iii) The entries maintained in the accounts maintained
pursuant to paragraphs (i) and (ii) above shall be prima facie evidence
of the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Administrative Agent or any
Lender to
-21-
29
maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrowers to repay the Obligations in
accordance with their terms.
(iv) Any Lender may request that its Loans under the Revolving
Credit Facility be evidenced by a promissory note in substantially the
form of Exhibit E (a "Note"). In such event, the Parent Borrower and,
with respect to the Revolving Subfacility only, the Subsidiary
Borrower, shall prepare, execute and deliver to such Lender a Note
payable to the order of such Lender in a form supplied by the
Administrative Agent. Thereafter, the Loans evidenced by such Note and
interest thereon shall at all times (including after any assignment
pursuant to Section 12.3) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to
Section 12.3, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that
such Loans once again be evidenced as described in clauses (i) and (ii)
above.
2.14. Telephonic Notices. Each of the Parent Borrower and, with respect
to the Revolving Subfacility only, the Subsidiary Borrower, hereby authorizes
the Lenders and the Administrative Agent to extend, convert or continue
Advances, effect selections of Types of Advances and to transfer funds based on
telephonic notices made by any person or persons the Administrative Agent or any
Lender in good faith believes to be acting on behalf of the Borrowers, it being
understood that the foregoing authorization is specifically intended to allow
Borrowing Notices and Conversion/Continuation Notices to be given
telephonically. Each Borrower agrees to deliver promptly to the Administrative
Agent a written confirmation, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent and the Lenders shall govern absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof and at maturity.
Interest accrued on each Eurodollar Advance shall be payable on the last day of
its applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest, commitment fees and LC Fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of payment.
If any payment of principal of or interest on an Advance shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and
-22-
30
repayment notice received by it hereunder. Promptly after notice from the LC
Issuer, the Administrative Agent will notify each Lender of the contents of each
request for issuance of a Facility LC hereunder. The Administrative Agent will
notify each Lender of the interest rate applicable to each Eurodollar Advance
promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Administrative Agent and the Borrowers in
accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made by it or Facility LCs will be
issued by it and for whose account Loan payments or payments with respect to
Facility LCs are to be made.
2.18. Non-Receipt of Funds by the Administrative Agent. Unless the
Borrowers or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of either Borrower, a payment of principal, interest or fees to the
Administrative Agent for the account of the Lenders, that it does not intend to
make such payment, the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrowers, the interest rate applicable to the relevant Loan.
2.19. Facility LCs.
2.19.1. Issuance. Subject to the terms and conditions of this
Agreement, the LC Issuer agrees to keep outstanding on and after the
date hereof the standby letters of credit for the account of the Parent
Borrower which were issued by the LC Issuer and which are further
described on Schedule 3 (collectively, the "Existing Facility LCs").
Each Existing Facility LC shall constitute a Facility LC for all
purposes of this Agreement. For purposes hereof, the Existing Facility
LCs are deemed to be issued on the date hereof. Furthermore, the LC
Issuer hereby agrees, on the terms and conditions set forth in this
Agreement, to issue standby and commercial letters of credit (each, a
"Facility LC") and to renew, extend, increase, decrease or otherwise
modify each Facility
-23-
31
LC ("Modify," and each such action a "Modification"), from time to time
from and including the date of this Agreement and prior to the Facility
Termination Date upon the request of the Parent Borrower; provided that
immediately after each such Facility LC is issued or Modified, (i) the
aggregate amount of the outstanding LC Obligations shall not exceed
$15,000,000 and (ii) the Aggregate Outstanding Credit Exposure shall
not exceed the Aggregate Commitment. No Facility LC shall have an
expiry date later than the earlier of (x) the fifth Business Day prior
to the Facility Termination Date and (y) one year after its issuance.
2.19.2. Participations. Upon the issuance or Modification by
the LC Issuer of a Facility LC in accordance with this Section 2.19,
the LC Issuer shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably sold to each Lender,
and each Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from the LC
Issuer, a participation in such Facility LC (and each Modification
thereof) and the related LC Obligations in proportion to its Pro Rata
Share.
2.19.3. Notice. Subject to Section 2.19.1, the Parent Borrower
shall give the LC Issuer notice prior to 10:00 a.m. (Dallas time) at
least five Business Days prior to the proposed date of issuance or
Modification of each Facility LC, specifying the beneficiary, the
proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and
the nature of the transactions proposed to be supported thereby. Upon
receipt of such notice, the LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly
notify each Lender, of the contents thereof and of the amount of such
Lender's participation in such proposed Facility LC. The issuance or
Modification by the LC Issuer of any Facility LC shall, in addition to
the conditions precedent set forth in Article IV (the satisfaction of
which the LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be reasonably
satisfactory to the LC Issuer and that the Parent Borrower shall have
executed and delivered such application agreement and/or such other
instruments and agreements relating to such Facility LC as the LC
Issuer shall have reasonably requested (each, a "Facility LC
Application"). In the event of any conflict between the terms of this
Agreement and the terms of any Facility LC Application, the terms of
this Agreement shall control.
2.19.4. LC Fees. The Parent Borrower shall pay to the
Administrative Agent, for the account of the Lenders ratably in
accordance with their respective Pro Rata Shares, (i) with respect to
each standby Facility LC, a letter of credit fee at a per annum rate
equal to the Applicable Margin for Eurodollar Loans in effect from time
to time on the average daily undrawn stated amount under such standby
Facility LC, such fee to be payable in arrears on each Payment Date,
and (ii) with respect to each commercial Facility LC, a one-time letter
of credit fee in an amount equal to 0.125% of the initial stated amount
(or, with respect to a Modification of any such commercial Facility LC
which increases the stated amount thereof, such increase in the stated
amount) thereof, such fee to be payable on the date of such issuance or
increase (each such fee described in this sentence an "LC Fee"). The
Parent Borrower shall also pay to the LC Issuer for its own account (x)
at the time of issuance of each Facility LC, a fronting fee in an
amount to be
-24-
32
agreed upon between the LC Issuer and the Parent Borrower, and (y)
documentary and processing charges in connection with the issuance or
Modification of and draws under Facility LCs in accordance with the LC
Issuer's standard schedule for such charges as in effect from time to
time.
2.19.5. Administration; Reimbursement by Lenders. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer shall notify the Administrative Agent
and the Administrative Agent shall promptly notify the Parent Borrower
and each other Lender as to the amount to be paid by the LC Issuer as a
result of such demand and the proposed payment date (the "LC Payment
Date"). The responsibility of the LC Issuer to the Parent Borrower and
each Lender shall be only to determine that the documents (including
each demand for payment) delivered under each Facility LC in connection
with such presentment shall be in conformity in all material respects
with such Facility LC. The LC Issuer shall endeavor to exercise the
same care in the issuance and administration of the Facility LCs as it
does with respect to letters of credit in which no participations are
granted, it being understood that in the absence of any gross
negligence or willful misconduct by the LC Issuer, each Lender shall be
unconditionally and irrevocably liable without regard to the occurrence
of any Default or any condition precedent whatsoever, to reimburse the
LC Issuer on demand for (i) such Lender's Pro Rata Share of the amount
of each payment made by the LC Issuer under each Facility LC to the
extent such amount is not reimbursed by the Parent Borrower pursuant to
Section 2.19.6 below, plus (ii) interest on the foregoing amount to be
reimbursed by such Lender, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such demand is made
after 11:00 a.m. (Dallas time) on such date, from the next succeeding
Business Day) to the date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to the Federal
Funds Effective Rate for the first three days and, thereafter, at a
rate of interest equal to the rate applicable to Floating Rate
Advances.
2.19.6. Reimbursement by Parent Borrower. The Parent Borrower
shall be irrevocably and unconditionally obligated to reimburse the LC
Issuer on or before the applicable LC Payment Date for any amounts to
be paid by the LC Issuer upon any drawing under any Facility LC,
without presentment, demand, protest or other formalities of any kind;
provided that neither the Parent Borrower nor any Lender shall hereby
be precluded from asserting any claim for direct (but not
consequential) damages suffered by the Parent Borrower or such Lender
to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Issuer in determining whether
a request presented under any Facility LC issued by it complied with
the terms of such Facility LC or (ii) the LC Issuer's failure to pay
under any Facility LC issued by it after the presentation to it of a
request strictly complying with the terms and conditions of such
Facility LC. All such amounts paid by the LC Issuer and remaining
unpaid by the Parent Borrower shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on
or before the applicable LC Payment Date and (y) the sum of 2% plus the
rate applicable to Floating Rate Advances for such day if such day
falls after such LC Payment Date. The LC Issuer will pay to each Lender
ratably in accordance with its Pro Rata Share all amounts received by
it from the
-25-
33
Parent Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect of any Facility LC issued by the LC
Issuer, but only to the extent such Lender has made payment to the LC
Issuer in respect of such Facility LC pursuant to Section 2.19.5.
Subject to the terms and conditions of this Agreement (including
without limitation the submission of a Borrowing Notice in compliance
with Section 2.8 and the satisfaction of the applicable conditions
precedent set forth in Article IV), the Parent Borrower may request an
Advance hereunder for the purpose of satisfying any Reimbursement
Obligation.
2.19.7. Obligations Absolute. The Parent Borrower's
obligations under this Section 2.19 shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Parent Borrower may have
or have had against the LC Issuer, any Lender or any beneficiary of a
Facility LC. The Parent Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be responsible
for, and the Parent Borrower's Reimbursement Obligation in respect of
any Facility LC shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute between or among
the Parent Borrower, any of its Affiliates, the beneficiary of any
Facility LC or any financing institution or other party to whom any
Facility LC may be transferred or any claims or defenses whatsoever of
the Parent Borrower or of any of its Affiliates against the beneficiary
of any Facility LC or any such transferee. The LC Issuer shall not be
liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Facility LC. The Parent Borrower agrees that any
action taken or omitted by the LC Issuer or any Lender under or in
connection with each Facility LC and the related drafts and documents,
if done without gross negligence, bad faith or willful misconduct,
shall be binding upon the Parent Borrower and shall not put the LC
Issuer or any Lender under any liability to the Parent Borrower.
Nothing in this Section 2.19.7 is intended to limit the right of the
Parent Borrower to make a claim against the LC Issuer for damages as
contemplated by the proviso to the first sentence of Section 2.19.6.
2.19.8. Actions of LC Issuer. The LC Issuer shall be entitled
to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document reasonably believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the LC Issuer.
