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EXHIBIT 99.1
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT (FACILITY A)
THIS COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
(FACILITY A) dated as of June 27, 1997, among:
(a) SERVICE CORPORATION INTERNATIONAL, a Texas corporation (the
"Company");
(b) the Borrowing Subsidiaries, as herein defined, that become party
hereto;
(c) the banks and other financial institutions named under the caption
"Banks" on the signature pages hereof (such banks together with each other
Person who becomes a Bank pursuant to Section 9.11, collectively, the "Banks");
(d) THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Banks (in such capacity together with any other
Person who becomes the Administrative Agent pursuant to Section 7.06, the
"Administrative Agent"); and
(e) BANK OF AMERICA ILLINOIS, CITIBANK, N.A., NATIONSBANK, N.A., ROYAL
BANK OF CANADA, SOCIETE GENERALE, and UNION BANK OF SWITZERLAND (collectively
the "Co-Agents").
P R E L I M I N A R Y S T A T E M E N T
The Company has requested that the Banks extend a credit facility to
the Company and the Borrowing Subsidiaries in order to enable the Company and
the Borrowing Subsidiaries to borrow on a revolving credit basis on and after
the date hereof, on the terms and conditions set forth herein, a principal
amount not in excess of $300,000,000 at any time outstanding. The Company has
also requested that the Banks provide a procedure pursuant to which each Bank
may, on an uncommitted basis, bid up to the full amount of the Total Commitment
(as herein defined), regardless of such Bank's individual Commitment, on
borrowings by the Company and the Borrowing Subsidiaries thereunder. The
proceeds of all such borrowings are to be used for general corporate purposes of
the Borrowers including credit support for the Company's commercial paper
program. The Banks are willing to extend such credit to the Company and the
Borrowing Subsidiaries on the terms and subject to the conditions herein set
forth. Accordingly, the Company, the Borrowing Subsidiaries, the Banks and the
Administrative Agent agree as follows:
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ARTICLE I
DEFINITIONS, ACCOUNTING TERMS AND CONSTRUCTION
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR Borrowing" means a Borrowing comprised of ABR Loans.
"ABR Loan" means any Committed Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" means the acquisition by the Company or any of its
Subsidiaries of a business, including any assets, leases and liabilities
(contingent or otherwise) related thereto, either by the cash purchase of stock
or assets or by an exchange or issuance of securities (including merger) or
assumption of liabilities or by a combination thereof.
"Administrative Agent" has the meaning specified in the introduction
to this Agreement.
"Administrative Questionnaire" means an Administrative Questionnaire
in the form of Exhibit 1.01A, which each Bank shall complete and provide to the
Administrative Agent and the Company.
"Affiliate" means, when used with respect to any Person, any other
Person which controls or is controlled by or is under common control with such
Person. As used in this definition, "control" means the possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or ownership interests,
by contract or otherwise).
"Agent's Fee Letter" means the fee letter agreement dated April 29,
1997 between the Company and the Administrative Agent.
"Agreement" means this Competitive Advance and Revolving Credit
Facility Agreement (Facility A).
"Alternate Base Rate" means, for any date, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. "Prime Rate" means, as of a particular date,
the prime rate most recently determined by the Administrative Agent at the
Principal Office, automatically fluctuating upward and downward with and at the
time specified in
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each such announcement without notice to any Borrower or any other Person, which
prime rate may not necessarily represent the lowest or best rate actually
charged to a customer. "Federal Funds Effective Rate" means, for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined (which
determination, made in good faith, shall create a rebuttable presumption that
the same is accurate) that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Creditor" has the meaning specified in Section 9.17.
"Applicable Lending Office" means, with respect to each Bank, such
Bank's Domestic Lending Office in the case of an ABR Loan or a Fixed Rate Loan
and such Bank's Eurodollar Lending Office in the case of a Eurodollar Loan.
"Assignment and Acceptance" has the meaning specified in Section
9.11(c).
"Assurance" means, as to any Person, any guaranty or other contingent
liability of such Person (other than any endorsement for collection or deposit
in the ordinary course of business) including, without limitation, contingent
liabilities as an account party in respect of letters of credit, direct or
indirect, with respect to any obligation of another Person, through an agreement
or otherwise, including (a) any endorsement or discount with recourse or other
undertaking substantially equivalent to or having economic effect similar to a
guarantee in respect of any such obligation and (b) any agreement (i) to
purchase, or to advance or supply funds for the payment or purchase of, any such
obligation, (ii) to purchase, sell or lease property, products, materials or
supplies, or transportation or services, in order to enable such other Person to
pay any such obligation or to assure the owner thereof against loss regardless
of the delivery or non-delivery of the property, products, materials or supplies
or transportation or services or (iii) to make any loan, advance or capital
contribution to or other investment in, or to otherwise provide funds to or for,
such other Person in order to enable such Person to satisfy any obligation
(including any liability for a dividend, stock liquidation payment or expense)
or to assure a minimum equity, working capital or other balance sheet condition
for the benefit of the holder of any such obligation. Notwithstanding the
foregoing, the term "Assurance" shall not include any guaranty or other
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contingent liability, direct or indirect, with respect to (u) bonds, indemnity
agreements and similar arrangements which are provided to assure that the
Company and its Subsidiaries fully perform their obligations regarding
prearranged funeral services and goods and/or construction of burial facilities,
(v) obligations of a Person acquired, or of a business which has been acquired,
in an Acquisition, provided that such obligations arose prior to such
Acquisition and were not created, incurred or assumed in contemplation thereof,
(w) obligations of a Subsidiary arising from an Acquisition, (x) any duly
authorized registered guaranty of the Company of a promissory note of its
Subsidiary issued or to be issued with respect to an Acquisition in accordance
with an Indenture dated as of May 1, 1970, executed and delivered between the
Company and TCB, as Trustee, (y) Letters of Credit, or (z) obligations of the
Company under the Enhancement Agreements. In no event shall any unfunded
commitment extended by Provident in the ordinary course of its business of
extending financing to the death care industry be considered an Assurance and
the loans and advances made by Provident pursuant to any such commitment shall
constitute investments and not Assurances. The amount of any Assurance shall be
equal to the outstanding amount of the obligation directly or indirectly
guaranteed (to the full extent of the obligation in respect of which such
Assurance is given or the maximum liability in respect of such Assurance of the
Person giving the same, whichever shall be less).
"Assured Obligation" means, as to any Person, any amount guaranteed or
otherwise supported by such Person pursuant to an Assurance.
"Bank of America" means Bank of America National Trust and Savings
Association.
"Banks" has the meaning specified in the introduction to this
Agreement.
"Board" means the Board of Governors of the Federal Reserve System of
the United States.
"Borrowers" means the Company and the Borrowing Subsidiaries.
"Borrowing" means a Loan or group of Loans of a single Type made by
the Banks (or, in the case of a Competitive Borrowing, by the Bank or Banks
whose Competitive Bids have been accepted pursuant to Section 2.03) on a single
date and as to which a single Interest Period is in effect.
"Borrowing Date" means, with respect to each Borrowing made pursuant
to Section 2.03 or Section 2.04, the Business Day upon which the proceeds of
such Borrowing are to be made available to a Borrower.
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"Borrowing Subsidiary" means any Wholly-owned Subsidiary of the
Company (other than an Inactive Subsidiary) designated as a Borrowing Subsidiary
by the Company pursuant to Section 2.22.
"Borrowing Subsidiary Counterpart" has the meaning specified in
Section 2.22.
"Business Day" means any day other than a Saturday, Sunday or legal
holiday in the State of New York or Texas or other day on which banks in New
York City or in Houston, Texas are required or authorized by law to close;
provided, however, that, when used in connection with a Eurodollar Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease" means, as to any Person, any lease in respect of which
the obligations of such Person constitute Capitalized Lease Obligations.
"Capitalized Lease Obligations" means, as to any Person, all lease
obligations which shall have been or should be, in accordance with GAAP,
capitalized on the books of such Person.
"Chase" means The Chase Manhattan Bank, a New York banking corporation
and the successor to Chemical Bank, a New York banking corporation.
"Co-Agents" has the meaning specified in the introduction to this
Agreement.
"Code" means the Internal Revenue Code of 1986 and the regulations
promulgated thereunder.
"Commitment" means, with respect to each Bank, the amount set forth
beneath the name of such Bank on the signature pages hereof (or, as to any
Person that becomes a Bank after the Execution Date, on the signature page of
the Assignment and Acceptance executed by such Person), as such amount may be
permanently terminated or reduced from time to time pursuant to Section 2.12,
Section 2.14, Section 2.15 or Section 9.11, and as such amount may be increased
from time to time by assignment or assumption pursuant to Section 2.14, Section
2.15 or Section 9.11. The Commitment of each Bank shall automatically and
permanently terminate on the Maturity Date.
"Committed Borrowing" means a borrowing consisting of concurrent
Committed Loans from each of the Banks pursuant to Section 2.04 distributed
ratably among the Banks in accordance with their respective Commitments or
resulting from a conversion or continuation of an existing Committed Borrowing
pursuant to Section 2.06.
"Committed Borrowing Request" has the meaning specified in Section
2.04.
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"Committed Loans" means the revolving loans made by the Banks to the
Company pursuant to Section 2.04. Each Committed Loan shall be a Eurodollar
Committed Loan or an ABR Loan.
"Communications" has the meaning specified in Section 9.02.
"Company" has the meaning specified in the introduction to this
Agreement.
"Company Financials" has the meaning specified in Section 4.07.
"Competitive Bid" means an offer by a Bank to make a Competitive Loan
pursuant to Section 2.03.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Bank
pursuant to Section 2.03(b), (i) in the case of a Eurodollar Competitive Loan,
the Margin (which will be added to or subtracted from the IBO Rate), and (ii) in
the case of a Fixed Rate Loan, the fixed rate of interest, in each case, offered
by the Bank making such Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids made
pursuant to Section 2.03 in the form of Exhibit 2.03A.
"Competitive Borrowing" means a borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from each Bank whose Competitive Bid as all
or as a part of such borrowing, as the case may be, has been accepted by a
Borrower under the bidding procedure described in Section 2.03.
"Competitive Loan" means a Loan from a Bank to a Borrower pursuant to
the bidding procedure described in Section 2.03, and shall be either a
Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated Assets" means, as to any Person, total consolidated
assets (including assets subject to Capital Leases) of such Person and of its
Consolidated Subsidiaries, as determined in accordance with GAAP.
"Consolidated Debt" means the Debt of the Company and its Consolidated
Subsidiaries.
"Consolidated Net Income" means consolidated net income (after taxes)
of the Company and its Consolidated Subsidiaries determined in accordance with
GAAP.
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"Consolidated Subsidiary" means, with respect to any Person, each
Subsidiary of such Person the accounts of which are or should be consolidated
with the accounts of such Person in reporting the consolidated financial
statements of such Person in accordance with GAAP.
"Debt" means, when used with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred purchase
price of property or services (excluding, however, Letter of Credit Obligations
of such Person), (b) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property), (c) all Capitalized Lease Obligations of such Person, (d) all
obligations of such Person in respect of interest rate protection agreements,
foreign currency exchange agreements or other similar agreements and
arrangements (the amount of any such obligation to be the amount that would be
payable upon the acceleration, termination or liquidation thereof), (e)
liabilities in respect of unfunded vested benefits under Plans, and (f) all Debt
of such Person referred to in clause (a), (b) (c) or (d) above secured by (or
for which the holder of such Debt has an existing right, contingent or otherwise
to be secured by) any Lien upon or interest in property (including accounts and
general intangibles, as such terms are defined in the Uniform Commercial Code in
effect in the State of New York) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Debt. For purposes of
this Agreement, the term "Debt" shall exclude (i) Operating Lease Obligations
and (ii) obligations in respect of agreements and arrangements described in
clause (d) above to the extent (and only to the extent) such agreements and
arrangements are entered into to protect such Person and its Subsidiaries
against interest rate and exchange rate risks related to their respective
businesses, and not for speculative purposes.
"Default" means the occurrence of any event which with the giving of
notice or the passage of time or both could become an Event of Default.
"Document" has the meaning specified in Section 8.02.
"Dollars","dollars" and the symbol "$", without more, mean the lawful
currency of the United States of America.
"Domestic Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Domestic Lending Office" on such Bank's signature
page to this Agreement or, as to any Person who becomes a Bank after the
Execution Date, on the signature page of the Assignment and Acceptance executed
by such Person or such other office of such Bank as such Bank may hereafter
designate from time to time as its "Domestic Lending Office" by notice to the
Company and the Administrative Agent.
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"Effective Date" means the date on which the conditions to borrowing
set forth in Article III are first met.
"Eligible Assignee" means (a) any Bank or any Affiliate of a Bank; (b)
a commercial bank organized or licensed under the laws of the United States, or
any state thereof, and having total assets in excess of $1,000,000,000; (c) a
commercial bank organized under the laws of any other country which is a member
of the OECD, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000; provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any country
which is a member of the OECD; and (e) any other lender approved by the
Administrative Agent and the Company (which approval shall not be unreasonably
withheld).
"Enforcement Subsidiary" means, as to Provident, any Wholly-owned
Subsidiary formed by Provident for the purpose of foreclosing or otherwise
realizing upon the assets securing obligations due to Provident pursuant to
investments made by Provident.
"Enhancement Agreements" means the Support Agreements, the Inducement
Agreement and all other similar agreements.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Group" means all corporations, trades or businesses (whether or
not incorporated) and other Persons which, together with the Company, are
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D.
"Eurodollar Borrowing" means a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Committed Borrowing" means any Committed Borrowing
comprised of Eurodollar Loans.
"Eurodollar Committed Loan" means any Committed Loan bearing interest
at a rate determined by reference to the IBO Rate in accordance with the
provisions of Article II.
"Eurodollar Competitive Loan" means any Competitive Loan bearing
interest at a rate determined by reference to the IBO Rate in accordance with
the provisions of Article II.
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"Eurodollar Lending Office" means, with respect to each Bank, the
branch or Affiliate of such Bank which such Bank has designated as its
"Eurodollar Lending Office" on such Bank's signature page to this Agreement or,
as to any Person who becomes a Bank after the Execution Date, on the signature
page of the Assignment and Acceptance executed by such Person or such other
office of such Bank as such Bank may hereafter designate from time to time as
its "Eurodollar Lending Office" by notice to the Company and the Administrative
Agent.
"Eurodollar Loan" means any Eurodollar Competitive Loan or any
Eurodollar Committed Loan.
"Event of Default" means any of the events described in Article VI.
"Execution Date" means the earliest date upon which all of the
following shall have occurred: counterparts of this Agreement shall have been
executed by the Company, each Bank and the Administrative Agent, and the
Administrative Agent shall have received counterparts hereof which taken
together, bear the signatures of the Company and each Bank.
"Existing Agreements" means (a) the Competitive Advance and Revolving
Credit Facility Agreement (Facility A) dated as of June 30, 1995 among the
Company, the banks and other financial institutions party thereto, Bank of
America and NationsBank, as co-agents, Chase, as auction administration agent,
and TCB, as administrative agent, as amended from time to time to the date
hereof, and (b) the Existing Facility B Credit Agreement.
"Existing Facility B Credit Agreement" means the Competitive Advance
and Revolving Credit Facility Agreement (Facility B) dated as of June 30, 1995
among the Company, the other Borrowers (as defined therein), the banks and other
financial institutions party thereto, Bank of America and NationsBank, as
co-agents, Chase, as auction administration agent, and TCB, as administrative
agent, together with (a) the Sterling Addendum dated as of July 13, 1995 among
the Company, Family Funeral Directors Limited, the local lenders party thereto
and Chemical Investment Bank Limited, as local currency agent for such local
lenders, (b) the Australian Addendum dated as of July 13, 1995 among the
Company, Service Corporation International Australia Pty Limited, the local
lenders party thereto and Westpac Banking Corporation, as local currency agent
for such local lenders and (c) the Canadian Addendum dated as of August 30, 1995
among the Company, 611102 Saskatchewan Ltd., the local lenders party thereto and
Royal Bank of Canada, as local currency agent for such local lenders.
"Existing Termination Date" has the meaning specified in Section 2.21.
"Extended Termination Date" means, as at any date, the date to which
the Termination Date has then most recently been extended pursuant to Section
2.21.
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"Facility B Credit Agreement" means the Competitive Advance and
Revolving Credit Facility Agreement (Facility B) dated as of the date hereof
among the Company, the Initial Borrowing Subsidiaries (as defined therein),
other Borrowing Subsidiaries that may become parties thereto, the banks and
other financial institutions party thereto, Chase, as administrative agent, and
the Co-Agents (as defined therein).
"Facility Fees" has the meaning specified in Section 2.07(a).
"FDIC" means the Federal Deposit Insurance Corporation (or any
successor thereto).
"Federal Funds Effective Rate" has the meaning specified in the
definition of the term Alternate Base Rate.
"Financial Provisions" has the meaning specified in Section 1.02(e).
"Fixed Rate Borrowing" means a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" means any Competitive Loan bearing interest at a
fixed percentage rate per annum specified by the Bank making such Loan in its
Competitive Bid.
"FST" means SCI Texas Funeral Services, Inc., a Texas corporation.
"Funded Debt" means any Debt of any Person (including any Capitalized
Lease Obligation of such Person, but not including any deferred taxes) payable
more than one year from the date of the creation thereof; provided, however, the
term Funded Debt shall include the principal amount of all Loans outstanding
under this Agreement and the principal amount of all loans outstanding under the
Facility B Credit Agreement. The interests of minority shareholders in such
Person's Consolidated Subsidiaries which are shown on the liability side of a
balance sheet as "minority interests" but which are not "obligations" are not
within the definition of "Funded Debt."
"GAAP" means generally accepted accounting principles as set forth in
the opinions, statements and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, the Financial
Accounting Standards Board and such other Persons as shall be approved by a
significant segment of the accounting profession and concurred in by the
independent certified public accountants certifying any audited financial
statements of the Company, as such principles shall be in effect at the time of
any computation or determination or as of the date of the relevant financial
statements, as the case may be (the "Relevant Date"), subject to Section 1.02.
"Guaranteed Obligations" has the meaning specified in Section 8.01.
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"Guaranty" means the guaranty of the Company contained in Article
VIII.