The LC Issuer shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first have received
such advice or concurrence of the Required Lenders as it reasonably
deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take
any such action. Notwithstanding any other provision of this Section
2.19, the LC Issuer shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement in accordance with a
request of the Required Lenders, and such request and any action taken
or failure to act
-26-
34
pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
2.19.9. Indemnification. The Parent Borrower hereby agrees to
indemnify and hold harmless each Lender, the LC Issuer and the
Administrative Agent, and their respective directors, officers, agents
and employees from and against any and all claims and damages, losses,
liabilities, costs or expenses (including reasonable attorneys' fees
and disbursements) which such Lender, the LC Issuer or the
Administrative Agent may incur (or which may be claimed against such
Lender, the LC Issuer or the Administrative Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any
Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the LC Issuer may incur by reason
of or in connection with (i) the failure of any other Lender to fulfill
or comply with its obligations to the LC Issuer hereunder (but nothing
herein contained shall affect any rights the Parent Borrower may have
against any defaulting Lender) or (ii) by reason of or on account of
the LC Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of
law of the named Beneficiary, but which Facility LC does not require
that any drawing by any such successor Beneficiary be accompanied by a
copy of a legal document, satisfactory to the LC Issuer, evidencing the
appointment of such successor Beneficiary; provided that the Parent
Borrower shall not be required to indemnify any Lender, the LC Issuer
or the Administrative Agent or any director, officer, agent or employee
thereof for any claims, damages, losses, liabilities, costs or expenses
to the extent, but only to the extent, caused by (x) the willful
misconduct, bad faith or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC complied
with the terms of such Facility LC or (y) the LC Issuer's failure to
pay under any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC.
Nothing in this Section 2.19.9 is intended to limit the obligations of
the Parent Borrower under any other provision of this Agreement.
2.19.10. Lenders' Indemnification. Each Lender shall, ratably
in accordance with its Pro Rata Share, indemnify the LC Issuer, its
Affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Parent Borrower) against
any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such
as result from such indemnitees' gross negligence or willful misconduct
or the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and
conditions of the Facility LC) that such indemnitees may suffer or
incur in connection with this Section 2.19 or any action taken or
omitted by such indemnitees hereunder.
2.19.11. Facility LC Collateral Account. The Parent Borrower
agrees that it will, after the occurrence of a Default and upon the
request of the Administrative Agent or the Required Lenders and until
the final expiration date of any Facility LC and thereafter as long as
any amount is payable to the LC Issuer or the Lenders in respect of any
Facility LC, maintain a special
-27-
35
collateral account pursuant to arrangements satisfactory to the
Administrative Agent (the "Facility LC Collateral Account") at the
Administrative Agent's office at the address specified pursuant to
Article XIII, in the name of such Parent Borrower but under the sole
dominion and control of the Administrative Agent, for the benefit of
the Lenders and in which such Parent Borrower shall have no interest
other than as set forth in Section 8.1. The Parent Borrower hereby
pledges, assigns and grants to the Administrative Agent, on behalf of
and for the ratable benefit of the Lenders and the LC Issuer, a
security interest in all of the Parent Borrower's right, title and
interest in and to all funds which may from time to time be on deposit
in the Facility LC Collateral Account to secure the prompt and complete
payment and performance of the Obligations. The Administrative Agent
will invest any funds on deposit from time to time in the Facility LC
Collateral Account in certificates of deposit of Bank One having a
maturity not exceeding 30 days. Nothing in this Section 2.19.11 shall
either obligate the Administrative Agent to require the Parent Borrower
to deposit any funds in the Facility LC Collateral Account or limit the
right of the Administrative Agent to release any funds held in the
Facility LC Collateral Account in each case other than as required by
Section 8.1.
2.19.12. Rights as a Lender. In its capacity as a Lender, the
LC Issuer shall have the same rights and obligations as any other
Lender.
2.20. Replacement of Lender. If either Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrowers may elect, if such amounts
continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrowers
and the Administrative Agent shall agree, as of such date, to purchase for cash
the Credit Extensions and other Obligations due to the Affected Lender pursuant
to an assignment substantially in the form of Exhibit C and to become a Lender
for all purposes under this Agreement and to assume all obligations of the
Affected Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and (ii) the Borrowers
shall pay to such Affected Lender in same day funds on the day of such
replacement (A) all interest, fees and other amounts then accrued but unpaid to
such Affected Lender by the Borrowers hereunder to and including the date of
termination, including without limitation payments due to such Affected Lender
under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any, equal to the payment
which would have been due to such Lender on the day of such replacement under
Section 3.4 had the Credit Extensions of such Affected Lender been prepaid on
such date rather than sold to the replacement Lender.
2.21. Swing Line Subfacility.
2.21.1. Conditions. For the convenience of the parties,
Administrative Agent, solely for its own account, may make any
requested Advance under the Revolving Credit Facility (which request
must be made before 1:00 p.m. (Dallas time) on the Business Day the
Advance is to be
-28-
36
made and may be telephonic if confirmed in writing within two Business
Days) in the minimum amount of $100,000 (or a greater integral multiple
of $100,000) directly to Parent Borrower as a Swing Line Advance
without requiring each other Lender to fund its Pro Rata Share thereof
on such Business Day. Swing Line Advances are subject to the following
conditions:
(i) Each Swing Line Advance must occur on a Business Day
before the Facility Termination Date;
(ii) The aggregate principal outstanding of all Swing Line
Advances may not exceed $15,000,000; the aggregate principal
outstanding of all Swing Line Advances, all other Advances under the
Revolving Credit Facility, and all LC Obligations may not exceed the
Aggregate Commitment under the Revolving Credit Facility; and no Swing
Line Advance shall be made which would cause the aggregate principal
outstanding of all Loans (including Swing Line Advances) made by the
Administrative Agent under the Revolving Credit Facility to exceed the
Administrative Agent's Commitment under the Revolving Credit Facility;
(iii) Each Swing Line Advance shall be paid in full by the
Parent Borrower on the Business Day immediately succeeding the date of
such Swing Line Advance by the funding of an Advance under the
Revolving Credit Facility and in any event on the Facility Termination
Date; and
(iv) Each Swing Line Advance shall be a Floating Rate Advance.
2.21.2. Lenders' Funding of Swing Line Advances as Advances
Under Revolving Credit Facility. The Administrative Agent shall give to
the Lenders notice of each Swing Line Advance not later than 3:00 p.m.
(Dallas time) on the date of such Swing Line Advance, which notice
shall, on behalf of the Parent Borrower (and for such purpose the
Parent Borrower hereby irrevocably directs the Administrative Agent to
act on its behalf), request each Lender to make, and each Lender hereby
agrees to make, an Advance in an amount equal to such Lender's Pro Rata
Share of the aggregate amount of the Swing Line Advances (the "Refunded
Swing Line Advances") outstanding on the date of such notice, to repay
the Administrative Agent. Each Lender shall make the amount of such
Advance available to the Administrative Agent in immediately available
funds, not later than noon (Dallas time) one Business Day after the
date of such notice. The proceeds of such Advance shall be immediately
made available to the Administrative Agent for application by the
Administrative Agent to the repayment of the Refunded Swing Line
Advances. The Parent Borrower irrevocably authorizes the Administrative
Agent to charge the Parent Borrower's accounts with the Administrative
Agent in order to immediately pay the amount of such Refunded Swing
Line Advances to the extent amounts received from the Lenders are not
sufficient to repay in full such Refunded Swing Line Advances (with
notice of such charge being provided to the Parent Borrower, provided
that the failure to give such notice shall not affect the validity of
such charge). All such Refunded Swing Line Advances shall be subject to
all provisions of this Agreement concerning Advances under the
Revolving Credit Facility. If prior to the time an Advance would
otherwise have been made pursuant to this section, Advances may not be
made
-29-
37
as contemplated by this section, each Lender shall irrevocably and
unconditionally purchase and receive from Administrative Agent a
ratable participation in such Swing Line Advance and shall make
available to Administrative Agent in immediately available funds its
Pro Rata Share of such unpaid amount, together with interest from the
date when its payment was due to, but not including, the date of
payment. If a Lender does not promptly pay its amount upon
Administrative Agent's demand, and until such Lender makes the required
payment, Administrative Agent is deemed to continue to have outstanding
a Swing Line Advance in the amount of such Lender's unpaid obligation.
Parent Borrower shall make each payment of all or any part of any Swing
Line Advance to Administrative Agent for the ratable benefit of
Administrative Agent and those Lenders who have funded their
participations in Swing Line Advances under this Section (but all
interest accruing on Swing Line Advances before the funding date of any
Advance under the Revolving Credit Facility to repay such Swing Line
Advance or any participation is payable solely to Administrative Agent
for its own account).
2.22. Revolving Subfacility.
(a) From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender
severally agrees, on the terms and conditions set
forth in this Agreement, to make Loans to the
Borrowers from time to time for the purposes
hereinafter set forth; provided that the aggregate
principal amount of the Loans outstanding under this
Section 2.22 shall not at any time exceed $10,000,000
(as such aggregate amount may be increased or reduced
from time to time, the "Revolving Subfacility
Limit"), and provided further that after giving
effect to the making of each such Loan, such Lender's
Outstanding Credit Exposure shall not exceed its
Commitment. Subject to the terms of this Agreement,
the Borrowers may borrow, repay, and reborrow at any
time prior to the Facility Termination Date amounts
under the Revolving Subfacility. The Borrowers hereby
designate Loans under the Revolving Subfacility Limit
as Designated Senior Debt under the Indenture.
(b) Loans under this Section 2.22 may consist of Floating
Rate Advances or Eurodollar Advances, or a
combination thereof, as a Borrower may request, and
may be repaid and reborrowed in accordance with the
provisions hereof. The principal amount of all Loans
under the Revolving Subfacility shall be paid in full
by the Borrowers on the Facility Termination Date.
The obligation to repay the Loans under the Revolving
Subfacility shall be joint and several obligations of
the Borrowers.
2.23. Prepayments from Sale of Assets. Concurrently with the receipt of
Net Cash Proceeds from the sale or disposition by the Parent Borrower or any
Subsidiary of any assets at any time which are permitted to be sold or disposed
of pursuant to Section 6.13 of this Agreement (other than (i) the sale of
inventory in the ordinary course of business, (ii) when no Default exists, the
sale of accounts or notes receivable described in Section 6.13(iii), and (iii)
when no Default exists, other sales or dispositions which
-30-
38
yield Net Cash Proceeds in an amount not to exceed $5,000,000 in the aggregate
during the term of this Agreement), the Parent Borrower shall prepay or cause to
be prepaid the Advances in a principal amount equal to 100% of such Net Cash
Proceeds. Notwithstanding anything to the contrary contained herein, any
prepayment required by this Section 2.23 to be applied to Eurodollar Loans may
be paid by the Parent Borrower into a segregated interest bearing account of
Parent Borrower designated by the Administrative Agent for application to the
Loans upon the last day of an Interest Period applicable thereto.
2.24. Joint and Several Liability of the Borrowers.
(a) Each of the Borrowers is accepting joint and several
liability hereunder with respect to the Joint and Several Obligations
in consideration of the financial accommodation to be provided by the
Lenders under Section 2.22 of this Agreement, for the mutual benefit,
directly and indirectly, of each of the Borrowers and in consideration
of the undertakings of each of the Borrowers to accept joint and
several liability for the Joint and Several Obligations of each of them
under Section 2.22.
(b) Each of the Borrowers jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Borrower with respect to the payment and performance of all of the
Joint and Several Obligations arising under this Agreement and the
other Loan Documents, it being the intention of the parties hereto that
all the Joint and Several Obligations shall be the joint and several
obligations of each of the Borrowers without preferences or distinction
among them.
(c) If and to the extent that either of the Borrowers shall
fail to make any payment with respect to any of the Joint and Several
Obligations hereunder as and when due or to perform any of such Joint
and Several Obligations in accordance with the terms thereof, then in
each such event, the other Borrower will make such payment with respect
to, or perform, such Joint and Several Obligations.
(d) The obligations of each Borrower under the provisions of
this Section 2.24 constitute full recourse obligations of such
Borrower, enforceable against it to the full extent of its properties
and assets, irrespective of the validity, regularity or enforceability
of this Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, each
Borrower hereby waives notice of acceptance of its joint and several
liability, notice of occurrence of any Default or Unmatured Default
(except to the extent notice is expressly required to be given pursuant
to the terms of this Agreement), or of any demand for any payment under
this Agreement, notice of any action at any time taken or omitted by
the Administrative Agent or the Lenders under or in respect of any of
the Joint and Several Obligations hereunder, any requirement of
diligence and, generally, all demands, notices and other formalities of
every kind in connection with this Agreement. Each Borrower hereby
assents to, and waives notice of, any extension or postponement of the
time for the payment of any of the Joint and Several Obligations
hereunder, the acceptance of any partial
-31-
39
payment thereon, any waiver, consent or other action or acquiescence by
the Administrative Agent or the Lenders at any time or times in respect
of any default by a Borrower in the performance or satisfaction of any
term, covenant, condition or provision of this Agreement or any other
Loan Document, any and all other indulgences whatsoever by the
Administrative Agent or the Lenders in respect of any of the Joint and
Several Obligations hereunder, and the taking, addition, substitution
or release, in whole or in part, at any time or times, of any security
for any of such Joint and Several Obligations or the addition,
substitution or release, in whole or in part, of either Borrower.
Without limiting the generality of the foregoing, each Borrower assents
to any other action or delay in acting or any failure to act on the
part of the Administrative Agent or the Lenders, including, without
limitation, any failure strictly or diligently to assert any right or
to pursue any remedy or to comply fully with applicable laws or
regulations thereunder which might, but for the provisions of this
Section 2.24, afford grounds for terminating, discharging or relieving
such Borrower, in whole or in part, from any of its obligations under
this Section 2.24, it being the intention of each Borrower that, so
long as any of the Joint and Several Obligations remain unsatisfied,
the obligations of such Borrower under this Section 2.24 shall not be
discharged except by performance and then only to the extent of such
performance. The obligations of each Borrower under this Section 2.24
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to any reconstruction or similar proceeding
with respect to a Borrower or any Lender. The joint and several
liability of the Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, membership, constitution or place
of formation of a Borrower or any Lender.
(f) The provisions of this Section 2.24 are made for the
benefit of the Administrative Agent and the Lenders and their
respective successors and assigns, and may be enforced by any such
Person from time to time against either of the Borrowers as often as
occasion therefor may arise and without requirement on the part of any
Lender first to marshal any of its claims or to exercise any of its
rights against the other Borrower or to exhaust any remedies available
to it against the other Borrower or to resort to any other source or
means of obtaining payment of any of the Joint and Several Obligations
or to elect any other remedy. The provisions of this Section 2.24 shall
remain in effect until all the Joint and Several Obligations hereunder
shall have been paid in full or otherwise fully satisfied. If at any
time, any payment, or any part thereof, made in respect of any of the
Joint and Several Obligations, is rescinded or must otherwise be
restored or returned by the Lenders upon the insolvency, bankruptcy or
reorganization of either of the Borrowers, or otherwise, the provisions
of this Section 2.24 will forthwith be reinstated and in effect as
though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained
herein or in any other of the Loan Documents, the obligations of
Subsidiary Borrower hereunder shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations
hereunder subject to avoidance under Section 548 of the Bankruptcy Code
or any comparable provisions of any applicable state law.
-32-
40
2.25. Prepayments from Sales of Capital Stock. Concurrently with the
receipt of Net Cash Proceeds from the sale or disposition by Parent Borrower to
any Person of any common stock, preferred stock, warrant or other equity
interests of Parent Borrower, the Parent Borrower shall prepay Advances in a
principal amount equal to 100% of such Net Cash Proceeds; provided however, the
Parent Borrower is not required to make a prepayment under this Section 2.25 if
and to the extent that the Parent Borrower (a) issues common stock, preferred
stock, warrant or other equity interests pursuant to stock options and provides
other stock based benefit awards to the directors, officers or employees of the
Parent Borrower, its Subsidiaries or Affiliates or (b) uses such Net Cash
Proceeds solely to fund a Permitted Acquisition, so long as in each case no
Default has occurred and is continuing immediately before and immediately after
such issuance or payment. Notwithstanding anything to the contrary contained
herein, any prepayment required by this Section 2.25 to be applied to Eurodollar
Loans may be paid by the Parent Borrower into a segregated interest bearing
account of the Parent Borrower designated by the Administrative Agent for
application to the Loans upon the last day of an Interest Period applicable
thereto.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation
or the LC Issuer to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any Lender or
the LC Issuer in respect of its Eurodollar Loans, Facility LCs or
participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation or the
LC Issuer (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
or the LC Issuer of making, funding or maintaining its Eurodollar
Loans, or of issuing or participating in Facility LCs, or reduces any
amount receivable by any Lender or any applicable Lending Installation
or the LC Issuer in connection with its Eurodollar Loans, Facility LCs
or participations therein, or requires any Lender or any
-33-
41
applicable Lending Installation or the LC Issuer to make any payment
calculated by reference to the amount of Eurodollar Loans, Facility LCs
or participations therein held or interest or LC Fees received by it,
by an amount deemed material by such Lender or the LC Issuer as the
case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Commitment, Facility LCs or participations therein, then,
within 15 days of demand by such Lender or the LC Issuer, as the case may be,
the Borrowers shall pay such Lender or the LC Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the LC Issuer, as
the case may be, for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender or the LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer, or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrowers shall pay such Lender or the LC Issuer the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender or the LC Issuer determines is
attributable to this Agreement, its Outstanding Credit Exposure or its
Commitment to make Loans and issue or participate in Facility LCs, as the case
may be, hereunder (after taking into account such Lender's or the LC Issuer's
policies as to capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines, or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Administrative Agent shall suspend the availability of Eurodollar Advances
and require any affected Eurodollar Advances to be repaid or converted to
Floating Rate Advances, subject to the payment of any funding indemnification
amounts required by Section 3.4.
-34-
42
3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrowers for any reason other
than default by the Lenders, the Borrowers will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance.
3.5. Taxes.
(i) All payments by the Borrowers to or for the account of any
Lender, the LC Issuer or the Administrative Agent hereunder or under
any Note or Facility LC Application shall be made free and clear of and
without deduction for any and all Taxes. If the Borrowers shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender, the LC Issuer or the Administrative
Agent, (a) 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 3.5) such Lender, the LC
Issuer or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
been made, (b) the Borrowers shall make such deductions, (c) the
Borrowers shall pay the full amount deducted to the relevant authority
in accordance with applicable law and (d) the Borrowers shall furnish
to the Administrative Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrowers hereby agree to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or under any Note or Facility LC Application or from the
execution or delivery of, or otherwise with respect to, this Agreement
or any Note or Facility LC Application ("Other Taxes").
(iii) Each Borrower hereby agrees to indemnify the
Administrative Agent, the LC Issuer and each Lender for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Administrative Agent, the LC Issuer or such Lender and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the
Administrative Agent, the LC Issuer or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after the
date of this Agreement, (i) deliver to each of the Borrowers and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to each of the Borrowers and the
Administrative Agent a United States Internal
-35-
43
Revenue Form W-8 or W-9, as the case may be, and certify that it is
entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the
Borrowers and the Administrative Agent (x) renewals or additional
copies of such form (or any successor form) on or before the date that
such form expires or becomes obsolete, and (y) after the occurrence of
any event requiring a change in the most recent forms so delivered by
it, such additional forms or amendments thereto as may be reasonably
requested by the Borrowers or the Administrative Agent. All forms or
amendments described in the preceding sentence shall certify that such
Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such
Lender advises the Borrowers and the Administrative Agent that it is
not capable of receiving payments without any deduction or withholding
of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed
to provide the Borrowers with an appropriate form pursuant to clause
(iv), above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the date
on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States; provided that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its
failure to deliver a form required under clause (iv) above, the
Borrowers shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such
Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrowers (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 as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered
or properly completed, because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such
Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax,
withholding therefor, or otherwise, including penalties and interest,
and including taxes imposed by any jurisdiction on amounts payable to
the Administrative Agent under this
-36-
44
subsection, together with all costs and expenses related thereto
(including attorneys fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the
Administrative Agent). The obligations of the Lenders under this
Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrowers to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the reasonable judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrowers (with a
copy to the Administrative Agent) as to the amount due, if any, under Section
3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on the Borrowers in the absence of manifest
error. Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable within fifteen (15) days after receipt by the Parent Borrower of such
written statement. The obligations of the Borrowers under Sections 3.1, 3.2, 3.4
and 3.5 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be required to make the
initial Credit Extension hereunder unless (a) the Borrowers have furnished to
the Administrative Agent with sufficient copies for the Lenders or (b) the
following shall have occurred, as applicable:
(i) Copies of the articles or certificate of incorporation of
each Borrower, together with all amendments, and certificates of
existence and good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation.
(ii) Copies of the articles or certificate of incorporation or
other charter documents of each Guarantor, together with all
amendments, and certificates of existence and good standing, each
certified by the appropriate governmental officer in its jurisdiction
of organization.
(iii) Copies, certified by the Secretary or Assistant
Secretary of each Borrower, of its by-laws and of its Board of
Directors' resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which such Borrower
is a party.
-37-
45
(iv) Copies certified by the Secretary or Assistant Secretary
of each Guarantor, of its bylaws or other organization agreement, and
of its Board of Directors resolutions or of resolutions or actions of
any other body authorizing the execution of the Loan Documents to which
such Guarantor is a party.
(v) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each Borrower, which shall identify by name and
title and bear the signatures of the Authorized Officers and any other
officers of such Borrower authorized to sign the Loan Documents to
which such Borrower is a party, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until
informed of any change in writing by such Borrower.
(vi) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each Guarantor, which shall identify by name and
title and bear the signatures of the Authorized Officers and any other
officers of such Guarantor authorized to sign the Loan Documents to
which such Guarantor is a party, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until
informed of any change in writing by such Guarantor.
(vii) A certificate, signed by the chief financial officer of
each Borrower, stating that on the initial Credit Extension Date no
Default or Unmatured Default has occurred and is continuing.
(viii) A written opinion of the Borrowers' and the Guarantors'
counsel, addressed to the Lenders in substantially the form of Exhibit
A.
(ix) Any Notes requested by a Lender pursuant to Section 2.13
payable to the order of each such requesting Lender.
(x) Written money transfer instructions, in substantially the
form of Exhibit D, addressed to the Administrative Agent and signed by
an Authorized Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested.
(xi) A Guaranty duly executed by the Guarantors.
(xii) The Administrative Agent shall have determined that (i)
there has not been, since August 9, 2000, any material adverse change
in primary or secondary loan syndication markets or in capital markets
generally that would impair syndication of the Loans hereunder and (ii)
the Parent Borrower has fully cooperated with the Administrative
Agent's syndication efforts including, without limitation, by providing
the Administrative Agent with information regarding the Parent
Borrower's operations and prospects and such other information as the
Administrative Agent deems necessary to successfully syndicate the
Loans hereunder.