"Highest Lawful Rate" means, as to any Bank, at the particular time in
question, the maximum nonusurious rate of interest which, under applicable law,
such Bank is then permitted to charge the Borrowers on the Loans. If the maximum
rate of interest which, under applicable law, the Banks are permitted to charge
the Borrowers on the Loans shall change after the date hereof, to the extent
permitted by applicable law, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, as of the effective time of such
change without notice to any Borrower or any other Person.
"IBO Rate" means, with respect to each date during each Interest
Period pertaining to a Eurodollar Borrowing (other than an Interest Period of 14
days), the rate appearing on page 3750 of the Dow ▇▇▇▇▇ Markets (or on any
successor or substitute page, or any page of any successor to or substitute for
Dow ▇▇▇▇▇ Markets, providing rate quotations comparable to those currently
provided on such page, as determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates applicable to
deposits in Dollars in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for deposits in Dollars approximately equal in principal
amount to such Eurodollar Borrowing and with a maturity equal to such Interest
Period. In the event that such rate is not available at such time for any
reason, and in the case of an Interest Period of 14 days, then the "IBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate (rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%,
the next higher 1/16 of 1%) at which deposits in Dollars approximately equal in
principal amount to such Eurodollar Borrowing and with a maturity equal to such
Interest Period are offered in immediately available funds to the Administrative
Agent by leading banks in the London interbank market at approximately 11:00
a.m., London time (or as soon thereafter as possible), two Business Days prior
to the commencement of such Interest Period.
"Inactive Subsidiaries" means Subsidiaries of the Company which are
not actively engaged in the conduct of business and whose assets and/or
Liabilities are not material to the financial condition of the Company and its
Subsidiaries taken as a whole.
"Index Debt" means the Company's senior, unsecured, non-credit
enhanced Funded Debt.
"Inducement Agreement" means, collectively, the letter agreement dated
August 23, 1993 among the Company, PSI Funding, Inc. and FST and the letter
agreement dated April 5, 1993 among the Company, TCB and Provident.
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"Intangibles" has the meaning normally ascribed thereto in accordance
with GAAP and shall include (a) excess cost over fair market value of tangible
assets acquired, (b) patents and patent rights, (c) trademarks, service marks
and trade names, (d) copyrights and (e) goodwill.
"Interest Payment Date" means (a) with respect to any Eurodollar Loan
or ABR Loan, the last day of the Interest Period applicable thereto and, in
addition, the date on which such Loan is repaid or prepaid and, in the case of a
Eurodollar Loan with an Interest Period of 6 months, the day that would have
been the Interest Payment Date for such Loan had an Interest Period of 3 months
been applicable to such Loan and (b) in the case of a Fixed Rate Loan, the last
day of the Interest Period applicable thereto.
"Interest Period" means:
(a) with respect to any Committed Borrowing:
(i) If such Committed Borrowing is a Eurodollar Committed
Borrowing, (A) the period commencing on the Borrowing Date of such
Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as the case may be, and ending
(A) 14 days thereafter (subject to market availability) or (B) on the
numerically corresponding day (or if there is no corresponding day,
the last day) in the calendar month that is one, two, three or six
months thereafter, as a Borrower may elect; and
(ii) If such Committed Borrowing is an ABR Borrowing, the period
commencing on the Borrowing Date of such Borrowing and ending on the
earliest of (A) the next succeeding March 31, June 30, September 30 or
December 31, and (B) the Maturity Date.
(b) with respect to any Competitive Borrowing:
(i) If such Competitive Borrowing is a Fixed Rate Borrowing, the
period commencing on the Borrowing Date of such Borrowing and ending
on the date specified in the Competitive Bid in which the offer to
make such Fixed Rate Borrowing was extended; provided, however, that
each such period shall have a duration of not less than seven calendar
days nor more than 180 days; and
(ii) If such Competitive Borrowing is a Eurodollar Borrowing, the
period commencing on the Borrowing Date of such Borrowing and ending
on the numerically corresponding date (or if there is no corresponding
date, the last day ) in the calendar month that is one, two, three or
six months thereafter, as a Borrower may elect.
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Notwithstanding the foregoing, (i) if any Interest Period would end on a day
which shall not be a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, with respect to Eurodollar Loans only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day, (ii) no
Interest Period may be selected for any Competitive Borrowing that ends later
than the Existing Termination Date and (iii) no Interest Period may be selected
for any Committed Borrowing that ends later than the Maturity Date. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Judgment Currency" has the meaning specified in Section 9.17.
"Letter of Credit Obligations" means, when used with respect to any
Person, the contingent obligations of such Person in respect of Letters of
Credit.
"Letters of Credit" means, as to any Person, letters of credit issued
for the account of such Person other than letters of credit issued to pay the
purchase price of goods or services acquired in the ordinary course of business
by such Person or any other Person.
"Liabilities" of any Person has the meaning normally ascribed thereto
in accordance with GAAP and shall include (a) Capitalized Lease Obligations of
such Person or any of its Subsidiaries, (b) the interests of minority
shareholders in Consolidated Subsidiaries of such Person, (c) indebtedness
secured by Liens against any property of such Person or any of its Subsidiaries
whether or not such Person or such Subsidiary is liable for the payment thereof,
(d) subordinated debt and (e) deferred liabilities.
"Lien" means, when used with respect to any Person, any mortgage,
lien, charge, pledge, security interest or encumbrance of any kind (whether
voluntary or involuntary and whether imposed or created by operation of law or
otherwise) upon, or pledge of, any of its property or assets, whether now owned
or hereafter acquired, or any lease intended as security, any conditional sale
agreement, or any other title retention agreement.
"Loan" means a Competitive Loan, a Committed Loan, a Eurodollar Loan,
a Fixed Rate Loan or an ABR Loan.
"Majority Banks" means, at any time, Banks holding at least 66 2/3% of
the Total Commitment or (if either the Total Commitment has been terminated or
"Majority Banks" is being determined for purposes of Article VI) Banks holding
at least 66 2/3% of the then aggregate unpaid principal amount of the
outstanding Loans.
"Margin" means, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be
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added to or subtracted from the IBO Rate in order to determine the interest rate
applicable to such Loan, as specified in the Competitive Bid relating to such
Loan.
"Margin Stock" has the meaning specified in Section 4.13.
"Material Subsidiary" means, with respect to any Person, each
Subsidiary of such Person that would be a "significant subsidiary" as such term
is defined in Regulation S-X promulgated pursuant to the Securities Exchange Act
of 1934 as amended to the Effective Date; provided, however, for purposes of
determining whether any Subsidiary is a "Material Subsidiary," the reference to
"10 percent" in clauses (1), (2) and (3) of the definition of "significant
subsidiary" contained in said Regulation S-X shall be a reference to 5 percent;
and further provided, however, notwithstanding the foregoing, when used with
respect to the Company, each Borrowing Subsidiary shall be a Material Subsidiary
of the Company.
"Maturity Date" means the Existing Termination Date or, as to any
Committed Borrowing which shall be outstanding on such date, the second
anniversary of the Existing Termination Date.
"Maximum Permissible Rate" has the meaning specified in Section 9.08.
"Moody's" means ▇▇▇▇▇'▇ Investors Service.
"NationsBank" means NationsBank, N.A., a national banking association.
"Net Worth" means, in relation to the Company and its Subsidiaries,
Consolidated Assets of the Company less total consolidated liabilities of the
Company and its Consolidated Subsidiaries, as determined in accordance with
GAAP.
"Notice of Extension" has the meaning specified in Section 2.21.
"Notice of Revocation" has the meaning specified in Section 2.21.
"OECD" means the Organization for Economic Cooperation and Development
(or any successor).
"Officer's Certificate" means, as to any Borrower, a certificate
signed in the name of such Borrower by its President, one of its Vice
Presidents, its Treasurer, its Secretary or one of its Assistant Treasurers or
Assistant Secretaries.
"Operating Lease Obligations" means obligations of a Person in respect
of any lease or agreement to lease other than Capitalized Lease Obligations of
such Person.
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"Original Termination Date" means June 26, 1998.
"Other Activities" has the meaning specified in Section 7.03.
"Other Financings" has the meaning specified in Section 7.03.
"Other Taxes" has the meaning specified in Section 2.20.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to all or any of its functions under ERISA.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a foreign state or
political subdivision thereof or any agency of such state or subdivision.
"Plan" means any employee pension benefit plan maintained or
contributed to by the Company or any of its Subsidiaries or by any trade or
business (whether or not incorporated) under common control (as defined in
Section 4001(a)(14) or 4001(b) of ERISA) with the Company and insured by the
PBGC under Title IV of ERISA.
"Prime Rate" has the meaning specified in the definition of the term
Alternate Base Rate.
"Principal Office" means the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other office as
the Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"Provident" means Provident Services, Inc., a Delaware corporation.
"Register" has the meaning specified in Section 9.11(e).
"Regulation A" means Regulation A of the Board (respecting loans to
depository institutions), as the same is from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
"Regulation G" means Regulation G of the Board (respecting margin
credit extended by Persons other than banks or registered broker dealers), as
the same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
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"Regulation D" means Regulation D of the Board (respecting reserve
requirements), as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board (respecting margin
credit extended by banks), as the same is from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board (respecting borrowers
who obtain margin credit), as the same is from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
"Relevant Date" has the meaning specified in the definition of the
term GAAP.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Subsidiary" means, with respect to any Person, any corporation in
which more than 50% of the stock of each class having ordinary voting power
shall, at the time as of which any determination is being made, be owned of
record and beneficially by such Person directly and/or through one or more other
Subsidiaries.
"Substantially-owned Subsidiary" means a Subsidiary of the Company at
least 80% of the outstanding capital stock of which, at the time any
determination is being made, is owned of record and beneficially by the Company
directly and/or through one or more other Subsidiaries.
"Support Agreements" means (a) the Support Agreement dated as of
September 14, 1988 between the Company and Provident, (b) the Australian Support
Agreement dated as of November 1, 1993 between the Company and Service
Corporation International Australia Pty Limited and (c) the three Support
Agreements dated respectively as of January 28, 1994, September 30, 1994 and
November 14, 1994, each between the Company and FST.
"Tangible Consolidated Assets" means, as to any Person, Consolidated
Assets less all Intangibles of such Person and its Consolidated Subsidiaries.
"Taxes" has the meaning specified in Section 2.20.
"TCB" means Texas Commerce Bank National Association, a national
banking association.
"Termination Date" means, except as expressly provided in Section
2.21(d) and Section 2.21(e), at any time, the Original Termination Date or an
Extended Termination Date, as the
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case may be or, in either case, the earlier date of termination in whole of the
Total Commitment pursuant to Section 2.12 or Section 6.01.
"Total Capitalization" means, as of the date any determination is
made, the sum of Net Worth plus Consolidated Debt.
"Total Commitment" means, at any time, the aggregate amount of the
Banks' Commitments, as in effect at such time.
"Type" means, when used in respect of any Loan or Borrowing, each of
the following types of Loans or Borrowings as applicable: Eurodollar Loan or
Eurodollar Borrowing, ABR Loan or ABR Borrowing and Fixed Rate Loan or Fixed
Rate Borrowing.
"United States" and "U.S." each means United States of America.
"Wholly-owned Subsidiary" means, as to any Person, a Subsidiary, 100%
of the stock of every class of which (except for directors' qualifying shares)
at the time as of which any determination is being made, is owned of record and
beneficially by such Person directly and/or through one or more other
Subsidiaries.
SECTION 1.02. Accounting Terms and Determinations.
(a) Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP.
(b) If any change in GAAP after the date of this Agreement shall be
required to be applied to transactions then or thereafter in existence, and a
violation of or default under one or more provisions of this Agreement shall
have occurred or in the opinion of the Company would likely occur which would
not have occurred or be likely to occur if no change in accounting principles
had taken place:
(i) the parties agree that such violation or default shall not
constitute an Event of Default or a Default for a period of 60 days from
the date the Company notifies the Administrative Agent of the application
of this Section 1.02(b) identifying such change and the provisions of this
Agreement affected thereby;
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(ii) the parties agree in such event to negotiate in good faith an
amendment of this Agreement which shall approximate to the extent possible
the economic effect of the original financial covenants after taking into
account such change in GAAP; and
(iii) if the parties are unable to agree on such an amendment within
such 60-day period, the Company shall have the option of (A) prepaying the
Loans (pursuant to Section 2.13 and the other applicable provisions hereof)
within 120 days from the date the Company notifies the Administrative Agent
of the application of this Section 1.02(b) or (B) making all future
calculations by application of GAAP applied on a basis consistent with
those in effect immediately prior to such change in GAAP. If the Company
does not exercise either such option within said period by written notice
to the Administrative Agent, then as used in this Agreement, "GAAP" shall
mean generally accepted accounting principles in effect at the Relevant
Date.
(c) If any change in GAAP after the date of this Agreement shall be
required to be applied to transactions or conditions then or thereafter in
existence, and the Administrative Agent shall assert that the effect of such
change is or shall likely be to distort materially the effect of any of the
definitions of financial terms in Article I or any of the financial covenants of
the Company in Article V (the "Financial Provisions"), so that the intended
economic effect of any of the Financial Provisions will not in fact be
accomplished:
(i) the Administrative Agent shall notify the Company of such
assertion, specifying the change in GAAP which is objected to, and until
otherwise determined as provided below, the specified change in GAAP shall
not be made by the Company in its financial statements for the purpose of
applying the Financial Provisions; and
(ii) the parties shall follow the procedures set forth in paragraph
(ii) and the first sentence of paragraph (iii) of subsection (b) of this
Section 1.02. If the parties are unable to agree on an amendment as
provided in said paragraph (ii) and if the Company does not exercise the
option set forth in the first sentence of said paragraph (iii) within the
specified period, then as used in this Agreement "GAAP" shall mean
generally accepted accounting principles in effect at the Relevant Date,
except that the specified change in GAAP which is objected to by the
Administrative Agent shall not be made in applying the Financial
Provisions.
SECTION 1.03. Interpretation. (a) In this Agreement, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes each other gender;
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(iii) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(iv) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually,
provided that nothing in this clause (iv) is intended to authorize any
assignment not otherwise permitted by this Agreement;
(v) reference to any agreement, document or instrument, including
this Agreement, means such agreement, document or instrument as amended,
supplemented or modified and in effect from time to time in accordance with
the terms thereof and, if applicable, the terms hereof;
(vi) unless the context indicates otherwise, reference to any
Article, Section, Schedule or Exhibit means such Article or Section hereof
or such Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning "include")
means including, without limiting the generality of any description
preceding such term;
(viii) with respect to the determination of any period of time, the
word "from" means "from and including" and the word "to" means "to but
excluding"; and
(ix) reference to any law means such as amended, modified, codified
or reenacted, in whole or in part, and in effect from time to time.
(b) The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
(c) No provision of this Agreement shall be interpreted or construed
against any Person solely because that Person or its legal representative
drafted such provision.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Committed Loans to the Borrowers, at
any time and from time to time on and after the Effective Date and until the
Termination Date in an aggregate principal amount at any time
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outstanding not to exceed such Bank's Commitment minus the amount by which the
Competitive Loans outstanding at such time shall be deemed to have used such
Commitment pursuant to Section 2.17, subject, however, to the conditions that
(i) at no time shall (A) the sum of (x) the outstanding aggregate principal
amount of all Committed Loans plus (y) the outstanding aggregate principal
amount of all Competitive Loans exceed (B) the Total Commitment and (ii) at all
times the outstanding aggregate principal amount of all Committed Loans made by
each Bank shall equal the product of (A) the percentage which its Commitment
represents of the Total Commitment times (B) the outstanding aggregate principal
amount of all Committed Loans made pursuant to Section 2.04. Each Bank's
Commitment, as in effect on the Execution Date, is set forth opposite its name
on the signature page hereto for such Bank. Such Commitments may be terminated
or reduced from time to time pursuant to Section 2.12.
(b) Within the foregoing limits and subject to the terms, conditions
and limitations set forth herein, the Borrowers may borrow, pay or prepay and
reborrow hereunder, on and after the Effective Date and prior to the Termination
Date.
SECTION 2.02. Loans. (a) Each Committed Loan shall be made as part of
a Borrowing consisting of Loans made by the Banks ratably in accordance with
their Commitments; provided, however, that the failure of any Bank to make any
Committed Loan shall not in itself relieve any other Bank of its obligation to
lend hereunder (it being understood, however, that no Bank shall be responsible
for the failure of any other Bank to make any Loan required to be made by such
other Bank). Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.03. The Committed Loans or Competitive Loans
comprising any Borrowing shall be (i) in the case of Competitive Loans, in an
aggregate principal amount which is an integral multiple of $1,000,000 and not
less than $5,000,000, subject to the proviso at the end of Section 2.03(d), and
(ii) in the case of Committed Loans, in an aggregate principal amount which is
an integral multiple of $1,000,000 and not less than $5,000,000 (or an aggregate
principal amount equal to the remaining balance of the available Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Committed Borrowing
shall be comprised entirely of Eurodollar Committed Loans or ABR Loans, as a
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each Bank
may at its option make any Eurodollar Loan by causing its Eurodollar Lending
Office to make such Loan; provided that any exercise of such option shall not
affect the obligation of any Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that no Borrower shall be entitled to request
any Borrowing which, if made, would result in an aggregate of more than ten
separate Committed Loans of any Bank to the Borrowers being outstanding
hereunder at any one time. For purposes of the foregoing, Loans having different
Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Loans.
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(c) Subject to Section 2.05, each Bank shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Administrative Agent in New York City, not later than
12:30 p.m., New York City time, and the Administrative Agent shall by 3:00 p.m.,
New York City time, credit the amounts so received to the general deposit
account of the Company with the Administrative Agent or, if a Borrowing shall
not occur on such date because any condition precedent herein specified shall
not have been met, return the amounts so received to the respective Banks.
Competitive Loans shall be made by the Bank or Banks whose Competitive Bids
therefor are accepted pursuant to Section 2.03 in the amounts so accepted and
Committed Loans shall be made by the Banks pro rata in accordance with Section
2.17. Unless the Administrative Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's portion of such Borrowing, the Administrative
Agent may assume that such Bank has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with this
Section 2.02(c) and the Administrative Agent may, in reliance upon such
assumption, make available to the requesting Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have made
such portion available to the Administrative Agent, such Bank and the requesting
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of such
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Bank, the Federal Funds Effective Rate.
If such Bank shall repay to the Administrative Agent such corresponding amount,
such amount shall constitute such Bank's Loan as part of such Borrowing for
purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request any Borrowing pursuant to Section 2.03 or Section
2.04 if the Interest Period requested with respect thereto would end after the
Termination Date (in the case of Competitive Loans) or the Maturity Date (in the
case of Committed Loans).
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, a Borrower shall hand deliver or send by facsimile
transmission to the Administrative Agent a duly completed Competitive Bid
Request, to be received by the Administrative Agent (i) in the case of a
Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City time,
five Business Days before the Borrowing Date specified for a proposed
Competitive Borrowing, and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the Borrowing Date
specified for a proposed Competitive Borrowing. No Committed Loan shall be
requested in or made pursuant to a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit 2.03(A) may
be rejected at the Administrative Agent's sole discretion (to the extent
permitted by law), and the Administrative Agent shall promptly notify the
Borrower requesting such Competitive Bid of such rejection by facsimile
transmission. Each Competitive Bid Request shall in each case refer to this
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Agreement and specify (x) whether the Competitive Borrowing then being requested
is to be a Eurodollar Competitive Borrowing or a Fixed Rate Borrowing, (y) the
Borrowing Date of such Competitive Borrowing (which shall be a Business Day) and
the aggregate principal amount thereof (which shall be in a minimum principal
amount of $5,000,000 and in an integral multiple of $1,000,000), and (z) the
Interest Period with respect thereto. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Administrative
Agent shall invite by facsimile transmission (in substantially the form set
forth in Exhibit 2.03(B)) the Banks to bid, on the terms and conditions of this
Agreement, to make Competitive Loans pursuant to such Competitive Bid Request.
Notwithstanding the foregoing, the Administrative Agent shall have no obligation
to invite any Bank to make a Competitive Bid pursuant to this Section 2.02(a)
until such Bank has delivered a properly completed Administrative Questionnaire
to the Administrative Agent.
(b) On and after the Effective Date, each Bank may, in its sole
discretion, make one or more Competitive Bids responsive to each Competitive Bid
Request of a Borrower. Each Competitive Bid by a Bank must be received by the
Administrative Agent via facsimile transmission, in the form of Exhibit 2.03(C),
(i) in the case of a Eurodollar Competitive Borrowing, not later than 2:00 p.m.,
New York City time, four Business Days before the Borrowing Date specified for a
proposed Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing,
not later than 10:00 a.m., New York City time, on the Borrowing Date specified
for a proposed Competitive Borrowing. Competitive Bids that do not conform
substantially to the format of Exhibit 2.03(C) may be rejected by the
Administrative Agent after conferring with, and upon the instruction of, the
Borrower requesting such Competitive Bid, and the Administrative Agent shall
notify the applicable Bank of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and (x) specify the principal
amount (which shall be in a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000 and which may equal the entire aggregate
principal amount of the Competitive Borrowing requested by the Borrower
requesting such Competitive Bid, irrespective of such Bank's Commitment) of the
Competitive Loan that the applicable Bank is willing to make to such Borrower,
(y) specify the Competitive Bid Rate or Rates at which such Bank is prepared to
make the Competitive Loan or Loans and (z) confirm the Interest Period with
respect thereto specified by such Borrower in its Competitive Bid Request. If
any Bank shall elect not to make a Competitive Bid, such Bank shall so notify
the Administrative Agent by facsimile transmission (A) in the case of Eurodollar
Competitive Loans, not later than 2:00 p.m., New York City time, four Business
Days before the Borrowing Date specified for a proposed Competitive Borrowing,
and (B) in the case of Fixed Rate Loans, not later than 10:00 a.m., New York
City time, on the Borrowing Date specified for a proposed Competitive Borrowing;
provided, however, that failure by any Bank to give such notice shall not cause
such Bank to be obligated to make any Competitive Loan as part of such
Competitive Borrowing or subject such Bank to any other liability hereunder. A
Competitive Bid submitted by a Bank pursuant to this paragraph (b) shall be
irrevocable.
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(c) The Administrative Agent shall promptly notify the Borrower
requesting such Competitive Bid by facsimile transmission of all the Competitive
Bids made, the Competitive Bid Rate and the maximum principal amount of each
Competitive Loan in respect of which a Competitive Bid was made and the identity
of the Bank that made each such Competitive Bid. The Administrative Agent shall
send a copy of all Competitive Bids to such Borrower for its records as soon as
practicable after completion of the bidding process set forth in this Section
2.03.
(d) A Borrower may in its sole and absolute discretion, subject only
to the provisions of this Section 2.03(d), accept or reject any Competitive Bid
referred to in Section 2.03(c). Such Borrower shall notify the Administrative
Agent by telephone, confirmed by facsimile transmission, whether and to what
extent it has decided to accept or reject any or all of the Competitive Bids
referred to in Section 2.03(c), (i) in the case of a Eurodollar Competitive
Borrowing, not later than 10:00 a.m., New York City time, three Business Days
before the Borrowing Date specified for a proposed Competitive Borrowing and
(ii) in the case of a Fixed Rate Borrowing, not later than noon, New York City
time, on the Borrowing Date specified for a proposed Competitive Borrowing,
provided, however, (A) the failure by a Borrower to accept or reject any
Competitive Bid referred to in Section 2.03(c) shall be deemed to be a rejection
of such Competitive Bid, (B) no Borrower shall accept a Competitive Bid made at
a particular Competitive Bid Rate if such Borrower has decided to reject a
Competitive Bid made at a lower Competitive Bid Rate, (C) the aggregate amount
of the Competitive Bids accepted by a Borrower shall not exceed the principal
amount specified in the related Competitive Bid Request, (D) if a Borrower shall
accept a Competitive Bid or Bids made at a particular Competitive Bid Rate but
the amount of such Competitive Bid or Bids shall cause the total amount of
Competitive Bids to be accepted by such Borrower to exceed the amount specified
in the Competitive Bid Request, then such Borrower shall accept a portion of
such Competitive Bid or Bids in an amount equal to the amount specified in the
Competitive Bid Request less the amount of all other Competitive Bids accepted
with respect to such Competitive Bid Request, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid at such Competitive
Bid Rate, and (E) except pursuant to clause (D) above, no Competitive Bid shall
be accepted for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000; provided
further, however, that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (D) above, such Competitive Loan
may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances or portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (D) the
amounts shall be rounded to integral multiples of $1,000,000 in a manner which
shall be in the discretion of such Borrower. A notice given by a Borrower
pursuant to this Section 2.03(d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each Bank making a
Competitive Bid whether or not its Competitive Bid or corresponding Competitive
Bids have been accepted (and if so, in what amount and at what Competitive Bid
Rate) by facsimile transmission
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sent by the Administrative Agent, and each successful bidder will thereupon
become bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
After completing the notifications referred to in the immediately preceding
sentence, the Administrative Agent shall notify each Bank of the aggregate
principal amount of all Competitive Bids accepted.
(f) The Administrative Agent shall notify each Bank of (i) the IBO
Rate applicable to any Eurodollar Competitive Loan to be made by such Bank
pursuant to a Competitive Bid that has been accepted by a Borrower pursuant to
Section 2.03(d), and (ii) the sum of the applicable IBO Rate plus the Margin bid
by such Bank.
(g) A Competitive Bid Request shall not be made within five Business
Days of the date after the date of any previous Competitive Bid Request, unless
the Company and the Administrative Agent shall mutually agree otherwise and
notice of such agreement shall have been given to the Banks.
(h) If the Administrative Agent or any Affiliate of the Administrative
Agent shall at any time be a Bank with a Commitment hereunder and shall elect to
submit a Competitive Bid in its capacity as a Bank, it shall submit such
Competitive Bid directly to the Borrower requesting such Competitive Bid one
quarter of an hour earlier than the latest time at which the other Banks are
required to submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) above.
(i) All notices required by this Section 2.03 shall be given in
accordance with Section 9.02.
SECTION 2.04. Committed Borrowing Procedure. In order to effect a
Committed Borrowing, a Borrower shall give written notice (or telephone notice
promptly confirmed in writing) to the Administrative Agent, substantially in the
form of Exhibit 2.04 (a "Committed Borrowing Request"), (a) in the case of a
Eurodollar Committed Borrowing, not later than noon, New York City time, three
Business Days before the Borrowing Date specified for such proposed Committed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 11:00 a.m.,
New York City time, on the Borrowing Date specified for such proposed Committed
Borrowing. No Fixed Rate Loan or Eurodollar Competitive Loan shall be requested
or made pursuant to a Committed Borrowing Request. Such Committed Borrowing
Request shall be irrevocable and shall in each case refer to this Agreement and
specify (x) whether the Borrowing then being requested is to be a Eurodollar
Committed Borrowing or an ABR Borrowing, (y) the Borrowing Date of such
Borrowing (which shall be a Business Day) and the aggregate amount thereof
(which shall not be less than $5,000,000 and shall be an integral multiple of
$1,000,000) and (z) the Interest Period with respect thereto. If no election as
to the Type of Committed Borrowing is specified in any such notice, then the
requested Committed Borrowing shall be an ABR Borrowing. If no Interest Period
with respect to
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any Eurodollar Committed Borrowing is specified in any such Committed Borrowing
Request, then the Borrower making such request shall be deemed to have selected
an Interest Period of one month's duration. If a Borrower shall not have given
notice in accordance with this Section 2.04 of its election to refinance a
Committed Borrowing prior to the end of the Interest Period in effect for such
Borrowing, then such Borrower shall (unless such Borrowing is repaid at the end
of such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing. The Administrative Agent shall
promptly advise the Banks of any Committed Borrowing Request given pursuant to
this Section 2.04 and of each Bank's portion of the requested Committed
Borrowing by facsimile transmission.
SECTION 2.05. Refinancings. Each Borrower may refinance all or any
part of any of its Borrowings with a Borrowing of the same or a different Type
made pursuant to Section 2.03 or Section 2.04, subject to the conditions and
limitations set forth herein and elsewhere in this Agreement, including
refinancings of Competitive Borrowings with Committed Borrowings and of
Committed Borrowings with Competitive Borrowings. Any Borrowing or part thereof
so refinanced shall be deemed to be repaid in accordance with Section 2.08 with
the proceeds of a new Borrowing hereunder and the proceeds of the new Borrowing,
to the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Banks to the Administrative Agent or by the
Administrative Agent to the Borrower to which such Borrowing has been made
pursuant to Section 2.02(c); provided, however, that (a) if the principal amount
extended by a Bank in a refinancing is greater than the principal amount, if
any, extended by such Bank in the Borrowing being refinanced, then such Bank
shall pay such difference to the Administrative Agent for distribution to the
Banks described in clause (b) below, (b) if the principal amount extended by a
Bank in the Borrowing being refinanced is greater than the principal amount, if
any, being extended by such Bank in the refinancing, the Administrative Agent
shall return the difference to such Bank out of amounts received pursuant to
clause (a) above, (c) to the extent any Bank fails to pay the Administrative
Agent amounts due from it pursuant to clause (a) above, any Borrowing or portion
thereof being refinanced shall not be deemed repaid in accordance with Section
2.08 to the extent of such failure and such Borrower shall pay such amount to
the Administrative Agent pursuant to Section 2.08 and (d) to the extent such
Borrower fails to pay to the Administrative Agent any amounts due in accordance
with Section 2.08 as a result of the failure of a Bank to pay the Administrative
Agent any amounts due as described in clause (c) above, the portion of any
refinanced Borrowing deemed not repaid shall be deemed to be outstanding solely
to the Bank which has failed to pay the Administrative Agent amounts due from it
pursuant to clause (a) above to the full extent of such Bank's portion of such
refinanced Loan.
SECTION 2.06. Conversion and Continuation of Committed Borrowings.
Each Borrower shall have the right at any time upon prior irrevocable notice to
the Administrative Agent (a) not later than 8:30 a.m., New York City time, one
Business Day prior to conversion, to convert any Eurodollar Committed Borrowing
into an ABR Borrowing, (b) not later than noon, New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
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into a Eurodollar Committed Borrowing or to continue any Eurodollar Committed
Borrowing as a Eurodollar Committed Borrowing for an additional Interest Period
and (c) not later than 11:00 a.m., New York City time, three Business Days prior
to conversion, to convert the Interest Period with respect to any Eurodollar
Committed Borrowing to another permissible Interest Period, subject in each case
to the following:
(i) each conversion or continuation shall be made pro rata among the
Banks in accordance with the respective principal amounts of the Loans
comprising the converted or continued Committed Borrowing;
(ii) if less than all the outstanding principal amount of any
Committed Borrowing shall be converted or continued, the aggregate
principal amount of such Committed Borrowing converted or continued shall
be an integral multiple of $1,000,000 and not less than $5,000,000;
(iii) if any Eurodollar Committed Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, such Borrower
shall pay, upon demand, any amounts due to the Banks pursuant to Section
2.16;
(iv) any portion of a Committed Borrowing maturing or required to be
repaid in less than one month (or 14 days, if such an Interest Period is
available) may not be converted into or continued as a Eurodollar Committed
Borrowing;
(v) any portion of a Committed Borrowing which cannot be continued
as or converted into a Eurodollar Committed Borrowing by reason of clause
(iv) above shall be automatically converted into or continued as an ABR
Borrowing at the end of the Interest Period in effect for such Borrowing;
and
(vi) no Interest Period may be selected for any Eurodollar Committed
Borrowing that would end later than the Maturity Date.
Each notice pursuant to this Section 2.06 shall be irrevocable and shall refer
to this Agreement and specify (w) the identity and amount of the Committed
Borrowing that a Borrower requests be converted or continued, (x) whether such
Committed Borrowing is to be converted to or continued as a Eurodollar Committed
Borrowing or an ABR Borrowing, (y) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (z) if such
Committed Borrowing is to be converted to or continued as a Eurodollar Committed
Borrowing, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Committed Borrowing, a Borrower shall be deemed to have selected
an Interest Period of one month's duration. The Administrative Agent shall
promptly advise the other Banks of any notice given pursuant to this Section
2.06 and of each Bank's
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portion of any converted or continued Committed Borrowing. If a Borrower shall
not have given notice in accordance with this Section 2.06 to continue any
Committed Borrowing into a subsequent Interest Period (and shall not otherwise
have given notice in accordance with this Section 2.06 to convert such Committed
Borrowing), such Committed Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof), automatically
be converted into or continued as an ABR Borrowing.
SECTION 2.07. Fees. (a) The Company agrees to pay to each Bank,
through the Administrative Agent, (i) on each March 31, June 30, September 30
and December 31 from the Execution Date to the date on which the Commitment of
such Bank has been terminated and (ii) on the Maturity Date and on any other
date on which the Commitment of such Bank has been terminated, facility fees
(such facility fees being the "Facility Fees"), in immediately available funds,
equal to .06 of 1% of the amount of the Commitment of such Bank from time to
time outstanding, whether used, deemed used or unused, during the preceding
quarter (or shorter period commencing with the Execution Date and/or ending with
the Maturity Date).
(b) All Facility Fees shall be computed by the Administrative Agent on
the basis of the actual number of days elapsed in a year of 360 days, and such
computations, made in good faith, shall create rebuttable presumption that they
are accurate. The Facility Fees due to each Bank shall commence to accrue on the
Execution Date and shall cease to accrue on the earlier of the Maturity Date and
the termination of the Commitment of such Bank as provided herein.
(c) The Facility Fees due under this Section 2.07 shall be paid on the
date due, in immediately available funds, to the Administrative Agent for
distribution among the Banks.
(d) The Company agrees to pay to the Administrative Agent the fees as
provided in the Agent's Fee Letter.
(e) Notwithstanding the foregoing, in no event shall any Bank be
permitted to receive any compensation hereunder constituting interest in excess
of the Highest Lawful Rate.
SECTION 2.08. Repayment of Loans. (a) Each Borrower agrees to pay the
outstanding principal balance of each Loan (i) in the case of a Competitive
Loan, on the last day of the Interest Period applicable to such Loan and on the
Termination Date, and (ii) in the case of a Committed Loan, on the Maturity
Date. Each Loan shall bear interest from the date of the Borrowing of which such
Loan is a part on the outstanding principal balance thereof as set forth in
Section 2.09.
(b) Each Bank shall, and is hereby authorized by each Borrower to make
in its internal records relating to each Loan an appropriate notation evidencing
the date, amount and the Type of each Loan of such Bank to such Borrower, the
rate of interest applicable to such Loan and
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each payment or prepayment of principal of and interest on such Loan. The
aggregate unpaid principal amount so recorded shall be presumptive evidence of
the principal amount owing by such Borrower to such Bank in respect of such
Loan. The failure of any Bank to make such a notation or any error therein shall
not in any manner affect the obligation of such Borrower to repay the Loans made
by such Bank in accordance with the terms hereof.
SECTION 2.09. Interest on Loans. (a) Subject to the provisions of
Section 2.09(d) and Section 2.10, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to (i) in the case of each
Eurodollar Committed Loan, the lesser of (A) the IBO Rate for the Interest
Period in effect for such Borrowing plus .16 of 1% and (B) the Highest Lawful
Rate, and (ii) in the case of each Eurodollar Competitive Loan, the lesser of
(A) the IBO Rate for the Interest Period in effect for such Borrowing plus the
Margin offered by the Bank making such Loan and accepted by a Borrower pursuant
to Section 2.03 and (B) the Highest Lawful Rate.
(b) Subject to the provisions of Section 2.09(d) and Section 2.10, the
Loans comprising each ABR Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 365 or 366 days, as the case
may be, if the Alternate Base Rate shall be based on the Prime Rate, and a year
of 360 days otherwise) at a rate per annum equal to the Alternate Base Rate, but
not in excess of the Highest Lawful Rate.
(c) Subject to the provisions of Section 2.10, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Bank making such Loan and accepted by a Borrower
pursuant to Section 2.03, but not in excess of the Highest Lawful Rate.