(xiii) If the initial Credit Extension will be the issuance of
a Facility LC, a properly completed Facility LC Application.
-38-
46
(xiv) Copies, certified by an Authorized Officer of the Parent
Borrower, of the November 2000 Acquisition Agreement and all related
documents, instruments and agreements, together with evidence that all
conditions precedent to the consummation of the transactions
contemplated thereby, other than the making of the initial Credit
Extension hereunder, shall have been satisfied or waived, and that such
transaction shall be consummated simultaneous with the making of the
initial Credit Extension hereunder.
(xv) Copies, certified by an Authorized Officer of the Parent
Borrower, of that certain Agreement and Plan of Merger ("Premier
Acquisition Agreement") dated as of August 11, 2000 among Premier
Construction Products Statutory Trust, Premier Construction Products
Acquisition Corp. and Republic Group Incorporated (together with its
successors, "RGI") and all related documents, instruments and
agreements, together with evidence that all conditions precedent to the
consummation of the transactions contemplated thereby shall have been
satisfied or waived, and that such transaction shall be consummated
prior to or simultaneous with the making of the initial Credit
Extension hereunder.
(xvi) A copy of the written opinion of RGI's counsel,
delivered in connection with the Premier Acquisition Agreement, along
with a letter addressed to the Lenders from RGI's counsel authorizing
the reliance by the Lenders on such opinion, such opinion to be
satisfactory to the Administrative Agent and addressing matters related
to the Premier Acquisition Agreement and transactions contemplated
thereby as may be requested by the Administrative Agent.
(xvii) A copy of the written opinion of Target's counsel
delivered in connection with the November 2000 Acquisition, along with
a letter addressed to the Lenders from Target's counsel authorizing the
reliance by the Lenders on such opinion, such opinion to be
satisfactory to the Administrative Agent and addressing matters related
to the November 2000 Acquisition as may be requested by the
Administrative Agent.
(xviii) Evidence that all funded Indebtedness owed by the
Parent Borrower, its Subsidiaries and the Target, excluding the
Existing Facility LCs and the Target Senior Subordinated Notes but
including, without limitation, the Indebtedness evidenced by that
certain Credit Agreement dated as of April 18, 1994, among the Parent
Borrower, Bank One, NA (successor by merger to The First National Bank
of Chicago), as Agent, and the other lenders named therein, as the same
has been amended or modified from time to time, shall have been, or
will be simultaneously with the funding of the initial Credit
Extension, repaid in full.
(xix) Evidence that as of the date hereof, the Parent Borrower
has or has placed in escrow upon terms satisfactory to the
Administrative Agent at least $130,000,000 in cash available, which
funds shall be used as a portion of the purchase price for the November
2000 Acquisition.
(xx) Copies of (a) the pro forma opening consolidated
financial statements for the Parent Borrower giving effect to the
November 2000 Acquisition (b) projections updating
-39-
47
projections previously provided to the Lenders, and (c) such other
information reasonably requested by the Administrative Agent or the
Required Lenders, all in form and substance satisfactory to the
Administrative Agent and the Required Lenders.
(xxi) The corporate capital and ownership structure of the
Parent Borrower and its Subsidiaries shall be as described in Schedule
4. The Administrative Agent shall be satisfied with the management
structure, legal structure, voting control, liquidity and
capitalization of each Borrower as of the date of the initial Credit
Extension.
(xxii) The Administrative Agent shall have received a true,
correct, and complete copy of the Indenture governing the Target Senior
Subordinated Notes (the "Indenture"), all material documents executed
in connection therewith, and all amendments or supplements thereto,
certified by an officer of the Parent Borrower to be true and correct
and in full force and effect, together with a certificate of an officer
of the Parent Borrower that no default then exists thereunder or will
result from the transactions contemplated by this Agreement.
(xxiii) Such other documents as the Administrative Agent, any
Lender or their counsel may have reasonably requested.
4.2. Each Credit Extension. The Lenders shall not be required to make
any Credit Extension unless on the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V
are true and correct in all material respects as of such Credit
Extension Date except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct in all
material respects on and as of such earlier date.
(iii) All legal matters incident to the making of such Credit
Extension shall be reasonably satisfactory to the Lenders and their
counsel.
(iv) If the Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application shall have
been executed and delivered to the LC Issuer.
Each Borrowing Notice or request for issuance of a Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by the Borrowers that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied. Any Lender may require a duly completed compliance
certificate in substantially the form of Exhibit B as a condition to making a
Credit Extension.
-40-
48
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Lenders that:
5.1. Existence and Standing. Each of the Parent Borrower and its
Subsidiaries is a corporation, partnership (in the case of Subsidiaries only) or
limited liability company (in the case of Subsidiaries only) duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization is duly qualified to transact
business and is in good standing in each jurisdiction in which its business is
conducted except where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect.
5.2. Authorization and Validity. The Parent Borrower has the corporate
power and authority and legal right to execute and deliver the Loan Documents to
which it is a party and to perform its obligations thereunder. The execution and
delivery by the Parent Borrower of the Loan Documents to which it is a party and
the performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and the Loan Documents to which the Parent
Borrower is a party constitute legal, valid and binding obligations of the
Parent Borrower enforceable against the Parent Borrower in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or general
principles of equity.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Parent Borrower of the Loan Documents to which it is a party,
nor the consummation of the transactions therein contemplated, nor compliance
with the provisions thereof will violate (i) any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Parent Borrower or
any of its Subsidiaries other than violations which could not individually or in
the aggregate reasonably be expected to have a Material Adverse Effect or (ii)
the Parent Borrower's or any Subsidiary's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Parent Borrower or any of its Subsidiaries
is a party or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in, or require, the creation
or imposition of any Lien in, of or on the Property of the Parent Borrower or a
Subsidiary pursuant to the terms of any such indenture, instrument or agreement.
No order, consent, adjudication, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, or other action
in respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Parent Borrower or any of its
Subsidiaries, is required to be obtained by the Parent Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment and performance by
the Parent Borrower of the Obligations or the legality, validity, binding effect
or enforceability of any of the Loan Documents except for such orders, consents,
adjudications, approvals, licenses, authorizations or validations of, or
filings, recordings or registrations with, or exemptions by or other actions the
failure
-41-
49
to obtain or make could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
5.4. Financial Statements. The September 30, 2000 consolidated
financial statements of the Parent Borrower and its Subsidiaries heretofore
delivered to the Lenders were prepared in accordance with generally accepted
accounting principles in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of the Parent
Borrower and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended.
5.5. Material Adverse Change. Since June 30, 2000, there has been no
change in the business, Property, financial condition or results of operations
of the Parent Borrower and its Subsidiaries taken as a whole which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Parent Borrower and its Subsidiaries have filed all
United States federal tax returns and all other tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Parent Borrower or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with Agreement Accounting
Principles and as to which no Lien exists and except where failure to file or
pay could not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect. The latest period for which the Parent Borrower and its
Subsidiaries have been examined or for which the applicable statute of
limitations has expired is the fiscal year ended March 31, 1996. No tax liens
have been filed and no claims are being asserted with respect to any such taxes
which individually or in the aggregate have a Material Adverse Effect. The
charges, accruals and reserves on the books of the Parent Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
If any of its Subsidiaries is a limited liability company, each such limited
liability company qualifies for partnership tax treatment under United States
federal tax law.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Parent Borrower or any of its Subsidiaries which could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect or which
seeks to prevent, enjoin or delay the making of any Credit Extensions. Other
than any liabilities which could not individually or in the aggregate reasonably
be expected to have a Material Adverse Effect, the Parent Borrower has no
material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 1 contains an accurate list of all
Subsidiaries of the Parent Borrower as of the date of this Agreement, setting
forth their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Parent
Borrower or other Subsidiaries. All of the issued and outstanding shares of
capital stock or other ownership interests of such Subsidiaries have been (to
the extent such concepts are relevant with respect to such ownership interests)
duly authorized and issued and are fully paid and non-assessable.
-42-
50
5.9. ERISA. Neither the Parent Borrower nor any other member of the
Controlled Group has incurred in the aggregate Unfunded Liabilities of all
Single Employer Plans in an amount that could reasonably be expected to have a
Material Adverse Effect. Neither the Parent Borrower nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in the aggregate in an amount that
could reasonably be expected to have a Material Adverse Effect. Each Plan
complies in all material respects with all applicable requirements of law and
regulations, and no Reportable Event has occurred with respect to any Plan that
could reasonably be expected to have a Material Adverse Effect.
5.10. Accuracy of Information. No information, exhibit or report
furnished by the Parent Borrower or any of its Subsidiaries to the
Administrative Agent or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents contained any misstatement of material fact
or omitted to state a material fact necessary to make the statements contained
therein not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Parent Borrower
and its Subsidiaries which are subject to any limitation on sale, pledge, or
other restriction hereunder.
5.12. Material Agreements. Neither the Parent Borrower nor any
Subsidiary is a party to any agreement or instrument or subject to any charter
or other corporate restriction which could reasonably be expected to have a
Material Adverse Effect. Neither the Parent Borrower nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in (i) any agreement to which it is a party,
which default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness which
aggregates in excess of $2,500,000.
5.13. Compliance With Laws. The Parent Borrower and its Subsidiaries
have complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 2, on
the date of this Agreement, the Parent Borrower and its Subsidiaries will have
good title, free of all Liens other than those permitted by Section 6.15, to all
of the Property and assets reflected in the Parent Borrower's most recent
consolidated financial statements provided to the Administrative Agent as owned
by the Parent Borrower and its Subsidiaries.
5.15. Plan Assets; Prohibited Transactions. The Parent Borrower is not
an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Credit
-43-
51
Extensions hereunder gives rise to a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business,
the officers of the Parent Borrower consider the effect of Environmental Laws on
the business of the Parent Borrower and its Subsidiaries, in the course of which
they identify and evaluate potential risks and liabilities accruing to the
Parent Borrower due to Environmental Laws. On the basis of this consideration,
the Parent Borrower has concluded that Environmental Laws cannot reasonably be
expected to have a Material Adverse Effect. Neither the Parent Borrower nor any
Subsidiary has received any notice to the effect that its operations are not in
material compliance with any of the requirements of applicable Environmental
Laws or are the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Parent Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.18. Public Utility Holding Company Act. Neither the Parent Borrower
nor any Subsidiary is a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
5.19. Subordinated Indebtedness. The Obligations constitute senior
indebtedness which is entitled to the benefits of the subordination provisions
of all outstanding Subordinated Indebtedness.
5.20. Post-Retirement Benefits. The present value of the expected cost
of post-retirement medical and insurance benefits payable by the Parent Borrower
and its Subsidiaries to its employees and former employees, as estimated by the
Parent Borrower in accordance with procedures and assumptions reasonably
acceptable to the Required Lenders, does not exceed $2,500,000.