(d) Interest on each Loan shall be payable in arrears on each Interest
Payment Date applicable to such Loan except as otherwise provided in this
Agreement. The applicable IBO Rate or Alternate Base Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent (which determination, made in good faith, shall
create a rebuttable presumption that the same is accurate). The Administrative
Agent shall promptly advise the Company and each Bank, as appropriate, of such
determination.
SECTION 2.10. Interest on Overdue Amounts. If any Borrower shall
default in the payment of the principal of or interest on any Loan or any other
amount becoming due hereunder, whether at scheduled maturity, by notice of
prepayment, acceleration or otherwise such Borrower shall on demand from time to
time pay interest, to the extent permitted by law, on such defaulted amount up
to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum equal to the lesser of (a) the Alternate Base Rate
plus 2% per annum (if the Alternate Base Rate is based on the Prime Rate,
computed on the basis of the actual number of days elapsed over a year of 365 or
366 days, as the case may be; if the Alternate Base Rate is based on the Federal
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Funds Effective Rate, computed on the basis of the actual number of days elapsed
over a year of 360 days) and (b) the Highest Lawful Rate.
SECTION 2.11. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing, (a) the Administrative Agent shall
have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or (b) the Majority Banks shall have determined (and notified the
Administrative Agent) that the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to any Bank of making or
maintaining its Eurodollar Loan during such Interest Period, the Administrative
Agent shall, as soon as practicable thereafter, give written notice of such
determination to the Borrowers and the Banks. In the event of any such
determination, any request by a Borrower for a Eurodollar Loan shall, until the
circumstances giving rise to such notice no longer exist, be deemed to be a
request for an ABR Loan. Each such determination by the Administrative Agent or
the Majority Banks hereunder, made in good faith, shall create a rebuttable
presumption that the same is accurate.
SECTION 2.12. Termination and Reduction of Commitments. (a) On any
Existing Termination Date on which Loans are outstanding, the Total Commitment
shall automatically reduce to the aggregate amount of such outstanding Loans and
the Total Commitment shall be automatically terminated on the Maturity Date.
(b) Subject to Section 2.13(b), upon at least ten Business Days' prior
irrevocable written or facsimile notice to the Administrative Agent, the Company
may at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Total Commitment; provided, however, that (i) each
partial reduction of the Total Commitment shall be in an integral multiple of
$1,000,000 and in a minimum principal amount of $25,000,000 and (ii) no such
termination or reduction shall be permitted if, after giving effect thereto and
to any repayments of the Loans made on the effective date thereof, the Total
Commitment would be less than the aggregate outstanding principal amount of the
then outstanding Competitive Loans. Such notice shall specify the date and the
amount of the termination or reduction of the Total Commitment. The
Administrative Agent shall promptly notify the Banks of the amount of any such
termination or reduction of the Total Commitment.
(c) Except in the circumstances described in Section 2.14 or Section
2.15, each reduction in the Total Commitment hereunder shall be made ratably
among the Banks in accordance with their respective Commitments. The Company
shall pay to the Administrative Agent for the account of the Banks, on the date
of each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced, accrued through the date of such
termination or reduction.
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SECTION 2.13. Prepayment. (a) Each Borrower shall have the right at
any time and from time to time to prepay any Committed Borrowing, in whole or in
part, upon written or facsimile notice (or telephone notice promptly confirmed
by written or facsimile notice) to the Administrative Agent: (i) before 10:00
a.m., New York City time, five Business Days prior to prepayment, in the case of
Eurodollar Committed Loans and (ii) before 10:00 a.m., New York City time, one
Business Day prior to prepayment, in the case of ABR Loans; provided, however,
that each partial prepayment shall be in an amount which is an integral multiple
of $1,000,000 and not less than $10,000,000. No Borrower shall have the right to
prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.12(b), the Borrowers shall pay or prepay so much of the
Committed Borrowings as shall be necessary in order that the aggregate principal
amount of the Competitive Loans and Committed Loans outstanding will not exceed
the Total Commitment, after giving effect to such termination or reduction.
(c) Each notice of prepayment given by a Borrower shall specify the
prepayment date and the principal amount of each Borrowing (or portion thereof)
to be prepaid, shall be irrevocable and shall commit such Borrower to prepay
such Borrowing (or portion thereof) by the amount stated therein on the date
stated therein. All prepayments under this Section 2.13 shall be subject to
Section 2.16 and Section 2.17 but otherwise without premium or penalty. All
prepayments under this Section 2.13 shall be accompanied by accrued interest on
the principal amount being prepaid to the date of prepayment.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a) It is
understood that the cost to each Bank of making or maintaining any of the Loans
may fluctuate as a result of the applicability of, or changes in, reserve
requirements imposed by the Board, including reserve requirements under
Regulation D in connection with Eurocurrency Liabilities. Subject to Section
9.08, each Borrower agrees to pay to each Bank, as provided in Section 2.14(d),
at any time when such Bank shall be required to maintain reserves with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Loan of
such Bank from the date of such Loan until such principal amount is paid in
full, payable on each Interest Payment Date for such Eurodollar Loan, at an
interest rate per annum equal at all times during each Interest Period to the
excess of (i) the rate obtained by dividing the IBO Rate for such Interest
Period by a percentage equal to 100% minus the reserve percentage applicable
during such Interest Period under regulations issued from time to time by the
Board (or if more than one such percentage is so applicable, minus the daily
average of such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) for determining the maximum
requirement (including any emergency, supplemental or other marginal reserve
requirement) for such Bank with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities over (ii) the IBO Rate for such Interest
Period. It is understood by the parties hereto that the rates of interest
applicable to Eurodollar Loans have been determined on the
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assumption that no such reserve requirements exist or will exist and that such
rates do not reflect costs imposed on the Banks in connection with such reserve
requirements. It is agreed that for purposes of this Section 2.14(a) the
Eurodollar Loans made hereunder shall be deemed to constitute Eurocurrency
Liabilities and to be subject to the reserve requirements of Regulation D
without benefit of or credit for proration, exemptions or offsets which might
otherwise be available to the Banks from time to time under Regulation D.
(b) Notwithstanding any other provision herein, if after the Execution
Date the introduction of any applicable law or regulation or any change in
applicable law or regulation or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or administration
thereof, or compliance by any Bank with any applicable guideline or request from
any central bank or governmental authority (whether or not having the force of
law) (i) shall change the basis of taxation of payments to any Bank of the
principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such
Bank or any other fees or amounts payable hereunder (other than (x) taxes
imposed on the overall net income of such Bank or its Applicable Lending Office
by the jurisdiction in which such Bank or its Applicable Lending Office has its
principal office or by any political subdivision or taxing authority therein (or
any tax which is enacted or adopted by such jurisdiction, political subdivision
or taxing authority as a direct substitute for any such taxes) or (y) any tax,
assessment or other governmental charge that would not have been imposed but for
the failure of any Bank to comply with any certification, information,
documentation or other reporting requirement), (ii) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, such Bank, or
(iii) shall impose on such Bank or the London interbank market any other
condition affecting this Agreement or any Eurodollar Loan or Fixed Rate Loan
made by such Bank, and the result of any of the foregoing shall be to increase
the cost to such Bank of maintaining its Commitment or of making or maintaining
any Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum
received or receivable by such Bank hereunder (whether of principal, interest or
otherwise) in respect thereof by an amount deemed in good faith by such Bank to
be material, then each Borrower shall pay to the Administrative Agent for the
account of such Bank such additional amount or amounts with respect to the
Eurodollar Loans and Fixed Rate Loans of such Borrower as will compensate such
Bank for such increase or reduction to such Bank upon demand by such Bank
(through the Administrative Agent).
(c) If any Bank shall have determined in good faith that the
applicability of any law, rule, regulation or guideline adopted pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards" or the adoption after the Execution
Date of any other law, rule, regulation or guideline regarding capital adequacy,
or any change in any of the foregoing or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or any lending office of such Bank) with any request or
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directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital as a consequence of
this Agreement or the Loans made by such Bank pursuant hereto to a level below
that which such Bank could have achieved but for such applicability, adoption,
change or compliance (taking into consideration such Bank's policies with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, as provided in Section 2.14(d), each Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank for
any such increased capital requirement.
(d) Each Bank will notify the Borrowers through the Administrative
Agent of any event occurring after the date of this Agreement which will entitle
such Bank to compensation pursuant to this Section 2.14, as promptly as
practicable, and in any event within 90 days after it becomes aware thereof and
determines to request compensation. A certificate of a Bank setting forth in
reasonable detail (i) such amount or amounts as shall be necessary to compensate
such Bank (or participating banks or other entities pursuant to Section 9.11) as
specified in paragraph (a), (b) or (c) above, as the case may be, and (ii) the
calculation of such amount or amounts under clause (a)(i), shall be delivered to
the Borrowers (with a copy to the Administrative Agent) and shall, to the extent
permitted by law, be conclusive absent manifest error. The Borrowers shall pay
to the Administrative Agent for the account of such Bank the amount shown as due
on any such certificate within 10 days after its receipt of the same.
(e) Except as expressly provided in Section 2.14(d), failure on the
part of any Bank to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to
any Interest Period or any other period shall not constitute a waiver of such
Bank's rights to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to
such Interest Period or any other period; provided that no Borrower shall be
required to compensate a Bank pursuant to this Section 2.14 for any increased
costs or reductions incurred more than 270 days prior to the date that such Bank
notifies such Borrower of the change in law giving rise to such increased costs
or reductions and of such Bank's intention to claim compensation therefor;
provided further that, if the change in law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof. The protection of
this Section 2.14 shall be available to each Bank regardless of any possible
contention of invalidity or inapplicability of law, regulation or condition
which shall have been imposed.
(f) In the event any Bank shall seek compensation pursuant to this
Section 2.14, the Company may give notice to such Bank (with copies to the
Administrative Agent) that it wishes to seek one or more Eligible Assignees
(which may be one or more of the Banks) to assume the Commitment of such Bank
and to purchase its outstanding Loans. Each Bank requesting compensation
pursuant to this Section 2.14 agrees to sell its Commitment, Loans and interest
in this
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Agreement pursuant to Section 9.11(c) to any such Eligible Assignee for an
amount equal to the sum of the outstanding unpaid principal of and accrued
interest on such Loans plus all other fees and amounts (including any
compensation claimed by such Bank under this Section 2.14 or Section 2.16) due
such Bank hereunder calculated, in each case, to the date such Commitment, Loans
and interest are purchased, whereupon such Bank shall have no further Commitment
or other obligation to any Borrower hereunder.
(g) Without prejudice to the survival of any other obligations of the
Borrowers hereunder, the obligations of the Borrower under this Section 2.14
shall survive the termination of this Agreement and the payment or assignment of
the Loans.
(h) Notwithstanding anything in this Section 2.14 to the contrary, in
no event shall any Bank be permitted to take or receive any compensation
hereunder constituting interest in excess of the Highest Lawful Rate.
SECTION 2.15. Change in Circumstances. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank or
its Eurodollar Lending Office to make or maintain any Eurodollar Loan or to give
effect to its obligations as contemplated hereby, then, by written notice to the
Borrower and to the Administrative Agent, such Bank may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Bank hereunder, whereupon such Bank shall not submit a Competitive Bid in
response to a request for Eurodollar Competitive Loans and any request by a
Borrower for a Eurodollar Committed Borrowing shall, as to such Bank only
(unless such Borrower (x) shall have withdrawn such request, in which case
such request shall be of no force and effect, or (y) shall have made a new
request for a Borrowing of a different Type in accordance with the terms
hereof, which shall be deemed to supersede such request for a Eurodollar
Committed Borrowing), be deemed a request for an ABR Loan; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in Section 2.15(b).
In the event any Bank shall exercise its rights under clause (i) or (ii) above
with respect to Eurodollar Loans, all payments and prepayments of principal
which would otherwise have been applied to repay the Eurodollar Loans that would
have been made by such Bank or the converted Eurodollar Loans of such Bank shall
instead be applied to repay the ABR Loans made by such Bank or the Banks, as the
case may be, in lieu of, or resulting from the conversion of, such Eurodollar
Loans.
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(b) For purposes of this Section 2.15, a notice to any Borrower (with
a copy to the Administrative Agent) by any Bank pursuant to Section 2.15(a)
shall be effective as to each Eurodollar Loan, if lawful, on the last day of the
Interest Period currently applicable to such Eurodollar Loan; in all other cases
such notice shall be effective on the date of receipt by the Borrower.
(c) In the event any Bank shall give a notice to any Borrower pursuant
to this Section 2.15, the Company may give notice to such Bank (with a copy to
the Administrative Agent) that it wishes to seek one or more Eligible Assignees
(which may be one or more of the Banks) to assume the Commitment of such Bank
and to purchase its outstanding Loans. Each Bank giving a notice to any Borrower
pursuant to this Section 2.15 agrees to sell its Commitment, Loans and interest
in this Agreement pursuant to Section 9.11(c) to any such Eligible Assignee for
an amount equal to the sum of the outstanding unpaid principal of and accrued
interest on such Loans plus all other fees and amounts (including any
compensation claimed by such Bank under Section 2.14 or Section 2.16) due such
Bank hereunder calculated, in each case, to the date such Commitment, Loans,
interest and fees are purchased, whereupon such Bank shall have no further
Commitment or other obligation to any Borrower hereunder.
(d) None of the Banks shall be permitted to terminate availability of
Eurodollar Loans as provided in this Section 2.15 on a discriminatory basis
(i.e., availability of Eurodollar Loans is not also terminated by the applicable
Bank with respect to other customers of such Bank similarly situated where such
customer is subject to documents providing for such right of termination).
SECTION 2.16. Indemnity. The Company shall indemnify each Bank against
any loss or reasonable expense which such Bank may sustain or incur as a
consequence of (a) any failure by a Borrower to fulfill on the date of any
Borrowing hereunder the applicable conditions set forth in Article III, (b) any
failure by a Borrower to borrow or to refinance, convert (other than conversion
into an ABR Loan) or continue any Loan hereunder after a Committed Borrowing
Request pursuant to Article II has been given or after Competitive Bids have
been accepted or after a notice of conversion or continuation has been given
pursuant to Section 2.05, (c) any payment, prepayment or conversion of a
Eurodollar Loan or Fixed Rate Loan required or permitted by any provision of
this Agreement or otherwise made on a date other than the last day of the
applicable Interest Period, (d) any default in the payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued thereon, as
and when due and payable (at the due date thereof, by notice of prepayment or
otherwise), or (e) the occurrence of any Event of Default, including, in the
case of any of the events set forth in clauses (a) through (e) of this Section
2.16, any loss or reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof as a Eurodollar Loan or Fixed
Rate Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by each Bank of (y) its cost of
obtaining the funds for the Loan being paid,
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prepaid or converted or not borrowed, refinanced, converted or continued (based
on the IBO Rate or, in the case of a Fixed Rate Loan, the fixed rate of interest
applicable thereto) for the period from the date of such payment, prepayment or
conversion or failure to borrow, refinance, convert or continue to the last day
of the Interest Period for such Loan (or, in the case of a failure to borrow,
refinance, convert or continue, the Interest Period for the Loan which would
have commenced on the date of such failure to borrow, refinance, convert or
continue) over (z) the amount of interest (as reasonably determined by such
Bank) that would be realized by such Bank in reemploying the funds so paid,
prepaid or converted or not borrowed, refinanced, converted or continued for
such period or Interest Period, as the case may be. A certificate of each Bank
setting forth any amount or amounts which such Bank is entitled to receive
pursuant to this Section 2.16 together with either a calculation of such amount
or amounts or a statement of the basis on which such amount or amounts have been
determined shall be delivered to the Company (with a copy to the Administrative
Agent) and such calculation or statement, made in good faith, shall create a
rebuttable presumption that the same is accurate. The Company shall pay to the
Administrative Agent for the account of each Bank the amount shown as due on any
certificate within 30 days after its receipt of the same. Without prejudice to
the survival of any other obligations of the Company hereunder, the obligations
of the Company under this Section 2.16 shall survive the termination of this
Agreement and/or the payment or assignment of any of the Loans. Without
limitation of this Section 2.16, the provisions of this Section 2.16 shall be
enforceable against the Company with respect to the conditions described in
clauses (a) and (b) of this Section 2.16 with respect to any Committed Borrowing
Request or Competitive Bid Request given by a Borrower hereunder on or after the
Execution Date regardless of whether the Effective Date occurs. Notwithstanding
the foregoing, in no event shall any Bank be permitted to receive any
compensation hereunder constituting interest in excess of the Highest Lawful
Rate.
SECTION 2.17. Pro Rata Treatment. Except as required under clause (d)
of the proviso of Section 2.05, Section 2.14, Section 2.15, or Section 2.16, (a)
each Committed Borrowing and each refinancing of any Borrowing with a Committed
Borrowing shall be allocated pro rata among the Banks in accordance with their
respective available Commitments, (b) each payment of the Facility Fees and each
reduction of the Commitments shall be allocated pro rata among the Banks in
accordance with their respective Commitments and (c) each payment or prepayment
of principal of any Committed Borrowing and each payment of interest on the
Loans comprising part of a Committed Borrowing shall be allocated pro rata among
the Banks participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Loans comprising such Borrowing. Except
as required under clause (d) of the proviso to Section 2.05, each payment of
principal of any Competitive Borrowing shall be allocated pro rata among the
Banks participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Competitive Loans comprising such
Borrowing. Each payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Banks participating in such Borrowing in accordance
with the respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available
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Commitments of the Banks at any time, each outstanding Competitive Borrowing
shall be deemed to have utilized the Commitments of the Banks (including those
Banks which shall not have made Loans as part of such Competitive Borrowing) pro
rata in accordance with such respective Commitments. Each Bank agrees that in
computing such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrowers (pursuant to Section 9.06 or otherwise), including, but not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Bank under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by similar means, obtain payment (voluntary
or involuntary) (other than pursuant to Section 2.14, Section 2.15 or Section
2.16) of any Committed Loan or Loans as a result of which the unpaid principal
portion of the Committed Loans of such Bank shall be proportionately less than
the unpaid principal portion of the Committed Loans of any other Bank, it shall
be deemed simultaneously to have purchased from such other Bank at face value,
and shall promptly pay to such other Bank the purchase price for, a
participation in the Committed Loans of such other Bank, so that the aggregate
unpaid principal amount of the Committed Loans and participations in the
Committed Loans held by each Bank shall be in the same proportion to the
aggregate unpaid principal amount of all Committed Loans then outstanding as the
principal amount of its Committed Loans prior to such exercise of banker's lien,
setoff or counterclaim or other event was to the principal amount of all
Committed Loans outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in a Committed Loan deemed to have been so
purchased may, to the extent permitted by law, exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Bank by reason thereof as fully as if such Bank had
made a Committed Loan directly to such Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) Each Borrower shall make each payment
hereunder not later than noon, New York City time, on the day when due in lawful
money of the United States (in freely transferable dollars) to the
Administrative Agent at its address referred to in Section 9.02 for the account
of the Banks, in federal or other immediately available funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest on Committed Loans (other than
pursuant to Section 2.14, Section 2.15 and Section 2.16) or Facility Fees
ratably to the Banks and like funds relating to the payment of any other amount
(including payments of principal or interest on Competitive Loans which are not
made ratably to the
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Banks) payable to any Bank to such Bank for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. If the Administrative Agent fails to send to any Bank its portion of
any payment timely received by the Administrative Agent hereunder by the close
of business on the day such payment was received, the Administrative Agent shall
pay to such Bank interest on its portion of such payment from the day such
payment was timely received by the Administrative Agent until the date such
Bank's portion of such payment is sent to such Bank, at the Federal Funds
Effective Rate.