5.21. Solvency.
(i) Immediately after the consummation of the transactions to
occur on the date hereof and immediately following the making of each
Credit Extension, if any, made on the date hereof and after giving
effect to the application of the proceeds of such Credit Extension, (a)
the fair value of the assets of the Parent Borrower and its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed
the debts and liabilities, subordinated, contingent or otherwise, of
the Parent Borrower and its Subsidiaries on a consolidated basis; (b)
the present fair saleable value of the Property of the Parent Borrower
and its Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of the
Parent Borrower and its Subsidiaries on a consolidated basis on their
debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) the
Parent
-44-
52
Borrower and its Subsidiaries on a consolidated basis will be able to
pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (d) the
Parent Borrower and its Subsidiaries on a consolidated basis will not
have unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and are
proposed to be conducted after the date hereof.
(ii) The Parent Borrower does not intend to, or to permit any
of its Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to
be received by it or any such Subsidiary and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
5.22. November 2000 Acquisition. The Administrative Agent and the
Lenders have received true, correct and complete copies of the November 2000
Acquisition Agreement and all related documents executed in connection with the
November 2000 Acquisition (including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof. None of such documents and agreements
has been amended or supplemented, nor have any of the provisions thereof been
waived, except pursuant to a written agreement or instrument which has been
delivered to the Administrative Agent and the Lenders. All of the
representations and warranties of the parties to the November 2000 Acquisition
Agreement contained in the November 2000 Acquisition Agreement are true and
correct in all material respects on and as of the date given, and no default or
event of default under the November 2000 Acquisition Agreement has occurred.
5.23. Premier Acquisition Agreement. The Administrative Agent and the
Lenders have received true, correct and complete copies of the Premier
Acquisition Agreement and all related documents executed in connection with the
Premier Acquisition Agreement (including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof. None of such documents and agreements
has been amended or supplemented, nor have any of the provisions thereof been
waived, except pursuant to a written agreement or instrument which has been
delivered to the Administrative Agent and the Lenders. All of the
representations and warranties of the parties to the Premier Acquisition
Agreement contained in the Premier Acquisition Agreement are true and correct in
all material respects on and as of the date given, and no default or event of
default under the Premier Acquisition Agreement has occurred or will result from
the transactions contemplated by this Agreement.
5.24. Indenture. The Parent Borrower has made a thorough and complete
review of the Indenture and compliance by RGI with the terms and provisions
thereof. No default, and no event which with the giving of notice or lapse of
time or both would be a default, exists under the Indenture or will result from
the transactions contemplated by this Agreement.
-45-
53
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Parent Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 120 days after the close of each of its fiscal
years, an unqualified audit report certified by independent certified
public accountants acceptable to the Lenders, prepared in accordance
with Agreement Accounting Principles on a consolidated basis for itself
and its Subsidiaries, including balance sheets as of the end of such
period, related profit and loss and reconciliation of surplus
statements, and a statement of cash flows, accompanied by any
management letter prepared by said accountants.
(ii) Within 60 days after the close of each of the quarterly
periods of each of its fiscal years, for itself and its Subsidiaries,
consolidated unaudited balance sheets as at the close of each such
period and consolidated profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, all certified
by its chief financial officer.
(iii) As soon as available, but in any event within 15 days
before the beginning of each fiscal year of the Parent Borrower, a copy
of the plan and forecast (including a projected consolidated balance
sheet, income statement and funds flow statement) of the Parent
Borrower for the forthcoming fiscal year.
(iv) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer showing the
calculations necessary to determine compliance with this Agreement and
stating that no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status thereof.
(v) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by Arthur Andersen LLP or an actuary enrolled
under ERISA.
(vi) As soon as possible and in any event within 10 days after
the Parent Borrower knows that any Reportable Event that could
reasonably be expected to have a Material Adverse Effect has occurred
with respect to any Plan, a statement, signed by the chief financial
officer of the Parent Borrower, describing said Reportable Event and
the action which the Parent Borrower proposes to take with respect
thereto.
-46-
54
(vii) As soon as possible and in any event within 10 days
after receipt by the Parent Borrower, a copy of (a) any notice or claim
to the effect that the Parent Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the Parent
Borrower, any of its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local environmental,
health or safety law or regulation by the Parent Borrower or any of its
Subsidiaries, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the
shareholders of the Parent Borrower, copies of all financial
statements, reports and proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which the Parent Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission.
(x) Promptly upon furnishing thereof to the holders of the
Target Senior Subordinated Notes, copies of all reports, notices, and
proxy statements so furnished.
(xi) Such other information (including non-financial
information) as the Administrative Agent or any Lender may from time to
time reasonably request.
6.2. Use of Proceeds. The Parent Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions for general corporate
purposes, to finance a portion of the purchase price of the November 2000
Acquisition, to refinance existing Indebtedness of the Parent Borrower,
Subsidiaries and the Target, and to finance Acquisitions and Investments
permitted under Section 6.14, and capital expenditures permitted hereunder. The
Parent Borrower will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Advances to purchase or carry any "margin stock" (as defined in
Regulation U).
6.3. Notice of Default. The Parent Borrower will, and will cause each
Subsidiary to, give prompt notice (which notice shall in any event be given
within three (3) Business Days) in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Parent Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in the construction products or building materials industry as it is
presently conducted and do all things necessary to remain duly incorporated or
organized, validly existing and (to the extent such concept applies to such
entity) in good standing as a domestic corporation, partnership or limited
liability company in its jurisdiction of incorporation or organization, as the
case may be, and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted except where failure to
maintain such authority could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
-47-
55
6.5. Taxes. The Parent Borrower will, and will cause each Subsidiary
to, timely file complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except (i) those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside in accordance with Agreement Accounting Principles or (ii) where
failure to file or pay could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect. At any time that any Subsidiary of
the Parent Borrower is organized as a limited liability company, each such
limited liability company will qualify for partnership tax treatment under
United States federal tax law.
6.6. Insurance. The Parent Borrower will, and will cause each
Subsidiary to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks as is
consistent with sound business practice, and the Parent Borrower will furnish to
any Lender upon request full information as to the insurance carried.
6.7. Compliance with Laws. The Parent Borrower will, and will cause
each Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws other than such noncompliance which
could not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
6.8. Maintenance of Properties. The Parent Borrower will, and will
cause each Subsidiary to, do all things necessary to maintain, preserve, protect
and keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times except
where such failure could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
6.9. Inspection. The Parent Borrower will, and will cause each
Subsidiary to, permit the Administrative Agent and the Lenders, by their
respective representatives and agents, to inspect any of the Property, books and
financial records of the Parent Borrower and each Subsidiary, to examine and
make copies of the books of accounts and other financial records of the Parent
Borrower and each Subsidiary, and to discuss the affairs, finances and accounts
of the Parent Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers at such reasonable times and intervals as the
Administrative Agent or any Lender may designate.
6.10. Dividends. The Parent Borrower will not, nor will it permit any
Subsidiary to, declare or pay any dividends or make any distributions on its
capital stock (other than dividends payable in its own capital stock) or redeem,
repurchase or otherwise acquire or retire any of its capital stock at any time
outstanding, except that (i) any Subsidiary may declare and pay dividends or
make distributions to the Parent Borrower or to a Wholly-Owned Subsidiary and
(ii) when no Default exists or will result therefrom, the Parent Borrower may
pay dividends on its capital stock during each fiscal year in an amount not to
exceed in the aggregate $5,000,000.
-48-
56
6.11. Indebtedness. The Parent Borrower will not, nor will it permit
any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness existing on the date hereof and described in
Schedule 2.
(iii) Indebtedness arising under Rate Management Obligations
having a Net Mark-to-Market Exposure not exceeding $15,000,000.
(iv) Indebtedness arising in connection with transactions
permitted by Section 6.13(iii).
(v) Indebtedness arising in connection with the sale or
transfer of an interest in trade receivables of the Parent Borrower or
any Subsidiary on a limited recourse basis not exceeding in the
aggregate $100,000,000 at any one time outstanding.
(vi) With respect to Subsidiary Borrower only, the Target
Senior Subordinated Notes.
(vii) Annual payments under Operating Leases not to exceed in
the aggregate $5,000,000 during any fiscal year.
(viii) Indebtedness in addition to that specifically described
in clauses (i) through (vii) of this Section 6.11 incurred when no
Default exists or will result therefrom which in the aggregate does not
exceed $15,000,000 at any time outstanding.
(ix) So long as no Default has occurred and is continuing or
would result therefrom, Indebtedness representing intercompany advances
or payables permitted under Section 6.14(iv)
(x) So long as no Default has occurred and is continuing or
would result therefrom, any guarantee by Parent Borrower or its
Subsidiaries (other than Subsidiary Borrower and its Subsidiaries among
whom any such guarantee shall be permitted only upon payment in full of
the Target Senior Subordinated Notes) of Indebtedness of a Subsidiary
otherwise permitted under this Section 6.11.
6.12. Merger. The Parent Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except (i)
that a Subsidiary may merge into the Parent Borrower or a Subsidiary (subject to
compliance with Section 6.25) and (ii) in connection with Permitted
Acquisitions.
6.13. Sale of Assets. The Parent Borrower will not, nor will it permit
any Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business.
-49-
57
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Parent Borrower and its
Subsidiaries previously leased, sold or disposed of (other than
inventory in the ordinary course of business) as permitted by this
Section during the twelve-month period ending with the month in which
any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Parent Borrower and its
Subsidiaries.
(iii) Any transfer of an interest in accounts or notes
receivable on a limited recourse basis, provided that such transfer
qualifies as a sale under Agreement Accounting Principles and that the
amount of such financing does not exceed $100,000,000 at any one time
outstanding.
6.14. Investments and Acquisitions. The Parent Borrower will not, nor
will it permit any Subsidiary to, make or suffer to exist any Investments
(including without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other
Investments in existence on the date hereof and described in
Schedule 1.
(iii) Permitted Acquisitions.
(iv) Other Investments in Subsidiaries (subject to compliance
with Section 6.25) provided that no additional Investments may be made
in Subsidiary Borrower or its Subsidiaries until payment in full of the
Target Senior Subordinated Notes.
(v) Investments comprised of instruments received in
connection with the workout or other restructure in the ordinary course
of business of amounts payable to Parent Borrower or a Subsidiary.
6.15. Liens. The Parent Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Parent Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate
reserves in accordance with Agreement Accounting Principles shall have
been set aside on its books.
(ii) Liens imposed by law, such as carriers', landlords',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of
-50-
58
obligations not more than 60 days past due or which are being contested
in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Parent
Borrower or its Subsidiaries.
(v) Liens existing on the date hereof and described in
Schedule 2.
(vi) Liens incurred in connection with any transfer of an
interest in accounts or notes receivable which is permitted pursuant to
Section 6.13(iii).
(vii) Liens securing Indebtedness permitted to be incurred
under Section 6.11 which attach solely to the assets purchased with the
proceeds of such Indebtedness.
6.16. Capital Expenditures. The Parent Borrower will not, nor will it
permit any Subsidiary to, expend, or be committed to expend, in excess of
$50,000,000 for Capital Expenditures during any one fiscal year on a
non-cumulative basis in the aggregate for the Parent Borrower and its
Subsidiaries.