(b) Whenever any payment hereunder (including principal of or interest
on any Borrowing or any fees or other amounts), shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest, fees or other amounts, as the case may be;
provided, however, if such extension would cause payment of interest on or
principal of a Eurodollar Loan to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(c) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Banks hereunder
that such Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent a Borrower
shall not have so made such payment in full to the Administrative Agent, each
Bank shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Administrative Agent, at the Federal Funds Effective Rate.
SECTION 2.20. Taxes. (a) Except as expressly provided in the last
sentence of Section 2.20(f), any and all payments by the Borrowers hereunder
shall be made, in accordance with Section 2.19, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding
taxes imposed on the Administrative Agent's or any Bank's income and franchise
taxes imposed on the Administrative Agent or any Bank, in each case by the
United States or any jurisdiction under the laws of which it is organized or any
political subdivision of such jurisdiction of organization (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to the Banks or
the Administrative Agent (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.20) such Bank or the
Administrative Agent (as the case may be) shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and
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(iii) such Borrower shall pay the full amount deducted to the relevant taxing
authority or other governmental authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any Loan (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Bank and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.20)
paid by such Bank or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within 30 days after the
date any Bank or the Administrative Agent, as the case may be, makes written
demand therefor. If a Bank or the Administrative Agent shall become aware that
it is entitled to receive a refund in respect of Taxes or Other Taxes, it shall
promptly notify the applicable Borrower of the availability of such refund and
shall, within 30 days after receipt by such Borrower, apply for such refund at
such Borrower's expense. If any Bank or the Administrative Agent receives a
refund in respect of any Taxes or Other Taxes for which such Bank or the
Administrative Agent has received payment from a Borrower hereunder it shall
promptly notify such Borrower of such refund and shall, within 30 days after
receipt of a request by such Borrower (or promptly upon receipt, if such
Borrower has requested application for such refund pursuant hereto), repay such
refund to such Borrower without interest, provided that such Borrower, upon the
request of such Bank or the Administrative Agent, agrees to return such refund
(plus penalties, interest or other charges) to such Bank or the Administrative
Agent in the event such Bank or the Administrative Agent is required to repay
such refund.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by a Borrower in respect of any payment to any Bank (or
transferee) or the Administrative Agent, such Borrower will furnish to the
Administrative Agent, at its address referred to in Section 9.02, the original
or a certified copy of a receipt evidencing payment thereof or, if such original
or copy of a receipt is not available from the relevant taxing authority, other
documentation of payment reasonably satisfactory to such Bank (or transferee) or
the Administrative Agent.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.20 shall
survive the payment in full of principal and interest hereunder.
(f) Each Bank which is organized outside the United States shall
promptly notify the Borrowers of any change in its Applicable Lending Office and
upon written request of any Borrower shall, prior to the immediately following
due date of any payment by such Borrower
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hereunder, deliver to such Borrower such certificates, documents or other
evidence, as required by the Code or Treasury Regulations issued pursuant
thereto, including Internal Revenue Service Form 4224 or Form 1001 and any other
certificate or statement or exemption required by Treasury Regulation Section
1.1441-1(a) or Section 1.1441-6(c) or any subsequent version thereof, properly
completed and duly executed by such Bank establishing that such payment is (i)
not subject to withholding under the Code because such payment is effectively
connected with the conduct by such Bank of a trade or business in the United
States or (ii) totally exempt from United States tax under a provision of an
applicable tax treaty. Unless the Borrowers and the Administrative Agent have
received forms or other documents satisfactory to them indicating that payments
hereunder or under the Loans are not subject to United States withholding tax or
are subject to such tax at a rate reduced by an applicable tax treaty, the
Borrowers or the Administrative Agent shall withhold taxes from such payments at
the applicable statutory rate in the case of payments to or for any Bank or
assignee organized under the laws of a jurisdiction outside the United States.
(g) Any Bank claiming any additional amounts payable pursuant to this
Section 2.20 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by a Borrower or to
change the jurisdiction of its Applicable Lending Office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue and would not, in the sole
determination of such Bank, be otherwise disadvantageous to such Bank.
SECTION 2.21. Extensions of Termination Date. (a) The Company (for
itself and on behalf of the other Borrowers) may, by notice to the
Administrative Agent (a "Notice of Extension") given not less than 30 nor more
than 45 days prior to the then effective Termination Date (such then effective
Termination Date being an "Existing Termination Date"), advise the Banks that it
requests an extension of the Existing Termination Date by not more than 364
calendar days, effective on the Existing Termination Date. The Administrative
Agent will promptly, and in any event within five Business Days of the receipt
of each Notice of Extension, notify the Banks of the contents of each such
Notice of Extension.
(b) Each Notice of Extension shall be irrevocable upon the Company and
the other Borrowers and constitute a representation by the Borrowers that (i)
neither any Event of Default nor any Default has occurred and is continuing,
(ii) the representations and warranties contained in Article IV (other than
those which expressly relate to an earlier date) are correct on and as of the
date of such Notice of Extension, as though made on and as of such date and
(iii) no Loans shall be outstanding on the Existing Termination Date.
(c) In the event that a Notice of Extension is given to the
Administrative Agent as provided in Section 2.21(a), and the Administrative
Agent notifies a Bank of the contents thereof as provided in Section 2.21(a),
such Bank shall on or before the fifteenth day next preceding the Existing
Termination Date advise the Administrative Agent and the Company whether or not
such
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Bank consents to the extension requested thereby and if any Bank fails to so
advise the Administrative Agent and the Company, such Bank shall be deemed not
to have consented to such extension.
(d) Notwithstanding any provision of this Section 2.21 to the
contrary, each Bank that has expressly consented to an extension of the
Termination Date, may in its sole and absolute discretion at any time prior to
the Existing Termination Date give the Administrative Agent written notice that
such Bank has revoked its consent to such extension of the Existing Termination
Date (a "Notice of Revocation"). Each Notice of Revocation shall be irrevocable.
Upon receipt of any Notice of Revocation, the Administrative Agent will promptly
notify the Borrowers and the Banks of the content of each Notice of Revocation
and the Termination Date shall be the Existing Termination Date.
(e) In the event (i) an extension of the Termination Date is consented
to by all of the Banks and none of the Banks delivers a Notice of Revocation in
accordance with Section 2.21(d) and (ii) on the Existing Termination Date the
Borrowers deliver to the Administrative Agent and each of the Banks a
certificate to the effect that no Default or Event of Default has occurred and
is continuing on the Existing Termination Date and that the representations and
warranties contained in Article IV (other than those which expressly relate to
an earlier date) are correct on and as of the Existing Termination Date as
though made on and as of such date, the Termination Date for the Loans and the
Commitments of all of the Banks shall be automatically extended 364 calendar
days past the Existing Termination Date, effective on the Existing Termination
Date; provided, however, unless all outstanding Loans are repaid in full on the
Existing Termination Date, the Termination Date for the Loans and the
Commitments of the Banks shall be the Existing Termination Date.
SECTION 2.22. Borrowing Subsidiary. The Company may designate any
Wholly-owned Subsidiary (other than an Inactive Subsidiary) as a Borrowing
Subsidiary. Upon the acceptance by the Administrative Agent of a Borrowing
Subsidiary Counterpart of this Agreement in the form of Exhibit 2.22 (a
"Borrowing Subsidiary Counterpart") executed by such Wholly-owned Subsidiary
and the Company, such Wholly-owned Subsidiary shall be a Borrowing Subsidiary
and a party to this Agreement.
SECTION 2.23. Liability of Borrowing Subsidiaries. Notwithstanding
anything in this Agreement to the contrary, in no event shall any Borrowing
Subsidiary now or hereafter party to this Agreement be liable for the Loans or
any other obligations of the Company or any other Borrowing Subsidiary
hereunder; it being the intention of the parties hereto that each Borrowing
Subsidiary shall be liable only for the Loans made to it and its other
obligations hereunder.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Initial Loans to the
Company. The obligation of each Bank to make its initial Loan to the Company is
subject to the condition precedent that the Administrative Agent shall have
received on or before the initial Borrowing Date the following, each dated
(unless otherwise indicated) such date and, with respect to all such documents
referred to in Section 3.01(a), Section 3.01(b), Section 3.01(c) and Section
3.01(d), in sufficient copies for each Bank and the Administrative Agent:
(a) A counterpart of this Agreement (to which all of the Exhibits and
Schedules have been attached) dated as of the date hereof executed by the
Company, the Administrative Agent, the Co-Agents and the Banks.
(b) (i) A copy of the articles of incorporation, as amended, of the
Company, certified by the Secretary of State of the State of Texas and a
certificate as to the good standing of the Company from the Comptroller of the
State of Texas; (ii) a certificate of the Secretary or an Assistant Secretary of
the Company certifying (A) that attached thereto is a true and complete copy of
the bylaws of the Company as in effect on the date of such certificate and at
all times since a date prior to the date of the resolutions described in (B)
below, (B) that attached thereto is a true and complete copy of resolutions (i)
duly adopted by the Executive Committee of the Board of Directors of the Company
authorizing the execution, delivery and performance of this Agreement and the
Agent's Fee Letter, and (ii) duly adopted by the Board of Directors of the
Company, appointing said Executive Committee, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C) that
the articles of incorporation of the Company have not been amended since the
last amendment thereto shown on the good standing certificate furnished pursuant
to (i) above and (D) as to the incumbency and specimen signatures of each
officer of the Company executing this Agreement and the Agent's Fee Letter and
(iii) a certificate of another officer of the Company as to the incumbency and
specimen signatures of the Secretary or Assistant Secretary of the Company.
(c) A certificate of a Senior Vice President, an Executive Vice
President or a Vice President of the Company certifying (i) the truth of the
representations and warranties made by the Company in this Agreement and (ii)
the absence of the occurrence and continuance of any Default or Event of Default
and (iii) that on or prior to the initial Borrowing Date, the principal of and
interest on all loans, all accrued fees and all other amounts due under the
Existing Agreements shall have been paid in full and the commitments thereunder
shall have been terminated.
(d) The written opinions of (i) Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇,
L.L.P., counsel to the Company, addressed to the Administrative Agent and the
Banks and in form and
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substance acceptable to the Administrative Agent and the Banks and (ii) ▇▇▇▇▇ ▇.
Shelger, Senior Vice President, General Counsel and Secretary of the Company,
addressed to the Administrative Agent and the Banks and in form and substance
acceptable to the Administrative Agent and the Banks.
(e) An Administrative Questionnaire completed by each Bank.
In addition, on the Effective Date the Administrative Agent shall have received
all fees which it is entitled to receive on such date pursuant to the Agent's
Fee Letter.
SECTION 3.02. Conditions Precedent to the Initial Loan to each
Borrowing Subsidiary. The obligation of each Bank to make its initial Loan to
any Borrowing Subsidiary is subject to the further conditions precedent that the
Administrative Agent shall have received on or before the Borrowing Date for
such Loan the following, each dated such date, and in sufficient copies for each
Bank and the Administrative Agent:
(a) A Borrowing Subsidiary Counterpart executed by such Borrowing
Subsidiary and acknowledged by the Company.
(b) (i) A copy of the articles or certificate of incorporation (or
other similar evidence of organization) of such Borrowing Subsidiary,
together with all amendments, and a current certificate of good standing,
both certified by the appropriate governmental officer, in its jurisdiction
of organization; (ii) a certificate of the Secretary or Assistant Secretary
of such Borrowing Subsidiary certifying, inter alia, (A) true and correct
copies of the bylaws (or other similar document) of such Borrowing
Subsidiary as in effect on the date of such certificate and at all times
since a date prior to the date of the resolutions or other action described
in clause (B) below, (B) true and complete copies of resolutions duly
adopted by the Board of Directors of such Borrowing Subsidiary (or of the
taking of such other action as may be necessary and appropriate under
applicable law), authorizing such Borrowing Subsidiary to execute, deliver
and perform its obligations under its Borrowing Subsidiary Counterpart and
this Agreement, and to borrow and effect other transactions hereunder, and
that such resolutions or other action has not been modified, rescinded or
amended and is in full force and effect and (C) the incumbency and specimen
signatures of the Persons executing any documents on behalf of such
Borrowing Subsidiary; and (iii) a certificate of another officer of such
Borrowing Subsidiary as to the incumbency and specimen signature of the
Secretary or Assistant Secretary of such Borrowing Subsidiary.
(c) A certificate of a principal officer of such Borrowing Subsidiary
certifying (i) the truth of the representations and warranties set forth in
this Agreement with respect to such Borrowing Subsidiary and (ii) the
absence of the occurrence and continuance of any Default or Event of
Default with respect to such Borrowing Subsidiary.
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(d) One or more written opinions of counsel to such Borrowing
Subsidiaries, each in form and substance satisfactory to the Administrative
Agent and the Banks.
(e) A letter from Corporation Service Company, in form and substance
satisfactory to the Administrative Agent, evidencing the obligation of
Corporation Service Company to accept service of process in the State of
New York on behalf of such Borrowing Subsidiary.
(f) Such other documents as either the Administrative Agent or any
Bank through the Administrative Agent may have reasonably requested.
SECTION 3.03. Conditions Precedent to Each Committed Borrowing. The
obligation of each Bank to make a Committed Loan on the occasion of any
Committed Borrowing (including the initial Committed Borrowing) shall be subject
to the further conditions precedent that on the Borrowing Date of such Committed
Borrowing the following statements shall be true (and each of the giving of the
applicable Committed Borrowing Request and the acceptance by a Borrower of the
proceeds of such Committed Borrowing shall constitute a representation and
warranty by the Company and such Borrower (if not the Company) that on the date
of such Committed Borrowing such statements are true; provided, however, that to
the extent such representation and warranty is made by a Borrowing Subsidiary,
such representation and warranty shall (in the case of clauses (a) and (b) be
made only with respect to such Borrowing Subsidiary and its Subsidiaries):
(a) The representations and warranties contained in Article IV are
correct on and as of the date of such Committed Borrowing, before and after
giving effect to such Committed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; provided,
however, that for purposes of this clause (a), on and after any date on
which the Company delivers its consolidated financial statements to the
Administrative Agent and the Banks pursuant to Section 5.01(a)(i) or
5.01(a)(ii), as the case may be, (A) the reference in the first sentence of
Section 4.07 to the Company Financials shall be a reference to the
consolidated financial statements of the Company and its Subsidiaries most
recently delivered to the Administrative Agent and the Banks by the Company
pursuant to Section 5.01(a)(i) or 5.01(a)(ii), as the case may be, prior to
the date of such Committed Borrowing and (B) the reference in the last
sentence of Section 4.07 to December 31, 1996, shall be a reference to the
date of the audited consolidated financial statements most recently
delivered to the Administrative Agent and the Banks pursuant to Section
5.01(a)(i);
(b) No event has occurred and is continuing, or would result from such
Committed Borrowing or from the application of the proceeds therefrom,
which constitutes either a Default or an Event of Default; and
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(c) Following the making of such Committed Borrowing and all other
Borrowings to be made on the same day under this Agreement, the aggregate
principal amount of all Loans then outstanding shall not exceed the Total
Commitment.
SECTION 3.04. Conditions Precedent to Each Competitive Borrowing. The
obligation of each Bank which is to make a Competitive Loan on the occasion of a
Competitive Borrowing (including the initial Competitive Borrowing) to make such
Competitive Loan as part of such Competitive Borrowing is subject to the further
conditions precedent that:
(a) The Administrative Agent shall have received a Competitive Bid
Request with respect thereto; and
(b) On the Borrowing Date of such Competitive Borrowing the following
statements shall be true (and each of the giving of the applicable
Competitive Bid Request and the acceptance by a Borrower of the proceeds of
such Competitive Borrowing shall constitute a representation and warranty
by the Company and such Borrower (if not the Company) that on the date of
such Competitive Borrowing such statements are true; provided, however,
that to the extent such representation and warranty is made by a Borrowing
Subsidiary, such representation and warranty shall (in the case of clauses
(i) and (ii)) be made only with respect to such Borrowing Subsidiary and
its Subsidiaries):
(i) The representations and warranties contained in Article IV
are correct on and as of the date of such Competitive Borrowing,
before and after giving effect to such Competitive Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; provided, however, that for purposes of this clause (i), on
and after any date on which the Company delivers its consolidated
financial statements to the Administrative Agent and the Banks
pursuant to Section 5.01(a)(i) or 5.01(a)(ii), as the case may be, (A)
the reference in the first sentence of Section 4.07 to the Company
Financials shall be a reference to the consolidated financial
statements of the Company and its Subsidiaries most recently delivered
to the Administrative Agent and the Banks by the Company pursuant to
Section 5.01(a)(i) or 5.01(a)(ii), as the case may be, prior to the
date of such Competitive Borrowing and (B) the reference in the last
sentence of Section 4.07 to December 31, 1996, shall be a reference to
the date of the audited consolidated financial statements most
recently delivered to the Administrative Agent and the Banks pursuant
to Section 5.01(a)(i);
(ii) No event has occurred and is continuing, or would result
from such Competitive Borrowing or from the application of the
proceeds therefrom, which constitutes either a Default or an Event of
Default; and
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(iii) Following the making of such Competitive Borrowing and all
other Borrowings to be made on the same day under this Agreement, the
aggregate principal amount of all Loans then outstanding shall not
exceed the Total Commitment.