6.17. Affiliates. The Parent Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except (i) in the ordinary course of business and
pursuant to the reasonable requirements of the Parent Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Parent Borrower or such Subsidiary than the Parent Borrower or such
Subsidiary would obtain in a comparable arms-length transaction, (ii)
transactions among the Parent Borrower and its Subsidiaries (other than
Subsidiary Borrower and its Subsidiaries, among whom such transactions shall be
permitted only upon payment in full of the Target Senior Subordinated Notes),
and (iii) immaterial transactions existing as of the date hereof.
6.18. Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. The Parent Borrower will not, nor will it permit any Subsidiary to,
enter into or suffer to exist any (i) Sale and Leaseback Transaction or (ii) any
other transaction pursuant to which it incurs or has incurred Off-Balance Sheet
Liabilities, except for Rate Management Obligations permitted to be incurred
under the terms of Section 6.11(iii) or a transaction permitted under Section
6.13(iii).
6.19. Contingent Obligations. The Parent Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the
obligations of a Subsidiary who is not a Guarantor), except (i) by
-51-
59
endorsement of instruments for deposit or collection in the ordinary course of
business, (ii) the Reimbursement Obligations, (iii) the Guaranty, (iv) as
permitted by Section 6.11(viii) or 6.11(x) and (v) Contingent Obligations which
constitute obligations existing as of the date hereof of any Borrower or any
Subsidiary as a general partner of a partnership with respect to the liabilities
of such partnership.
6.20. Letters of Credit. The Parent Borrower will not, nor will it
permit any Subsidiary to, apply for or become liable upon or in respect of any
Letter of Credit other than Facility LCs.
6.21. Financial Contracts. The Parent Borrower will not, nor will it
permit any Subsidiary to, enter into or remain liable upon any Financial
Contract, except Rate Management Obligations permitted under Section 6.11(iii).
6.22. Financial Covenants.
6.22.1. Interest Coverage Ratio. The Parent Borrower will not
permit the ratio, determined as of the end of each of its fiscal
quarters for the then most-recently ended four fiscal quarters, of (i)
Consolidated EBIT to (ii) Consolidated Interest Expense to be less than
3.0 to 1.0.
6.22.2. Leverage Ratio. The Parent Borrower will not permit
the ratio, determined as of the end of each of its fiscal quarters, of
(i) Consolidated Funded Indebtedness to (ii) Consolidated EBITDA for
the then most-recently ended four fiscal quarters to be greater than
2.50 to 1.00.
6.22.3. Minimum Tangible Net Worth. As of December 31, 2000,
the Parent Borrower will at all times maintain Consolidated Tangible
Net Worth of not less than $325,000,000 and for the last day of each
fiscal quarter thereafter, not less than the sum of (i) the minimum
Consolidated Tangible Net Worth required for the prior fiscal quarter,
plus (ii) 50% of the Consolidated Net Income (not less than $0.00) for
the fiscal quarter then ended, plus (iii) 100% of the Net Cash Proceeds
of any equity issuances (excluding issuances described in clause (a) of
the first sentence of Section 2.25 and issuances solely to finance
Permitted Acquisitions) by the Parent Borrower or any Subsidiary for
the fiscal quarter then ended.
6.23. Lines of Business. The Parent Borrower will not, nor will it
permit any Subsidiary to, engage in any line or lines of business activity other
than the businesses in which they are engaged on the date hereof or lines of
business complementary or reasonably related to the construction products or
building materials industry.
6.24. Prepayment of Debt. When a Default has occurred and is continuing
or will result therefrom, the Parent Borrower will not, and will not permit any
Subsidiary to, prepay any Indebtedness, except the Obligations.
6.25. Future Subsidiaries. The Parent Borrower shall cause each Person
that becomes a Significant Subsidiary after the date of the initial Credit
Extension to promptly execute such documents, instruments, and agreements as the
Administrative Agent deems necessary or appropriate, in form and
-52-
60
substance satisfactory to the Administrative Agent, to cause such Subsidiary to
become a guarantor of the Obligations on a basis substantially the same as the
existing Guarantors.
6.26. Prohibition on Granting Negative Pledges. Except for this
Agreement and Liens permitted by Section 6.15 to the extent such Liens encumber
only the assets so financed, the Parent Borrower will not and will not permit
any Subsidiary to enter into or become bound by any agreement, understanding or
arrangement (other than this Agreement) that limits, restricts or impairs in any
way the right of any of such Person to create, assume or suffer to exist any
Lien on any of such Person's Properties or assets in favor of the Administrative
Agent (or any successor Administrative Agent) for the benefit of the Lenders.
6.27. Prohibition on Granting Restrictions on Distributions. Except for
this Agreement, the Parent Borrower will not enter into or become bound by any
agreement, arrangement or understanding or permit its Subsidiaries to do so
(including, without limitation, their respective articles of incorporation,
bylaws or other charter documents) that limits, restricts, subordinates or
impairs in any way the right or ability of any of the Subsidiaries to make
dividends or distributions to or Investments in the Parent Borrower or to repay
any Indebtedness or obligation owed to the Parent Borrower.
6.28. Prohibition on Synthetic Leases. Parent Borrower will not at any
time become or be obligated as lessee or borrower under any Synthetic Lease nor
will it permit any Subsidiary to do so.
6.29. Amendments to Indebtedness. The Parent Borrower will not, and
will not permit any Subsidiary to, make any amendment or modification to the
Indenture or any indenture, note or other agreement evidencing or governing any
Subordinated Indebtedness or the Indebtedness owed by Subsidiary Guarantor or
its Subsidiaries to Parent Guarantor or its other Subsidiaries, or directly or
indirectly voluntarily prepay, defease or in substance defease, purchase,
redeem, retire or otherwise acquire, any Subordinated Indebtedness or the
Indebtedness owed by Subsidiary Guarantor or its Subsidiaries to Parent
Guarantor or its other Subsidiaries, other than prepayment of the Target Senior
Subordinated Notes permitted by Section 6.24 and so long as no Default has
occurred and is continuing or would result therefrom, the payment of
intercompany Indebtedness.
6.30. Joinder of Subsidiary Borrower. Upon the payment in full of the
Indebtedness evidenced by Target Senior Subordinated Notes, the Subsidiary
Borrower shall (a) promptly notify the Administrative Agent in writing that such
Indebtedness has been paid in full and all agreements and other documents
executed in connection therewith (including the Indenture and the Target Senior
Subordinated Notes) have been terminated or that all measures necessary to
defease the remaining Target Senior Subordinated Notes pursuant to the Indenture
shall have been completed, (b) have the right to request that the Revolving
Subfacility be combined with the balance of the Revolving Credit Facility into
one revolving loan facility, (c) execute a joinder agreement or similar
agreement, in form and substance satisfactory to the Administrative Agent,
whereby the Subsidiary Borrower and its Significant Subsidiaries will agree to
guarantee all Obligations which are not Joint and Several Obligations and (d)
execute such amendments and other documentation as reasonably requested by the
Administrative Agent in order to combine the facilities in accordance with
subsection (b), such amendments and other documentation to be in form and
substance satisfactory to each of the parties hereto.
-53-
61
6.31. Target Senior Subordinated Notes. Within ten (10) days after the
date hereof, the Subsidiary Borrower shall deliver to the Administrative Agent
evidence that it has assumed the obligations owing under the Target Senior
Subordinated Notes and that no default then exists thereunder. Neither the
Subsidiary Borrower nor any of its Subsidiaries shall incur any Indebtedness nor
take any other action which could reasonably be expected to cause a default
under the Target Senior Subordinated Notes.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Parent Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.2. Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any commitment fee, LC Fee or other
obligations under any of the Loan Documents within five days after the same
becomes due.
7.3. The breach by the Parent Borrower of any of the terms or
provisions of Section 6.1, 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.18,
6.19, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.26, 6.27, 6.28, 6.29, or 6.30.
7.4. The breach by the Parent Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement which is not remedied within 15 days after
written notice from the Administrative Agent or any Lender.
7.5. Failure of the Parent Borrower or any of its Subsidiaries to pay
when due (beyond the applicable grace period with respect thereto, if any) any
Indebtedness aggregating in excess of $2,500,000 ("Material Indebtedness"); or
the default by the Parent Borrower or any of its Subsidiaries in the performance
(beyond the applicable grace period with respect thereto, if any) of any term,
provision or condition contained in any agreement under which any such Material
Indebtedness was created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of the Parent Borrower or any of its Subsidiaries shall be declared
to be due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the Parent
Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
-54-
62
7.6. The Parent Borrower or any of its Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Parent
Borrower or any of its Subsidiaries, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Parent Borrower or any of its
Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Parent Borrower or
any of its Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Parent Borrower or any Subsidiary which, when taken together
with all other Property of the Parent Borrower or such Subsidiary so condemned,
seized, appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such action occurs, constitutes a
Substantial Portion.
7.9. The Parent Borrower or any of its Subsidiaries shall fail within
60 days to pay, bond or otherwise discharge one or more (i) judgments or orders
for the payment of money in excess of $2,500,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. The Parent Borrower or any member of the Controlled Group has
incurred in the aggregate Unfunded Liabilities of all Single Employer Plans by
an amount which could reasonably be expected to have a Material Adverse Effect
or any Reportable Event shall occur in connection with any Plan which could
reasonably be expected to have a Material Adverse Effect.
7.11. The Parent Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred withdrawal liability to such Multiemployer Plan in an amount which,
when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Parent Borrower or any other member of the Controlled Group as
withdrawal liability (determined as of the date of such notification), could
reasonably be expected to have a Material Adverse Effect.
-55-
63
7.12. The Parent Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Parent Borrower and the
other members of the Controlled Group (taken as a whole) to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount which
could reasonably be expected to have a Material Adverse Effect.
7.13. The Parent Borrower or any of its Subsidiaries shall (i) be the
subject of any proceeding or investigation pertaining to the release by the
Parent Borrower, any of its Subsidiaries or any other Person of any toxic or
hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) or
clause (ii), could reasonably be expected to have a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any Guaranty to
which it is a party, or shall give notice to such effect.
7.16. The representations and warranties set forth in Section 5.15
("Plan Assets; Prohibited Transactions") shall at any time not be true and
correct.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration; Facility LC Collateral Account.
(i) If any Default described in Section 7.6 or 7.7 occurs, the
obligations of the Lenders to make Loans hereunder and the obligation
and power of the LC Issuer to issue Facility LCs shall automatically
terminate and the Obligations shall immediately become due and payable
without any election or action on the part of the Administrative Agent,
the LC Issuer or any Lender and the Parent Borrower will be and become
thereby unconditionally obligated, without any further notice, act or
demand, to pay to the Administrative Agent an amount in immediately
available funds, which funds shall be held in the Facility LC
Collateral Account, equal to the difference of (x) the amount of LC
Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of
all rights and claims of third
-56-
64
parties and has not been applied against the Obligations (such
difference, the "Collateral Shortfall Amount"). If any other Default
occurs, the Required Lenders (or the Administrative Agent with the
consent of the Required Lenders) may (a) terminate or suspend the
obligations of the Lenders to make Loans hereunder and the obligation
and power of the LC Issuer to issue Facility LCs, or declare the
Obligations to be due and payable, or both, whereupon the Obligations
shall become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which the Parent Borrower hereby
expressly waives, and (b) upon notice to the Parent Borrower and in
addition to the continuing right to demand payment of all amounts
payable under this Agreement, make demand on the Parent Borrower to
pay, and the Parent Borrower will, forthwith upon such demand and
without any further notice or act, pay to the Administrative Agent the
Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the
Administrative Agent determines that the Collateral Shortfall Amount at
such time is greater than zero, the Administrative Agent may make
demand on the Parent Borrower to pay, and the Parent Borrower will,
forthwith upon such demand and without any further notice or act, pay
to the Administrative Agent the Collateral Shortfall Amount, which
funds shall be deposited in the Facility LC Collateral Account.