SECTION 3.05. Conditions Precedent to Conversions and Continuations.
The obligation of the Banks to convert any existing Committed Borrowing into a
Eurodollar Committed Borrowing or to continue any existing Committed Borrowing
as a Eurodollar Committed Borrowing is subject to the condition precedent that
on the date of such conversion or continuation no Default or Event of Default
shall have occurred and be continuing or would result from the making of such
conversion or continuation. The acceptance of the benefits of each such
conversion and continuation shall constitute a representation and warranty by
the Company and each Borrowing Subsidiary to each of the Banks that no Default
or Event of Default shall have occurred and be continuing or would result from
the making of such conversion or continuation; provided, however, that to the
extent such representation and warranty is made by a Borrowing Subsidiary, such
representation and warranty shall be made only with respect to such Borrowing
Subsidiary and its Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
the Banks and, to the extent the following relates to any Borrowing Subsidiary
or its Subsidiaries, such Borrowing Subsidiary severally represents and warrants
to the Administrative Agent and the Banks as follows (all references in this
Article IV to "this Agreement" being deemed to include also, in the case of any
Borrowing Subsidiary, its Borrowing Subsidiary Counterpart):
SECTION 4.01. Organization and Qualification. The Company and each of
its Subsidiaries (except Inactive Subsidiaries) (a) are entities duly organized,
validly existing and in good standing under the laws of the respective
jurisdictions of their organization, (b) have the corporate or other power to
own their property and to carry on their businesses as now conducted and (c) are
duly qualified to do business as foreign corporations and are in good standing
in every jurisdiction in which the failure to be so qualified would have a
material adverse effect upon the business or properties of the Company and its
Subsidiaries taken as a whole or upon the ability of any Borrower to perform its
obligations under this Agreement or, in the case of the Company, the Guaranty.
The Company is a Texas corporation. The corporations named in Schedule 4.01 are
the only Subsidiaries of the Company on the date of this Agreement, and such
Schedule accurately reflects the percentage of (y) the issued and outstanding
capital stock and (z) the stock of each class having ordinary voting power, of
each Subsidiary owned by the Company on the date of this Agreement and
accurately identifies the Consolidated Subsidiaries, the Inactive Subsidiaries,
the Substantially-owned Subsidiaries and the Wholly-owned Subsidiaries on the
date of this Agreement.
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SECTION 4.02. Authorization, Validity, Etc. Each Borrower has the
corporate or other power and authority to make and carry out this Agreement
(and, in the case of the Company, the Guaranty), to make the Borrowings provided
for herein and to perform its obligations hereunder (and, in the case of the
Company, the Guaranty) and all such action has been duly authorized by all
necessary corporate proceedings on its part. This Agreement has been duly and
validly executed and delivered by the Borrowers and the Guaranty and the Agent's
Fee Letter have been duly and validly executed and delivered by the Company and
all such agreements constitute valid and legally binding agreements of the
Borrowers parties thereto enforceable in accordance with their respective terms,
except, in each case, as such enforceability may be limited by bankruptcy,
insolvency or other laws of general application relating to or affecting the
enforcement of creditors' rights.
SECTION 4.03. Governmental Consents, Etc. No authorization, consent,
approval, license or exemption of or filing or registration with any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is necessary for the valid execution, delivery or
performance by any Borrower of this Agreement, or by the Company of the Guaranty
or the Agent's Fee Letter.
SECTION 4.04. Conflicting or Adverse Agreements or Restrictions.
Neither the Company nor any of its Subsidiaries is a party to any contract or
agreement or subject to any restriction which materially and adversely affects
the business or assets or financial condition of the Company and its
Subsidiaries taken as a whole. Neither the execution nor delivery of this
Agreement or the Guaranty nor compliance with the terms and provisions hereof or
thereof nor any Borrowing will be contrary to the provisions of, or constitute a
default under, (a) the charter or bylaws of the Company or any of its
Subsidiaries or (b) any applicable law or any applicable regulation, order,
writ, injunction or decree of any court or governmental instrumentality or (c)
any agreement to which the Company or any of its Subsidiaries is a party or by
which it is bound or to which it is subject, which default, in the case of
clause (b) or (c) of this Section 4.04 could, individually or together with all
other such defaults described in this Section 4.04, reasonably be expected to
result in a material adverse change in the business or condition of the Company
and its Subsidiaries taken as a whole or upon the ability of any Borrower to
perform its obligations under this Agreement and, in the case of the Company,
the Guaranty.
SECTION 4.05. Title to Assets. The Company and each Subsidiary (except
Inactive Subsidiaries) have good and indefeasible title to their respective
assets, subject to no Liens, except those permitted in Section 5.02(c).
SECTION 4.06. Actions Pending. There is no action or proceeding
pending or, to the knowledge of any Borrower, threatened against the Company or
any of its Subsidiaries before any court or administrative agency which could
reasonably be expected to result in a material adverse change in the business or
condition of the Company and its Subsidiaries taken as a whole
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or upon the ability of such Borrower to perform its obligations under this
Agreement and, in the case of the Company, the Guaranty.
SECTION 4.07. Financial Statements. The Company has furnished or has
caused to be furnished to each Bank (a) consolidated financial statements of the
Company as at and for the fiscal year ended December 31, 1996, included in the
Company's annual report for the fiscal year ended December 31, 1996 and
accompanied by the report and opinion of Coopers & ▇▇▇▇▇▇▇ L.L.P., (b) the
Annual Report of the Company on Form 10-K for the fiscal year ended December 31,
1996 and (c) the Quarterly Report of the Company on Form 10-Q for the fiscal
quarter ended March 31, 1997 (the financial statements described in clauses (a)
through (c) being collectively, the "Company Financials"). The Company
Financials have been prepared in conformity with GAAP consistently followed
(except as otherwise disclosed in such financial statements) throughout the
periods involved and present fairly the consolidated financial condition of the
Company and its Consolidated Subsidiaries and the consolidated results of
operations of the Company and its Consolidated Subsidiaries as at the dates and
for the periods indicated. There has been no material adverse change in the
consolidated condition or operation, financial or otherwise, of the Company and
its Subsidiaries since December 31, 1996.
SECTION 4.08. Default. Neither the Company nor any of its Subsidiaries
is in default in any respect under the provisions of any instrument evidencing
any Debt or of any agreement relating thereto, or in default in any respect
under any order, writ, injunction or decree of any court, or in default in any
respect under or in violation of any law, order, regulation or demand of any
governmental instrumentality, which defaults or violations could reasonably be
expected to have a material adverse effect upon the business or properties of
the Company and its Subsidiaries taken as a whole or upon the ability of any
Borrower to perform its obligations under this Agreement and, in the case of the
Company, the Guaranty.
SECTION 4.09. Investment Company Act. Neither the Company nor any of
its Subsidiaries is, or is directly or indirectly controlled by or acting on
behalf of any Person which is, an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the Company
nor any of its Subsidiaries is a non-exempt "holding company," or subject to
regulation as such, or, to the knowledge of the Company's officers, an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 4.11 ERISA. Neither the Company nor any of its Subsidiaries
has incurred any accumulated funding deficiency, within the meaning of ERISA,
material to the
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Company and its Subsidiaries taken as a whole, whether or not waived, or any
liability material to the Company and its Subsidiaries, when taken as a whole,
under Title IV of ERISA.
SECTION 4.12. Payment of Taxes. The Company and each of its
Subsidiaries (except Inactive Subsidiaries) have filed all federal and state
income and franchise tax returns which, to the knowledge of the officers
thereof, are required to be filed and have paid all taxes shown on said returns
and all assessments which are due other than such taxes and assessments which
are being contested in good faith by appropriate proceedings diligently
conducted and for which reserves or other appropriate provisions, if any, as
shall be required by GAAP, have been made. The consolidated federal income tax
returns of the Company and its Consolidated Subsidiaries have been examined and
reported on by the Internal Revenue Service for all fiscal years to and
including the fiscal year ended December 31, 1992.
SECTION 4.13. Purpose of Loans. None of the proceeds of the Loans will
be used for the purpose of purchasing or carrying any "margin stock" within the
meaning of Regulation G or Regulation U (herein called "Margin Stock") or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry Margin Stock, or for any other purpose which might
constitute a "purpose" credit within the meaning of Regulation G or Regulation
U, as now in effect or as they may hereafter be amended. Margin Stock did not on
December 31, 1996, and does not on the date hereof constitute more than 25% of
the assets of the Company or any of its Subsidiaries, and the Company and the
other Borrowers do not intend or foresee that Margin Stock will at any time
during the term of this Agreement constitute more than 25% of such assets.
SECTION 4.14. Patents, Etc. The Company and each of its Subsidiaries
have all patents, patent rights or licenses, trademarks, service marks,
trademark rights, trade names, trade name rights, and copyrights which are
required in order for it to conduct its business as now conducted without any
known material conflict with the rights of others.
SECTION 4.15. No Material Guarantees or Letters of Credit. Each
Assured Obligation and each Letter of Credit Obligation of the Company and its
Subsidiaries is listed in the Company Financials, in the most recently delivered
financial statements delivered pursuant to Section 5.01(a) or on Schedule 4.15,
other than any such Assured Obligation or Letter of Credit Obligation which
individually does not exceed $100,000 or which together with all such other
Assured Obligations and Letter of Credit Obligations does not exceed $1,000,000;
provided, however, after the Effective Date, Schedule 4.15 shall be deemed to
include all Assured Obligations and Letter of Credit Obligations of the Company
and its Subsidiaries incurred or issued in accordance with the provisions of
Section 5.02(g). Neither the Company nor any of its Subsidiaries has any
liability, contingent or otherwise, which either individually or collectively
with all such other liabilities could reasonably be expected to have a material
adverse effect upon the business or
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properties of the Company and its Subsidiaries taken as a whole or upon the
ability of any Borrower to perform its obligations under this Agreement and, in
the case of the Company, the Guaranty.
SECTION 4.16. Enhancement Agreements. Schedule 4.16 describes the
principal amount of all obligations, including all Debt, Letter of Credit
Obligations and unfunded commitments which are covered by any Enhancement
Agreement; provided, however, after the Execution Date, Schedule 4.16 shall be
deemed to include all such principal obligations described on the schedule most
recently delivered pursuant to the last sentence of Section 5.01(a).
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Loan shall remain
unpaid or any Bank shall have any Commitment hereunder, unless the Majority
Banks shall otherwise agree in writing, each Borrower covenants and agrees for
itself and the Company covenants and agrees with respect to each other Borrower
as follows:
(a) Financial Statements and Other Information. The Company shall
deliver to each Bank:
(i) As soon as available, and in any event within 120 days after
the end of each fiscal year, a copy of the annual audit report of the
Company for such fiscal year containing a consolidated balance sheet,
a consolidated statement of income, a consolidated statement of
stockholders' equity and a consolidated statement of cash flows, all
in reasonable detail and accompanied by a report and opinion of
Coopers & ▇▇▇▇▇▇▇ L.L.P. or another independent certified public
accountant of recognized standing satisfactory to the Majority Banks.
The Company will obtain from such accountants and deliver to each Bank
at the time said financial statements are delivered the written
statement of such accountants that in making the examination necessary
for said report and opinion they have obtained no knowledge of any
Event of Default or Default, or if such accountants shall have
obtained knowledge of any Event of Default or Default, they shall
state the nature and period of existence thereof in such statement;
provided, that such accountants shall not be liable directly or
indirectly to any such Bank for failure to obtain knowledge of any
Event of Default or Default;
(ii) As soon as available, and in any event within 60 days after
the end of each of the first three quarterly accounting periods in
each fiscal year, a consolidated statement of stockholders' equity and
the report of the Company to the Securities and Exchange Commission on
Form 10-Q;
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(iii) Promptly after sending or filing thereof, copies of all
statements and reports sent to stockholders and all effective
registration statements and regular or periodic reports filed with the
Securities and Exchange Commission;
(iv) Promptly upon request, such additional financial or other
information as any Bank may reasonably request;
(v) Promptly, and in any case within five days after the
President, the Senior Vice President and Chief Financial Officer, the
Vice President and Treasurer or the General Counsel of the Company
learns thereof, notice of (A) the occurrence of a Default or an Event
of Default, (B) any material default of the Company or any of its
Subsidiaries under any other borrowed money obligation, (C) any
monetary or other material default of the Company or any of its
Subsidiaries under any material contract or (D) receipt of any notice
from any federal or other governmental instrumentality of any
violation by the Company or any of its Subsidiaries of any legal
requirement, which violation together with all other such violations
by the Company and its Subsidiaries could reasonably be expected to
have a material adverse effect upon the business or properties of the
Company and its Subsidiaries taken as a whole or upon the ability of
any Borrower to perform its obligations under this Agreement and, in
the case of the Company, the Guaranty, describing the nature of such
Default, such Event of Default, such default or such violation and
what action the Company or such Subsidiary, as the case may be, has
taken or proposes to take with respect thereto; and
(vi) Promptly after each annual meeting of the Company's
shareholders, an Officer's Certificate of the election and incumbency
of the Company's officers and directors in form and substance
satisfactory to the Banks.
All financial statements specified in clauses (i) and (ii) above shall be
furnished in consolidated form for the Company and its Consolidated
Subsidiaries. Investments by the Company in its Subsidiaries other than its
Consolidated Subsidiaries shall be accounted for on the equity method.
Together with each delivery of financial statements required by clauses (i)
and (ii) above, the Company will deliver to each Bank (y) schedules and/or
computations demonstrating that the Company is in compliance with its
covenants in Sections 5.02(a), 5.02(b), 5.02(c) and 5.02(g) or reflecting
any noncompliance therewith as at the applicable date and (z) an Officer's
Certificate stating that there exists no Event of Default or Default, or,
if any Event of Default or Default exists, stating the nature thereof, the
period of existence thereof and what action the Company or any other
Borrower has taken or proposes to take with respect thereto. Together with
each delivery of financial statements required by clause (i) above, the
Company will deliver to each such Bank a
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schedule of the principal amount of all obligations of the Company covered
by any Enhancement Agreement.
(b) Books and Records. Each Borrower shall maintain, and cause each of
its Subsidiaries to maintain, proper books of record and account in
accordance with generally accepted accounting practices.
(c) Insurance. Each Borrower shall maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible companies (or by self
insurance to the extent authorized by law) in such amounts and against such
risks as is customarily carried on comparable business and properties, and
furnish to the Banks, upon request by the Administrative Agent or any Bank,
an Officer's Certificate containing full information as to the insurance
carried and self insurance levels maintained; and promptly after notice in
writing from the Administrative Agent obtain such additional insurance as
the Administrative Agent may reasonably request and which is customarily
carried on comparable businesses or properties.
(d) Maintenance of Property. Each Borrower shall cause its property
and the property of its Subsidiaries to be maintained, preserved, protected
and kept in good repair, working order and condition so that the business
carried on in connection therewith may be conducted properly and
efficiently.
(e) Inspection of Property and Records. Upon reasonable advance
notice, each Borrower shall permit any Person designated by the
Administrative Agent or any of the Banks in writing to visit and inspect
any of the properties, corporate books and financial records of such
Borrower and its Subsidiaries and discuss their respective affairs and
finances with their principal officers, all at such times as the
Administrative Agent or such Bank may reasonably request.
(f) Existence, Laws, Obligations. The Company shall maintain its
corporate existence, comply and cause its Subsidiaries (except Inactive
Subsidiaries) to comply with all applicable statutes and governmental
regulations, including all applicable environmental statutes and
regulations (except those the validity or applicability of which the
Company shall be contesting in good faith and by appropriate proceedings
diligently conducted for which such reserves or other appropriate
provisions, if any, as shall have been required by GAAP, have been made),
where the failure to so comply would have a material adverse effect on the
business, operations, property or condition of the Company and its
Subsidiaries taken as a whole or upon the ability of any Borrower to
perform its obligations under this Agreement and, in the case of the
Company, the Guaranty, and pay and cause its Subsidiaries (except Inactive
Subsidiaries) to pay all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which if unpaid might
become a Lien against
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the property of the Company or such Subsidiary (except Inactive
Subsidiaries), and where the failure to make such payment or where the
creation of such Lien would have a material adverse effect on the business,
operations, property or condition of the Company and its Subsidiaries taken
as a whole or upon the ability of any Borrower to perform its obligations
under this Agreement and, in the case of the Company, the Guaranty, except
any of the foregoing liabilities being contested in good faith by
appropriate proceedings diligently conducted for which such reserves or
other appropriate provisions, if any, as shall have been required by GAAP,
have been made.
SECTION 5.02. Negative Covenants. So long as any Loan shall remain
unpaid or any Bank shall have any Commitment hereunder, without the written
consent of the Majority Banks:
(a) Net Worth. The Company will not permit Net Worth at any time to be
less than $1,100,000,000.
(b) Debt. The Company will not permit the ratio of Consolidated Debt
to Total Capitalization at any time to be greater than .65 to 1.0.
(c) Liens, Etc. The Company will not, and will not permit any of its
Subsidiaries to, incur any Liabilities secured by a Lien upon any of the
assets of the Company or any such Subsidiary or upon any shares of stock or
any long-term receivable of the Company due from any of its Subsidiaries
(whether such assets, shares of stock or long-term receivables are now
owned or hereafter acquired) without in any such case effectively providing
concurrently with the incurrence of any such Liability that all sums
payable at that time or thereafter under this Agreement and the Guaranty
(together with, if the Company shall so determine, any other Liabilities of
the Company or such Subsidiary then existing or thereafter created which is
not subordinate to such sums) shall be secured equally and ratably with (or
at the option of the Company, prior to) such Liability, so long as such
Liability shall be so secured; provided, however, that nothing in this
Section 5.02(c) shall prevent, restrict or apply to (and there shall be
excluded from secured Debt in any computation under this Section 5.02(c))
Liabilities secured by):
(i) Liens for taxes, assessments, or similar charges, incurred
in the ordinary course of business that are not yet past due or which
are being contested by the Company or such Subsidiary in good faith
and against which adequate reserves as required by GAAP have been
established by the Company or such Subsidiary, as the case may be;
(ii) Pledges or deposits made in the ordinary course of business
to secure payment of worker's compensation, or to participate in any
fund in connection with
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worker's compensation, unemployment insurance, old-age pensions or
other social security programs;
(iii) Liens of mechanics, materialmen, repairmen, warehousemen,
carriers or other like Liens, securing obligations incurred in the
ordinary course of business that are not yet past due or which are
being contested by the Company or such Subsidiary in good faith and
against which adequate reserves as required by GAAP have been
established by the Company or such Subsidiary, as the case may be;
(iv) Liens which secure Liabilities owing by a Subsidiary of the
Company to the Company or to another Subsidiary of the Company;
(v) Deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(vi) Easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary; and
(vii) Liens not otherwise permitted under this Section 5.02(c)
which secure Liabilities permitted hereunder not exceeding, as to the
Company and its Consolidated Subsidiaries, 10% of Consolidated Assets
at any time outstanding.
(d) Stock of Subsidiaries, Merger, Sale of Assets, Etc. The Company
will not permit any of its Subsidiaries to issue or dispose of its stock
(other than directors' qualifying shares) except to the Company or to
another Subsidiary of the Company, and the Company will not and will not
permit any of its Subsidiaries to sell or otherwise dispose of any shares
of stock of, or obligation (howsoever evidenced) from, any Subsidiary of
the Company, or to merge or consolidate with any other corporation or sell,
lease or transfer or otherwise dispose of all or a substantial part of its
assets (as distinguished from sales of excess land and other assets in the
ordinary course of business which are permitted), whether in one
transaction or a series of transactions, provided, however, that so long as
after giving effect thereto no Default or Event of Default shall exist, the
following transactions shall be permitted pursuant to this Section 5.02(d):
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(i) Any corporation including any Subsidiary of the Company may
merge or consolidate with the Company provided that the Company shall
be the continuing or surviving corporation;
(ii) Any corporation may merge into or consolidate with any
Subsidiary of the Company provided that the continuing or surviving
corporation is a Subsidiary of the Company;
(iii) Any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any of its assets to the Company or another
Subsidiary of the Company;
(iv) Provident may sell, lease, transfer or otherwise dispose of
the stock or any assets of any Enforcement Subsidiary in an
arm's-length transaction;
(v) The Company may, with respect to any Acquisition, effect a
disposition of stock or assets to the extent required pursuant to any
agreement or consent order entered into between the Company and the
Federal Trade Commission in connection with and as a condition to such
Acquisition; and
(vi) The Company or any of its Subsidiaries may sell or
otherwise dispose of the stock of, or all or substantially all of the
assets of, any of their respective Subsidiaries if, after giving
effect to such sale or other disposition the aggregate amount of all
such sales and dispositions by the Company and its Subsidiaries
(including all dispositions pursuant to clause (vi) above) occurring
on and after the Execution Date to the date of such sale or
disposition do not exceed 10% of Consolidated Assets on the date of
such sale or disposition.
Consensual Liens granted by the Company or any of its Subsidiaries
permitted pursuant to Section 5.02(c) shall not constitute a "disposition"
for purposes of this Section 5.02(d) until such time as holder of any such
Lien forecloses or otherwise enforces such Lien.
(e) Change in Accounting Method. The Company will not and will not
permit any of its Subsidiaries to make any change in the method of
computing depreciation for financial statement purposes or any other
material change in accounting methods other than such changes as may be
required by the Financial Accounting Standards Board or the Securities and
Exchange Commission or to conform newly acquired Subsidiaries to the
Company's accounting methods. Upon making any such change, the Company will
promptly give the Banks notice thereof.
(f) Change of Business. The Company will not and will not permit any
of its Subsidiaries to engage in a line or lines of business other than
those being engaged in by the
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Company or one or more of its existing Subsidiaries on the date of this
Agreement and lines of business related to the death care industry.
(g) Guaranties and Letters of Credit. The Company will not and will
not permit any Subsidiary of the Company to make or permit to remain
outstanding any Assurance or any Letter of Credit unless, after giving
effect thereto, the aggregate amount of all Assured Obligations and Letter
of Credit Obligations then outstanding shall not exceed 20% of Net Worth,
excluding, without duplication, the sum of the aggregate outstanding amount
of all Debt of the Company and its Subsidiaries guaranteed by any such
Assurances.
(h) ERISA. The Company will not at any time permit any Plan to:
(i) Engage in any "prohibited transaction" as such term is
defined in Section 4975 of the Code or in Section 406 of ERISA for
which there is no applicable exemption;
(ii) Incur any "accumulated funding deficiency" as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether
or not waived;
(iii) Be terminated under circumstances which are likely to
result in the imposition of a Lien on the property of the Company or
any member of the ERISA Group pursuant to Section 4068 of ERISA, if
and to the extent such termination is within the control of the
Company; or
(iv) Cease to comply in any material respect with the provisions
of the Code and ERISA applicable to such Plan,
if any event or condition described in clause (i), (ii), (iii) or (iv)
above is likely to subject the Company or any member of its ERISA Group to
a liability which, in the aggregate, is material in relation to the
business, operations, property or condition, financial or otherwise, of the
Company and the other members of its ERISA Group on a consolidated basis.
(i) Restriction on Use of Proceeds. No Borrower nor any agent acting
on behalf of any Borrower has taken or will take any action, or has
suffered to exist or will suffer to exist any condition, that might cause
this Agreement or any Loan to violate Regulation G, Regulation U,
Regulation X, or any other regulation of the Board or to violate the
Securities Exchange Act of 1934, as amended, in each case as in effect now
or as the same may hereafter be in effect. No Borrower will use, directly
or indirectly, the proceeds of any Loan hereunder to acquire any security
(within the meaning of the Securities Exchange Act of 1934, as amended), in
any tender offer subject to Section 13 or 14 of the Securities Exchange Act
of 1934, as amended, unless such tender offer has been approved by the
Board of
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Directors (or other analogous body) of the issuer of the securities that
are the subject of such tender offer, so long as a majority of the
directors (or members) constituting such Board (or such body) were
directors (or members) at least 30 days prior to the making of such tender
offer.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Failure to Pay the Loans or the Guaranty. The Company or any
Borrowing Subsidiary shall fail to pay or prepay (i) any principal of or
interest on any Loan or, in the case of the Company, any of the Guaranteed
Obligations, when due under this Agreement or (ii) any other amount due
hereunder within ten days following the date on which payment of such other
amount is due; or
(b) Failure to Pay Certain Other Indebtedness. The Company or any of
its Subsidiaries does not pay principal of or interest on any other Debt,
Assured Obligation or Letter of Credit Obligation, in an amount of
$10,000,000 or more, owed to a financial institution, when due or within
any grace period allowed by such Debt, Assured Obligation or Letter of
Credit Obligation, or if the holder of such other Debt, Assured Obligation
or Letter of Credit Obligation declares, or may declare, such other Debt,
Assured Obligation or Letter of Credit Obligation due prior to its stated
maturity because of the Company's or such Subsidiary's default thereunder
unless such default is waived or cured within one business day of its
discovery; or
(c) Failure to Pay Other Indebtedness. The Company or any of its
Subsidiaries does not pay principal of or interest on any Debt, Assured
Obligation or Letter of Credit Obligation, in an amount of $10,000,000 or
more (except those described in Sections 6.01(a) and 6.01(b)) within five
days after the date due (or within any longer period of grace that may be
allowed by the terms thereof) or if the holder or holders (or a trustee on
behalf of such holder or holders) of such other obligation declares such
Debt, Assured Obligation or Letter of Credit Obligation due (or such Debt,
Assured Obligation or Letter of Credit Obligation becomes due without such
declaration) prior to its stated maturity because of the Company's or such
Subsidiary's default thereunder, provided that if the holder of any such
Debt, Assured Obligation or Letter of Credit Obligation accelerates the
maturity thereof and the Company or such Subsidiary promptly (and in any
case within 30 days following such acceleration) pays such Debt, Assured
Obligation or Letter of Credit Obligation, it shall not be in default under
this Section 6.01(c) by reason of such acceleration; or
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(d) Misrepresentation. Any material representation or warranty made or
deemed made by or on behalf of the Company or any Borrowing Subsidiary
herein or in any writing furnished in connection with this Agreement shall
be false or misleading in any material respect when made or deemed made or
furnished; or
(e) Violation of Certain Covenants. The Company violates any covenant,
agreement or condition contained in Section 5.02; or
(f) Violation of Other Covenants. The Company or any Borrowing
Subsidiary violates any other covenant, agreement or condition contained
herein and such violation shall not have been remedied within 30 days after
written notice shall have been given to the Company or such Borrowing
Subsidiary by the Administrative Agent; or
(g) Assignment for Benefit of Creditors. The Company or any of its
Material Subsidiaries makes an assignment for the benefit of creditors; or
(h) Voluntary Bankruptcy. The Company or any of its Material
Subsidiaries applies to any tribunal for the appointment of a trustee or
receiver or custodian of any substantial part of the assets of the Company
or such Material Subsidiary, or commences any proceedings relating to the
Company or such Material Subsidiary under any bankruptcy, reorganization,
rearrangement, insolvency, readjustment of debt, dissolution or other
liquidation law of any jurisdiction; or
(i) Involuntary Bankruptcy. Any such application is filed, or any such
proceedings are commenced, against the Company or any of its Material
Subsidiaries, and the Company or such Material Subsidiary indicates its
approval, consent or acquiescence, or an order is entered appointing such
trustee or receiver or custodian, or adjudicating the Company or any of its
Material Subsidiaries bankrupt or insolvent, or approving the petition in
any such proceedings, and such order remains in effect for 60 days; or
(j) Dissolution or Split-Up. Any order is entered in any proceeding
against the Company or any of its Subsidiaries (i) which shall have
contributed more than 15% of Consolidated Net Income during the immediately
preceding fiscal year or (ii) the tangible assets of which shall have
constituted more than 15% of Tangible Consolidated Assets of the Company as
at the end of the immediately preceding fiscal year, decreeing the
dissolution or split-up of the Company or such Subsidiary, and such order
remains in effect for 60 days; or
(k) Failure to Pay Dividend. The Company does not pay any dividend on
any of its capital stock as declared or permits any dividend to accumulate
on any of its capital stock in respect of which cumulative dividends are
provided for; or
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(l) Undischarged Judgment. Final judgment for the payment of money in
excess of $10,000,000 shall be rendered against the Company or any of its
Subsidiaries and the same shall remain undischarged for a period of 30 days
during which execution shall not be effectively stayed; or
(m) ERISA Default. The actuarial present value of unfunded vested
benefits under all Plans (other than multiemployer plans, as defined in
Section 3(37) of ERISA) shall exceed $10,000,000 (excluding in such
computation any Plan with assets greater than benefit liabilities), or any
one or more of the following events shall occur with respect to a Plan or
Plans and such occurrence (or occurrences, in the aggregate) could result
in liability of the Company or any of its Subsidiaries to the PBGC or to
the Plan or Plans in the aggregate amount of $10,000,000 or more for the
Company and such Subsidiaries taken as a whole:
(i) Any finding or determination shall be made under Section
4041(c) or (e) of ERISA;
(ii) Any fact or circumstance shall occur which, in the
reasonable opinion of the Majority Banks, provides grounds for the
commencement of any proceeding under Section 4042 of ERISA;
(iii) Any proceeding shall be commenced under Section 4042 of
ERISA;
(iv) Any Plan termination; or
(v) Any full or partial withdrawal (as such terms are defined
in Title IV of ERISA);
then, (i) if any Event of Default described in Section 6.01(h) or Section
6.01(i) shall occur and be continuing, all Loans then outstanding hereunder
and interest accrued thereon and all other liabilities hereunder shall
thereupon become and be immediately due and payable without presentment,
demand, protest, notice of intent to accelerate, or other notice of any
kind to any Borrower or any other Person, all of which are hereby expressly
waived by each Borrower, the Commitments shall thereupon immediately
terminate and the Banks shall be under no further obligation to make Loans
hereunder, and (ii) if any other Event of Default shall occur and be
continuing, the Administrative Agent shall (A) if requested by the Majority
Banks, by notice to the Borrowers, terminate the Commitments and they shall
thereupon immediately terminate and (B) if requested by the Majority Banks,
by notice to the Borrowers, declare all Loans then outstanding hereunder
and interest accrued thereon and all other liabilities of the Borrowers
hereunder and under the Agent's Fee Letter to be immediately due and
payable, and the same shall thereupon become and be forthwith due and
payable without presentment, demand, protest, notice of intent to
accelerate, or other notice
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of any kind to any Borrower or any other Person, all of which are hereby
expressly waived by each Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Subject to Section 7.06, each
Bank hereby irrevocably appoints and authorizes the Administrative Agent to act
on its behalf and to exercise such powers under this Agreement and the Guaranty
as are specifically delegated to or required of the Administrative Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including enforcement or collection of the Loans) or the Guaranty, the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Banks, and such instructions shall be binding upon all Banks;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement, the Guaranty or applicable law.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or the Loans (a) with the consent or at the
request of the Majority Banks or (b) in the absence of its or their own gross
negligence or willful misconduct (IT BEING THE EXPRESS INTENTION OF THE PARTIES
THAT THE ADMINISTRATIVE AGENT AND ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES
SHALL HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS UNDER THIS SECTION 7.02
RESULTING FROM THEIR SOLE ORDINARY OR CONTRIBUTORY NEGLIGENCE). Without
limitation of the generality of the foregoing, the Administrative Agent: (i) may
treat the original holder, or the holder named in the most recent notice of
assignment received by it pursuant to this Section 7.02, as the case may be, of
each Loan as the holder thereof until the Administrative Agent receives written
notice of the assignment or transfer thereof signed by such holder and in form
satisfactory to the Administrative Agent; (ii) may consult with legal counsel
(including counsel for any Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement or any Loan; (iv)
except as otherwise expressly provided herein, shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or to inspect the property (including
the books and records) of any Borrower; (v) shall not be responsible to any Bank
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value
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of this Agreement or any instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement or any Loan
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by facsimile transmission) reasonably believed by it to be genuine
and signed or sent by the proper party or parties.
SECTION 7.03. Administrative Agent and Affiliates; Chase and
Affiliates. Without limiting the right of any other Bank to engage in any
business transactions with the Borrowers or any of its Affiliates, with respect
to their Commitments and the Loans, if any, made by them, Chase and each other
Bank that may become the Administrative Agent shall have the same rights and
powers under this Agreement and its Loans as any other Bank and may exercise the
same as though it were not the Administrative Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include Chase and any such
other Bank, in their individual capacities. Chase, each other Person who becomes
the Administrative Agent and their respective Affiliates may be engaged in, or
may hereafter engage in, one or more loans, letters of credit, leasing or other
financing activities not the subject of this Agreement (collectively, the "Other
Financings") with any Borrower or any of its Affiliates, or may act as trustee
on behalf of, or depositary for, or otherwise engage in other business
transactions with, any Borrower or any of its Affiliates (all Other Financings
and other such business transactions being collectively, the "Other Activities")
with no responsibility to account therefor to the Banks. Without limiting the
rights and remedies of the Banks specifically set forth herein, no other Bank by
virtue of being a Bank hereunder shall have any interest in (a) any Other
Activities, (b) any present or future guarantee by or for the account of any
Borrower not contemplated or included herein, (c) any present or future offset
exercised by the Administrative Agent in respect of any such Other Activities,
(d) any present or future property taken as security for any such Other
Activities or (e) any property now or hereafter in the possession or control of
the Administrative Agent which may be or become security for the obligations of
any Borrower or any of its Affiliates hereunder and under the Loans by reason of
the general description of indebtedness secured, or of property contained in any
other agreements, documents or instruments related to such Other Activities;
provided, however, that if any payment in respect of such guarantees or such
property or the proceeds thereof shall be applied to reduction of the
obligations hereunder, then each Bank shall be entitled to share in such
application according to its pro rata portion of such obligations.
SECTION 7.04. Bank Credit Decision. Each Bank acknowledges and agrees
that it has, independently and without reliance upon the Administrative Agent or
any other Bank and based on the financial statements referred to in Section 4.07
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges and agrees that it will, independently and without reliance upon
the Administrative Agent or any other Bank 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.
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SECTION 7.05. Administrative Agent's Indemnity. The Administrative
Agent shall not be required to take any action hereunder or to prosecute or
defend any suit in respect of this Agreement or the Loans unless indemnified to
the Administrative Agent's satisfaction by the Banks against loss, cost,
liability and expense. If any indemnity furnished to the Administrative Agent
shall become impaired, it may call for additional indemnity and cease to do the
acts indemnified against until such additional indemnity is given. In addition,
the Banks agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrowers), ratably according to the respective aggregate
principal amounts of the Committed Loans then owing to each of them (or if no
Committed Loans are at the time outstanding, ratably according to the respective
aggregate amounts of their Commitments, or if no Commitments are outstanding,
the respective aggregate amounts of the Commitments immediately prior to the
time the Commitments ceased to be outstanding), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement (including any action taken or
omitted under Article II). Without limitation of the foregoing, each Bank agrees
to reimburse the Administrative Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including reasonable counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
administration, or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrowers. The provisions of
this Section 7.05 shall survive the termination of this Agreement and/or the
payment or assignment of any of the Loans. NOTWITHSTANDING THE FOREGOING, NO
BANK SHALL BE LIABLE UNDER THIS SECTION 7.05 TO THE ADMINISTRATIVE AGENT FOR ANY
PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS DUE TO THE ADMINISTRATIVE
AGENT RESULTING FROM THE ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. EACH BANK AGREES, HOWEVER, THAT IT EXPRESSLY INTENDS, UNDER THIS
SECTION 7.05, TO INDEMNIFY THE ADMINISTRATIVE AGENT RATABLY AS AFORESAID FOR ALL
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES AND DISBURSEMENTS ARISING OUT OF OR RESULTING FROM THE
ADMINISTRATIVE AGENT'S SOLE, ORDINARY OR CONTRIBUTORY NEGLIGENCE.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Banks and the
Borrowers and may be removed as Administrative Agent under this Agreement at any
time, with or without cause, by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 calendar days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Banks' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America or of
any state thereof and
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having a combined capital and surplus of at least $500,000,000. 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 retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's resignation or removal as Administrative
Agent hereunder, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
SECTION 7.07. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent shall have received notice
from a Bank or a Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of default." If
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Banks; provided, however, if such notice is received
from a Bank, the Administrative Agent also shall give notice thereof to the
Company. The Administrative Agent shall be entitled to take action or refrain
from taking action with respect to such Default or Event of Default as provided
in Section 7.01 and Section 7.02.