(iii) The Administrative Agent may at any time or from time to
time after funds are deposited in the Facility LC Collateral Account,
apply such funds to the payment of the Obligations and any other
amounts as shall from time to time have become due and payable by the
Parent Borrower to the Lenders or the LC Issuer under the Loan
Documents.
(iv) At any time while any Default is continuing, neither the
Parent Borrower nor any Person claiming on behalf of or through the
Parent Borrower shall have any right to withdraw any of the funds held
in the Facility LC Collateral Account. After all of the Obligations
have been indefeasibly paid in full and the Aggregate Commitment has
been terminated, any funds remaining in the Facility LC Collateral
Account shall be returned by the Administrative Agent to the Parent
Borrower or paid to whomever may be legally entitled thereto at such
time.
(v) If, within 30 days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to
make Loans and the obligation and power of the LC Issuer to issue
Facility LCs hereunder as a result of any Default (other than any
Default as described in Section 7.6 or 7.7) and before any judgment or
decree for the payment of the Obligations due shall have been obtained
or entered, the Required Lenders (in their sole discretion) shall so
direct, the Administrative Agent shall, by notice to the Borrowers,
rescind and annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving
-57-
65
any Default hereunder; provided, however, that no such supplemental agreement
shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the
expiry date of any Facility LC to a date after the Facility Termination
Date or postpone any regularly scheduled payment of principal of any
Loan or forgive all or any portion of the principal amount thereof or
any Reimbursement Obligation related thereto, or reduce the rate or the
unused fee due under Section 2.5 or extend the time of payment of
interest or fees thereon or Reimbursement Obligations related thereto.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Extend the Facility Termination Date, or reduce the
amount or extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Aggregate Commitment,
the Commitment of any Lender hereunder or the commitment to issue
Facility LCs, or permit either Borrower to assign its rights under this
Agreement.
(iv) Amend this Section 8.2.
(v) Release any Guarantor except where the sale of all or
substantially all of the assets or equity interests in a Guarantor is
otherwise permitted hereunder, in which event the Administrative Agent
shall execute and deliver to Parent Borrower such release upon such
sale.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, and no amendment of any provision relating to the LC Issuer shall be
effective without the written consent of the LC Issuer. The Administrative Agent
may waive payment of the fee required under Section 12.3.2 without obtaining the
consent of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders, the
LC Issuer or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Credit Extension notwithstanding
the existence of a Default or the inability of the Borrowers to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent, the LC Issuer and the Lenders until the Obligations
have been paid in full.
-58-
66
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrowers contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to either Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. ENTIRE AGREEMENT. THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT
AND UNDERSTANDING AMONG THE BORROWERS, THE ADMINISTRATIVE AGENT, THE LC ISSUER
AND THE LENDERS AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS AMONG THE
BORROWERS, THE ADMINISTRATIVE AGENT, THE LC ISSUER AND THE LENDERS RELATING TO
THE SUBJECT MATTER THEREOF OTHER THAN THE FEE LETTER DESCRIBED IN SECTION 10.13.
THE LOAN DOCUMENTS MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however, that
the parties hereto expressly agree that the Arranger shall enjoy the benefits of
the provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
9.6. Expenses; Indemnification.
(i) The Borrowers shall reimburse the Administrative Agent and
the Arranger for any costs, internal charges for fees and time charges
of attorneys who are employees of the Administrative Agent, the
Arranger, the LC Issuer and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Administrative
Agent) paid or incurred by the Administrative Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the
Loan
-59-
67
Documents. The Borrowers also agree to reimburse the Administrative
Agent, the Arranger, the LC Issuer and the Lenders for any costs,
internal charges for fees and time charges of attorneys who are
employees of the Administrative Agent, the Arranger, the LC Issuer, the
Lenders and out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Administrative Agent, the Arranger, the LC
Issuer and the Lenders) paid or incurred by the Administrative Agent,
the Arranger, the LC Issuer or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being
reimbursed by the Borrowers under this Section include, without
limitation, costs and expenses incurred in connection with the Reports
described in the following sentence. The Borrowers acknowledge that
from time to time Bank One may prepare and may distribute to the
Lenders (but shall have no obligation or duty to prepare or to
distribute to the Lenders) certain audit reports (the "Reports")
pertaining to the Borrowers' assets for internal use by Bank One from
information furnished to it by or on behalf of the Borrowers, after
Bank One has exercised its rights of inspection pursuant to this
Agreement.
(ii) THE BORROWERS HEREBY FURTHER AGREE TO INDEMNIFY THE
ADMINISTRATIVE AGENT, THE ARRANGER, THE LC ISSUER AND EACH LENDER, ITS
DIRECTORS, OFFICERS AND EMPLOYEES AGAINST ALL LOSSES, CLAIMS, DAMAGES,
PENALTIES, JUDGMENTS, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, ALL EXPENSES OF LITIGATION OR PREPARATION THEREFOR WHETHER
OR NOT THE ADMINISTRATIVE AGENT, THE ARRANGER, THE LC ISSUER OR ANY
LENDER IS A PARTY THERETO) WHICH ANY OF THEM MAY PAY OR INCUR ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE DIRECT OR INDIRECT APPLICATION
OR PROPOSED APPLICATION OF THE PROCEEDS OF ANY CREDIT EXTENSION
HEREUNDER EXCEPT TO THE EXTENT THAT THEY ARE DETERMINED IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF
THE PARTY SEEKING INDEMNIFICATION; PROVIDED HOWEVER, THAT IN NO EVENT
SHALL THE BORROWERS BE LIABLE UNDER THIS SECTION 9.6 FOR ANY LOST
PROFITS OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES. THE OBLIGATIONS OF THE BORROWERS UNDER THIS SECTION 9.6 SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
9.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
-60-
68
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrowers
on the one hand and the Lenders, the LC Issuer and the Administrative Agent on
the other hand shall be solely that of borrower and lender. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any
fiduciary responsibilities to the Borrowers. Neither the Administrative Agent,
the Arranger, the LC Issuer nor any Lender undertakes any responsibility to the
Borrowers to review or inform the Borrowers of any matter in connection with any
phase of the Borrowers' business or operations. Each Borrower agrees that
neither the Administrative Agent, the Arranger, the LC Issuer nor any Lender
shall have liability to the Borrowers (whether sounding in tort, contract or
otherwise) for losses suffered by the Borrowers in connection with, arising out
of, or in any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-appealable judgment
by a court of competent jurisdiction that such losses resulted from the gross
negligence, bad faith or willful misconduct of the party from which recovery is
sought. Neither the Administrative Agent, the Arranger, the LC Issuer nor any
Lender shall have any liability with respect to, and each Borrower hereby
waives, releases and agrees not to sue for, any special, indirect or
consequential damages suffered by the Borrowers in connection with, arising out
of, or in any way related to the Loan Documents or the transactions contemplated
thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrowers pursuant to this Agreement
in confidence, except for disclosure (i) to its Affiliates and to other Lenders
and their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 12.4.
9.12. Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
9.13. Disclosure. Each Borrower and each Lender hereby acknowledge and
agree that Bank One and/or its Affiliates from time to time may hold investments
in, make other loans to, or have other relationships with the Parent Borrower
and its Affiliates.
9.14. Maximum Interest Rate. No provision of this Agreement or of any
other Loan Document shall require the payment or the collection of interest in
excess of the maximum amount permitted by applicable law. If any excess of
interest in such respect is hereby provided for, or shall be adjudicated to
-61-
69
be so provided, in any Loan Document or otherwise in connection with this loan
transaction, the provisions of this Section shall govern and prevail and neither
Borrower nor the sureties, guarantors, successors, or assigns of either Borrower
shall be obligated to pay the excess amount of such interest or any other excess
sum paid for the use, forbearance, or detention of sums loaned pursuant hereto.
In the event any Lender or the Administrative Agent ever receives, collects, or
applies as interest any such sum, such amount which would be in excess of the
maximum amount permitted by applicable law shall be applied as a payment and
reduction of the principal of the indebtedness owing under this Agreement; and,
if the principal owing has been paid in full, any remaining excess shall
forthwith be paid to the Borrowers. In determining whether or not the interest
paid or payable exceeds the Maximum Rate, the Borrowers, the Administrative
Agent, and each Lender shall, to the extent permitted by applicable law, (a)
characterize any non-principal payment as an expense, fee, or premium rather
than as interest, (b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the entire contemplated term of the indebtedness
owing pursuant to this Agreement so that interest for the entire term does not
exceed the Maximum Rate.
9.15. Non-Application of Chapter 346 of Texas Finance Code. The
provisions of Chapter 346 of the Texas Credit Code, as amended from time to
time, are specifically declared by the parties hereto not to be applicable to
this Agreement or any of the other Loan Documents or to the transactions
contemplated hereby.
9.16. Survival of Prior Agreements. The rights and privileges
(excluding the confidentiality and indemnification provisions which are being
restated pursuant to this Agreement) afforded the Administrative Agent and the
Arranger in that certain commitment letter and that certain fee letter, each
dated August 9, 2000 among such Persons and Parent Borrower, shall survive the
execution and delivery of this Agreement, and the Administrative Agent and the
Arranger shall continue to be entitled to the benefits thereof.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature of Relationship. Bank One, Texas, NA is
hereby appointed by each of the Lenders as its contractual representative
(herein referred to as the "Administrative Agent") hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the
-62-
70
Administrative Agent (i) does not hereby assume any fiduciary duties to any of
the Lenders, (ii) is a "representative" of the Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Lender hereby waives.
10.2. Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrowers, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence, bad faith or willful misconduct of such Person.
10.4. No Responsibility for Credit Extensions, Recitals, etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered solely to the Administrative
Agent; (d) the existence or possible existence of any Default or Unmatured
Default; (e) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith; (f) the value, sufficiency, creation, perfection or
priority of any Lien in any collateral security; or (g) the financial condition
of the Borrowers or any guarantor of any of the Obligations or of any of the
Parent Borrower's or any such guarantor's respective Subsidiaries. The
Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrowers to the Administrative
Agent at such time, but is voluntarily furnished by the Borrowers to the
Administrative Agent (either in its capacity as Administrative Agent or in its
individual capacity).
10.5. Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Document
-63-
71
unless it shall be requested in writing to do so by the Required Lenders. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the
Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8. Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Borrowers for which the
Administrative Agent is entitled to reimbursement by the Borrowers or either of
them under the Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement
of any of the terms of the Loan Documents or of any such other documents,
provided that (i) no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Administrative Agent and (ii) any indemnification
required pursuant to Section 3.5(vii) shall, notwithstanding the provisions of
this Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8 shall
survive payment of the Obligations and termination of this Agreement.
-64-
72
10.9. Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrowers referring to this Agreement describing such
Default or Unmatured Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Commitment and its Credit
Extensions as any Lender and may exercise the same as though it were not the
Administrative Agent, and the term "Lender" or "Lenders" shall, at any time when
the Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the Parent
Borrower or any of its Subsidiaries in which the Parent Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrowers and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
10.12. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrowers, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the retiring Administrative Agent gives notice
of its intention to resign. The Administrative Agent may be removed at any time
with or without cause by written notice received by the Administrative Agent
from the Required Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time without the consent of either
Borrower or any Lender, appoint any of its Affiliates which is a commercial bank
as a successor Administrative Agent hereunder. If the Administrative Agent has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder and the Borrowers shall make all payments in respect of the
Obligations
-65-
73
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $1,000,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the
resignation or removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.
10.13. Administrative Agent and Arranger Fees. The Parent Borrower
agrees to pay to the Administrative Agent and the Arranger, for their respective
accounts, the fees agreed to by the Parent Borrower, the Administrative Agent
and the Arranger pursuant to that certain letter agreement dated August 9, 2000,
or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrowers and the Lenders agree
that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and X.
10.15. Co-Agents, Documentation Agent, Syndication Agent, etc. Neither
any of the Lenders identified in this Agreement as a "co-agent" nor the
Documentation Agent or the Syndication Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
such Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to such
Lenders as it makes with respect to the Administrative Agent in Section 10.11.
-66-
74
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if either Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of either Borrower
may be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Share of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) neither
Borrower shall have the right to assign its rights or obligations under the Loan
Documents and (ii) any assignment by any Lender must be made in compliance with
Section 12.3. The parties to this Agreement acknowledge that clause (ii) of this
Section 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank; provided, however, that
no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of Section 12.3. The Administrative
Agent may treat the Person which made any Credit Extension or which holds any
Note as the owner thereof for all purposes hereof unless and until such Person
complies with Section 12.3; provided, however, that the Administrative Agent may
in its discretion (but shall not be required to) follow instructions from the
Person which made any Credit Extension or which holds any Note to direct
payments relating to such Credit Extension or Note to another Person. Any
assignee of the rights to any Credit Extension or any Note agrees by acceptance
of such
-67-
75
assignment to be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any
Credit Extension (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Credit Extension.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Outstanding Credit
Exposure of such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable
by the Borrowers under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrowers and
the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Credit
Extension or Commitment in which such Participant has an interest which
forgives principal, interest, fees or any Reimbursement Obligation or
reduces the interest rate or fees payable with respect to any such
Credit Extension or Commitment, extends the Facility Termination Date,
postpones any date fixed for any regularly-scheduled payment of
principal of or interest on any Credit Extension in which such
Participant has an interest, or any regularly-scheduled payment of fees
on any such Credit Extension or Commitment, releases any guarantor of
any such Credit Extension (except as otherwise permitted by Section
8.2(v)) or releases any collateral held in the Facility LC Collateral
Account (except in accordance with the terms hereof) or all or
substantially all of any other collateral, if any, securing any such
Credit Extension.
12.2.3. Benefit of Setoff. Each Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
-68-
76
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents;
provided however, if such assignments are of Eurodollar Loans prior to
the last day of the Interest Period applicable thereto, the Borrowers
will not be required to pay the breakage fees, if any, associated with
such assignment. Such assignment shall be substantially in the form of
Exhibit C or in such other form as may be agreed to by the parties
thereto. The consent of the Borrowers, the Administrative Agent and the
LC Issuer shall be required prior to an assignment becoming effective
with respect to a Purchaser which is not a Lender or an Affiliate
thereof; provided, however, that if a Default has occurred and is
continuing, the consent of the Borrowers shall not be required. Such
consent shall not be unreasonably withheld or delayed. Each such
assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Parent Borrower and the
Administrative Agent otherwise consents) be in an amount not less than
the lesser of (i) $5,000,000 or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such
assignment) or outstanding Credit Extensions (if the applicable
Commitment has been terminated).
12.3.2. Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the
form attached as Exhibit I to Exhibit C (a "Notice of Assignment"),
together with any consents required by Section 12.3.1, and (ii)
effective on and after January 9, 2001, payment of a $4,000 fee to the
Administrative Agent for processing such assignment, such assignment
shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation
by the Purchaser to the Administrative Agent and the Borrowers to the
effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable
assignment agreement are "plan assets" as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by or on behalf of the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further
consent or action by the Borrowers, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect
to the percentage of the Aggregate Commitment and Outstanding Credit
Exposure assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Administrative Agent and the Borrowers shall, if
the transferor Lender or the Purchaser desires that its Loans be
evidenced by Notes, make appropriate arrangements so that new Notes or,
as appropriate, replacement Notes are issued to such transferor Lender
and new Notes or, as appropriate, replacement Notes, are issued to such
-69-
77
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
12.4. Dissemination of Information. Each Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Parent Borrower and its Subsidiaries,
including without limitation any information contained in any Reports; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrowers or the Administrative Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Lender, at its address or facsimile number set forth below its signature hereto,
or (z) in the case of any party, at such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Parent Borrower in accordance with the provisions of this Section
13.1. Each such notice, request or other communication shall be effective (i) if
given by facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is received, (ii) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (iii) if given by any other
means, when delivered (or, in the case of electronic transmission, received) at
the address specified in this Section; provided that notices to the
Administrative Agent under Article II shall not be effective until received.
13.2. Change of Address. The Borrowers, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
-70-
78
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Administrative Agent, the LC Issuer and the Lenders and each party has notified
the Administrative Agent by facsimile transmission or telephone that it has
taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF TEXAS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. EACH BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR TEXAS STATE
COURT SITTING IN DALLAS, TEXAS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT, THE LC ISSUER OR ANY LENDER TO BRING
PROCEEDINGS AGAINST EITHER BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY EITHER BORROWER AGAINST THE ADMINISTRATIVE AGENT, THE LC
ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, THE LC ISSUER
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN
A COURT IN DALLAS, TEXAS.
15.3. WAIVER OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE AGENT,
THE LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
-71-
79
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-72-
80
IN WITNESS WHEREOF, the Parent Borrower, the Lenders, the LC Issuer and
the Administrative Agent have executed this Agreement as of the date first above
written.
CENTEX CONSTRUCTION PRODUCTS, INC.,
as Parent Borrower
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Address: 2728 N. Harwood
Dallas, Texas 75201
Attention: Arthur R. Zunker, Jr.
Chief Financial Officer
Telephone: (214) 981-6510
FAX: (214) 981-6559
REPUBLIC HOLDING CORPORATION,
as Subsidiary Borrower
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Address: 2728 N. Harwood
Dallas, Texas 75201
Attention: Arthur R. Zunker, Jr.
Chief Financial Officer
Telephone: (214) 981-6510
FAX: (214) 981-6559
-73-
81
Commitments
$140,000,000 BANK ONE, TEXAS, NA,
Individually, as Administrative Agent
and as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Address: 1717 Main Street, 3rd Floor
Dallas, Texas 75201
Attention: Kathy M. Turner
Telephone: (214) 290-4438
FAX: (214) 290-2765
BANK ONE, NA,
as LC Issuer
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Address: 1717 Main Street, 3rd Floor
Dallas, Texas 75201
Attention: Kathy M. Turner
Telephone: (214) 290-4438
FAX: (214) 290-2765
-74-
82
$35,000,000 BANK OF AMERICA, N.A.,
Individually, as Syndication Agent
and as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Kelly Allred
Telephone: (949) 260-5654
FAX: (949) 260-5638
-75-
83
$35,000,000 PNC BANK, NATIONAL ASSOCIATION
Individually, as Documentation Agent
and as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Philip Liebscher
Telephone: (412) 762-3202
FAX: (412) 762-6484
-76-
84
$15,000,000 BNP PARIBAS,
as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Henry F. Setina
Telephone: (972) 788-9191
FAX: (972) 788-9140
-77-
85
$15,000,000 THE CHASE MANHATTAN BANK,
as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Allen K. King
Telephone: (214) 965-2705
FAX: (214) 965-2044
-78-
86
$15,000,000 FIRSTAR BANK, N.A.,
as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Greg Dryden
Telephone: (314) 418-3983
FAX: (314) 418-3859
-79-
87
$15,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: John M. Mearns
Telephone: (214) 954-1200
FAX: (214) 954-1007
-80-
88
$25,000,000 CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Robert Smith
Telephone: (214) 220-2311
FAX: (214) 220-2323
-81-
89
$20,000,000 SUNTRUST BANK,
as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Don Gaudette
Telephone: (404) 658-4925
FAX: (404) 827-6270
-82-
90
$ 10,000,000 BANK HAPOALIM B.M.,
as a Lender
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
By:
-------------------------------------
Name:
---------------------------
Title:
---------------------------
Attention: Chris Hillard
Telephone: (415) 989-9940
FAX: (415) 989-9948
$325,000,000.00
===============
-83-
91
PRICING SCHEDULE
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV
MARGIN STATUS STATUS STATUS STATUS
- --------------- ------- -------- --------- --------
Eurodollar Rate 0.75% 1.00% 1.25% 1.50%
Floating Rate 0.00% 0.00% 0.25% 0.50%
APPLICABLE FEE LEVEL I LEVEL II LEVEL III LEVEL IV
RATE STATUS STATUS STATUS STATUS
- --------------- ------- -------- --------- --------
Commitment Fee 0.25% 0.25% 0.30% 0.375%
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Parent Borrower delivered pursuant to Section 6.1(i) or (ii).
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Parent Borrower referred to in the most recent Financials,
the Leverage Ratio is less than 1.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Parent Borrower referred to in the most recent Financials,
(i) the Parent Borrower has not qualified for Level I Status and (ii) the
Leverage Ratio is greater than or equal to 1.00 to 1.00 but less than 1.50 to
1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Parent Borrower referred to in the most recent Financials,
(i) the Parent Borrower has not qualified for Level I Status or Level II Status
and (ii) the Leverage Ratio is greater than or equal to 1.50 to 1.00 but less
than 2.00 to 1.00.
"Level IV Status" exists at any date if the Parent Borrower has not
qualified for Level I Status, Level II Status or Level III Status.
"Status" means either Level I Status, Level II Status, Level III Status
or Level IV Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Parent Borrower's Status as
reflected in the then most recent Financials. Adjustments, if any, to the
Applicable Margin or Applicable Fee Rate shall be effective five Business Days
after the Administrative Agent has received the applicable Financials. If the
Parent Borrower fails to deliver the Financials to the Administrative Agent at
the time required pursuant to Section 6.1, then the Applicable Margin and
Applicable Fee Rate shall be the highest Applicable Margin and Applicable Fee
92
Rate set forth in the foregoing table until five days after such Financials are
so delivered. Notwithstanding the foregoing, (a) the Applicable Margin for the
Eurodollar Rate shall remain no lower than Level III Status until the end of the
third fiscal quarter of fiscal year 2001, and (b) the Applicable Fee Rate shall
be 0.50% if at any time during such fiscal quarter the average daily Aggregate
Outstanding Credit Exposure is less than 50% of the Aggregate Commitment.