SECTION 7.08. No Duty of Co-Agents. No Co-Agent shall have any duties,
responsibilities or liabilities in such capacity with respect to the
administration or enforcement of this Agreement.
ARTICLE VIII
GUARANTY
In consideration of the premises and in order to induce the Banks to
make Loans hereunder to the Borrowing Subsidiaries:
SECTION 8.01. Guaranty. The Company hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of each Borrowing
Subsidiary to pay the principal of and interest on the Loans owed by such
Borrowing Subsidiary (including interest accruing or becoming owing both prior
to and subsequent to the commencement of any proceeding against or with respect
to such Borrowing Subsidiary under any chapter of the Bankruptcy Code of 1978
(11 U.S.C. Section 101 et seq.), as from time to time amended, or any similar
statute in any other jurisdiction, whether or not such interest may be the
subject of an allowable claim in such proceeding), and all other amounts from
time to time payable by such Borrowing Subsidiary under this Agreement (such
obligations with respect to the Borrowing Subsidiaries being herein called the
"Guaranteed Obligations"), and agrees to pay any and all reasonable costs and
expenses incurred by each Bank and the Administrative Agent in
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enforcing any rights under this guaranty (including the reasonable fees and
expenses of outside counsel or the reasonable allocated costs of in-house
counsel). This guaranty is an absolute, irrevocable, unconditional, present and
continuing guaranty of payment and not of collectibility and is in no way
conditioned or contingent upon any attempt to collect from any Borrowing
Subsidiary, or any other action, occurrence or circumstance whatsoever.
SECTION 8.02. Guaranty Absolute. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Loans owed by the Borrowing Subsidiaries. The Company
agrees that the Guaranteed Obligations, this Agreement and all other instruments
and agreements applicable to the Company and the Borrowing Subsidiaries (this
Agreement and all such other instruments and agreements being hereinafter
referred to in this Article VIII as the "Documents") may be extended or renewed,
and Loans repaid and reborrowed in whole or in part, without notice to or assent
by the Company, and that it will remain bound upon this guaranty notwithstanding
any extension, renewal or other alteration of any Guaranteed Obligations or
Documents, or any repayment and reborrowing of Loans. To the maximum extent
permitted by applicable law, except as expressly provided in this Agreement, the
obligations of the Company under this guaranty shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms
hereof under any circumstances whatsoever, including:
(a) any extension, renewal, modification, settlement, compromise,
waiver or release in respect of any Guaranteed Obligations;
(b) any extension, renewal, amendment, modification, rescission,
waiver or release in respect of any of the Documents;
(c) any release, exchange, substitution, non-perfection or invalidity
of, or failure to exercise rights or remedies with respect to, any direct
or indirect security for any Guaranteed Obligations, including the release
of any Borrowing Subsidiary or other Person liable on any Guaranteed
Obligations;
(d) any change in the corporate existence, structure or ownership of
the Company, any Borrowing Subsidiary or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Company, any
Borrowing Subsidiary or any of their respective assets;
(e) the existence of any claim, defense, set-off or other rights or
remedies which any Borrowing Subsidiary at any time may have against the
Company, or the Company or such Borrowing Subsidiary may have at any time
against the Administrative Agent, any Bank, any other Borrowing Subsidiary
or any other Person, whether in connection with this Agreement, the other
Documents, the transactions contemplated thereby or any other
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transaction other than by the payment in full by the Borrowing Subsidiaries
of the Guaranteed Obligations after the termination of the Commitments of
the Banks;
(f) any invalidity or unenforceability for any reason of this
Agreement or any other Document, or any provision of law purporting to
prohibit the payment or performance by the Company or any Borrowing
Subsidiary of the Guaranteed Obligations or the Documents, or of any other
obligation to the Administrative Agent or any Bank; or
(g) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing.
SECTION 8.03. Effect of Debtor Relief Laws. If after receipt of any
payment of, or proceeds of any security applied (or intended to be applied) to
the payment of all or any part of the Guaranteed Obligations, the Administrative
Agent or any Bank is for any reason compelled to surrender or voluntarily
surrenders, such payment or proceeds to any Person (a) because such payment or
application of proceeds is or may be avoided, invalidated, declared fraudulent,
set aside, determined to be void or voidable as a preference, fraudulent
conveyance, fraudulent transfer, impermissible set-off or a diversion of trust
funds or (b) for any other reason, including (i) any judgment, decree or order
of any court or administrative body having jurisdiction over the Administrative
Agent, any Bank or any of their respective properties or (ii) any settlement or
compromise of any such claim effected by the Administrative Agent or any Bank
with any such claimant (including any Borrowing Subsidiary), then the Guaranteed
Obligations or part thereof intended to be satisfied shall be reinstated and
continue, and this guaranty shall continue in full force as if such payment or
proceeds had not been received, notwithstanding any revocation thereof or the
cancellation of any instrument evidencing any Guaranteed Obligations or
otherwise; and the Company shall be liable to pay the Administrative Agent and
the Banks, and hereby does indemnify the Administrative Agent and the Banks and
hold them harmless for the amount of such payment or proceeds so surrendered and
all expenses (including reasonable attorneys' fees, court costs and expenses
attributable thereto) incurred by the Administrative Agent or any Bank in the
defense of any claim made against it that any payment or proceeds received by
the Administrative Agent or any Bank in respect of all or part of the Guaranteed
Obligations must be surrendered. The provisions of this paragraph shall survive
the termination of this Agreement, and any satisfaction and discharge of the
Borrowing Subsidiaries by virtue of any payment, court order or any federal or
state law.
SECTION 8.04. Subrogation. Notwithstanding any payment or payments
made by the Company hereunder, or any set-off or application by the
Administrative Agent or any Bank of any security or of any credits or claims,
the Company will not assert or exercise any rights of the Administrative Agent
or any Bank or of the Company against any Borrowing Subsidiary to recover the
amount of any payment made by the Company to the Administrative Agent or any
Bank hereunder by way of any claim, remedy or subrogation, reimbursement,
exoneration, contribution, indemnity, participation or otherwise arising by
contract, by statute, under common law or
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otherwise, and the Company shall not have any right of recourse to or any claim
against assets or property of any Borrowing Subsidiary, until all of the
obligations of the Company and the Borrowing Subsidiaries under the Documents
are paid in full. If any amount shall nevertheless be paid to the Company by a
Borrowing Subsidiary prior to payment in full of the obligations of the Company
and such Borrowing Subsidiary under the Documents, such amount shall be held in
trust for the benefit of the Administrative Agent and the Banks and shall
forthwith be paid to the Administrative Agent to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured. The provisions of this
paragraph shall survive the termination of this Agreement, and any satisfaction
and discharge of the Borrowing Subsidiaries by virtue of any payment, court
order or any federal or state law.
SECTION 8.05. Subordination. If the Company becomes the holder of any
indebtedness payable by a Borrowing Subsidiary, the Company hereby subordinates
all indebtedness owing to it from such Borrowing Subsidiary to all indebtedness
of such Borrowing Subsidiary to the Administrative Agent and the Banks, and
agrees that during the continuance of any Default or Event of Default it shall
not accept any payment on the same until payment in full of the obligations of
such Borrowing Subsidiary under this Agreement and the other Documents after the
termination of the Commitments of the Banks, and shall in no circumstance
whatsoever attempt to set-off or reduce any obligations hereunder because of
such indebtedness. If any amount shall nevertheless be paid to the Company by a
Borrowing Subsidiary prior to payment in full of the Guaranteed Obligations,
such amount shall be held in trust for the benefit of the Administrative Agent
and the Banks and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations, whether matured or
unmatured.
SECTION 8.06. Waiver. The Company hereby waives promptness, diligence,
notice of acceptance and, to the extent permitted by law, any other notice with
respect to any of the Guaranteed Obligations and this guaranty and waives
presentment, demand of payment, notice of intent to accelerate, notice of
dishonor or nonpayment and any requirement that the Administrative Agent or any
Bank institute suit, collection proceedings or take any other action to collect
the Guaranteed Obligations, including any requirement that the Administrative
Agent or any Bank protect, secure, perfect or insure any Lien against any
property subject thereto or exhaust any right or take any action against any
Borrowing Subsidiary or any other Person or any collateral (it being the
intention of the Administrative Agent, the Banks and the Company that this
guaranty is to be a guaranty of payment and not of collection). It shall not be
necessary for the Administrative Agent or any Bank, in order to enforce any
payment by the Company hereunder, to institute suit or exhaust its rights and
remedies against any Borrowing Subsidiary or any other Person, including others
liable to pay any Guaranteed Obligations, or to enforce its rights against any
security ever given to secure payment thereof. The Company hereby expressly
waives to the maximum extent permitted by applicable law each and every right to
which it may be entitled by virtue of the suretyship laws of the State of Texas,
including any and all rights it may have pursuant to Rule 31, Texas Rules of
Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code
and Chapter 34 of the
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Texas Business and Commerce Code. The Company hereby waives marshaling of assets
and liabilities, notice by the Administrative Agent or any Bank of any
indebtedness or liability to which such Bank applies or may apply any amounts
received by such Bank, and of the creation, advancement, increase, existence,
extension, renewal, rearrangement or modification of the Guaranteed Obligations.
The Company expressly waives, to the extent permitted by applicable law, the
benefit of any and all laws providing for exemption of property from execution
or for valuation and appraisal upon foreclosure.
SECTION 8.07. Full Force and Effect. This Guaranty is a continuing
guaranty and shall remain in full force and effect until all of the obligations
of the Company and the Borrowing Subsidiaries under this Agreement and the other
Documents and all other amounts payable under this guaranty have been paid in
full (after the termination of the Commitments of the Banks). All rights,
remedies and powers provided in this guaranty may be exercised, and all waivers
contained in this guaranty may be enforced, only to the extent that the exercise
or enforcement thereof does not violate any provisions of applicable law which
may not be waived.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Company herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Majority Banks in all cases, and then, in any case, such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each Bank affected thereby, do any of the
following: (a) change the definition of "Majority Banks" contained in Section
1.01, (b) except as expressly provided in Section 2.14(f) or Section 2.15(c),
reduce or increase the amount or alter the terms of the Commitments of any Banks
or subject any Banks to any additional obligations, (c) reduce or forgive the
principal of, or rate or amount of interest applicable to, any Loan other than
as provided in this Agreement, or any fees hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Loans or any fees
hereunder, (e) change Section 4.13, this Section 9.01, the last sentence of
Section 9.11(a) or Article VIII, (f) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Loans, or the number of Banks,
which shall be required for the Banks or any of them to take any action
hereunder or (g) release the Guaranty; and provided that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement.
SECTION 9.02. Notices, Etc. The Administrative Agent, any Bank, or the
holder of any Loan, giving consent or notice or making any request of any
Borrower provided for hereunder, shall
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notify each Bank and the Administrative Agent thereof. In the event that the
holder of any Loan (including any Bank) shall transfer such Loan, it shall
promptly so advise the Administrative Agent which shall be entitled to assume
conclusively that no transfer of any Loan has been made by any holder (including
any Bank) unless and until the Administrative Agent receives written notice to
the contrary. Notices, consents, requests, approvals, demands and other
communications (collectively "Communications") provided for or required herein
shall be in writing (including facsimile Communications) and mailed, sent by
facsimile transmission or delivered:
(a) If to any Borrower, to it:
c/o Service Corporation International
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
(b) If to the Administrative Agent, to it at:
Chase Agent Services
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Texas Commerce Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 78
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Jan Danvers
(c) If to any Bank, as specified on the signature page for such Bank
hereto or, in the case of any Person who becomes a Bank after the date hereof,
as specified on the signature page of the Assignment and Acceptance executed by
such Bank, or as to any party, such other address or facsimile number as such
party may hereafter specify for such purpose in a Communication to the other
parties hereto.
(d) All Communications shall, when mailed, sent by facsimile
transmission or delivered, be effective when deposited in the mails to any party
at its address specified above, on the
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signature page hereto, or on the signature page of such Assignment and
Acceptance (or other address designated by such party to the other parties
hereto) or sent by facsimile transmission to any party to the facsimile
transmission number as set forth herein or on the signature pages hereto, or on
the signature pages of such Assignment and Acceptance (or other facsimile number
designated by such party in a Communication to the other parties hereto) or
delivered personally to any party at its address specified above, on the
signature page hereof or on the signature page of such Assignment and Acceptance
(or other address designated by such party in a Communication to the other
parties hereto; provided, however, Communications to the Administrative Agent
pursuant to Article II or Article VII shall not be effective until received by
the Administrative Agent; and provided, further, that each Borrower shall
indemnify each of the Administrative Agent and the Banks against any costs,
claim, loss, expense (including legal fees) or liability which any of them may
sustain or incur as a consequence of any facsimile notice or communication
originating from such Borrower not being actually received by or delivered to
the intended recipient thereof or any facsimile communication purporting to
originate from such Borrower being made or delivered fraudulently.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Bank
or the Administrative Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, or any abandonment or discontinuance of any steps to
enforce such right, preclude any other or further exercise thereof or the
exercise of any other right. No notice to or demand on any Borrower in any case
shall entitle such Borrower to any other or further notice or demand in similar
or other circumstances. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9.04. Costs, Expenses and Taxes. The Company agrees to pay on
demand: (a) all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration of this
Agreement and the other documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative Agent
as to its rights and responsibilities under this Agreement, and any
modification, supplement or waiver of any of the terms of this Agreement or any
modification or extension of the Loans, and (b) all reasonable costs and
expenses of each of the Banks and the Administrative Agent (including reasonable
counsel fees and expenses of outside counsel and the reasonable allocated costs
of in-house legal services) in connection with the enforcement of this Agreement
and the Loans. In addition, unless prohibited by applicable law, the Company
shall pay any and all stamp, mortgage and similar taxes payable or determined to
be payable in connection with the execution and delivery or enforcement of this
Agreement and the Loans and the other documents to be delivered hereunder, and
agrees to save the Administrative Agent and each Bank harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery or enforcement of this
Agreement. Without prejudice to the survival of any other obligations of the
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Company hereunder, the obligations of the Company under this Section 9.04 shall
survive the termination of this Agreement and the payment or assignment of the
Loans.
SECTION 9.05. Indemnity. (a) The Company shall indemnify the
Administrative Agent, the Banks and each Affiliate thereof and their respective
directors, officers, employees and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims and damages to which any of
them may become subject, insofar as such losses, liabilities, claims and damages
arise out of or result from (i) any actual or proposed use by any Borrower of
the proceeds of any extension of credit by any Bank hereunder or (ii) any
investigation, litigation or other proceeding (including any threatened
investigation or proceeding) relating to the foregoing, and the Company shall
reimburse the Administrative Agent and each Bank, and each Affiliate thereof and
their respective directors, officers, employees and agents, upon demand for any
expenses (including legal fees) reasonably incurred in connection with any such
investigation or proceeding; but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified.
(b) WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT, IT IS THE
EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED
HEREUNDER OR THEREUNDER SHALL BE INDEMNIFIED AND HELD HARMLESS AGAINST ANY AND
ALL LOSSES, LIABILITIES, CLAIMS AND DAMAGES ARISING OUT OF OR RESULTING FROM THE
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH PERSON. Without prejudice to
the survival of any other obligations of the Company hereunder, the obligations
of the Company under this Section 9.05 shall survive the termination of this
Agreement and the payment or assignment of the Loans.
SECTION 9.06. Right of Setoff. If any Event of Default shall have
occurred and be continuing, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank or any
branch, subsidiary or Affiliate of such Bank to or for the credit or the account
of the Company and each Borrowing Subsidiary against any of and all the
obligations of the Company or such Borrowing Subsidiary now or hereafter
existing under this Agreement and any Loan held by such Bank, irrespective of
whether or not such Bank or the Administrative Agent shall have made any demand
under this Agreement and although such obligations may be unmatured. Each Bank
agrees promptly to notify the Borrower as to which such setoff and application
was made after any such setoff and application made by such Bank, but the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section 9.06 are in addition to
other rights and remedies (including other rights of setoff) which such Bank may
have.
SECTION 9.07. Governing Law. This Agreement and all other documents
executed in connection herewith (including each Assignment and Acceptance and
each Borrowing Subsidiary Counterpart), shall be deemed to be contracts and
agreements executed by the Borrowers,
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the Administrative Agent and the Banks party thereto under the laws of the State
of New York and of the United States and for all purposes shall be construed in
accordance with, and governed by, the laws of said state and of the United
States. Without limitation of the foregoing, nothing in this Agreement or in any
such other agreement shall be deemed to constitute a waiver of any rights which
any Bank may have under applicable federal legislation relating to the amount of
interest which such Bank may contract for, take, receive, reserve or charge in
respect of any Loans, including any right to contract for, take, receive,
reserve and charge interest at the rate allowed by the law of the state where
such Bank is located.
SECTION 9.08. Interest. Anything in this Agreement to the contrary
notwithstanding, no Borrower shall ever be required to pay unearned interest on
any Loan and shall never be required to pay interest on such Loan at a rate in
excess of the Highest Lawful Rate, and if the effective rate of interest which
would otherwise be payable under this Agreement and such Loan would exceed the
Highest Lawful Rate, or if the holder of such Loan shall receive any unearned
interest or shall receive monies that are deemed to constitute interest which
would increase the effective rate of interest payable by such Borrower under
this Agreement and such Loan to a rate in excess of the Highest Lawful Rate,
then (a) the amount of interest which would otherwise be payable by such
Borrower under this Agreement and such Loan shall be reduced to the amount
allowed under applicable law; and (b) any unearned interest paid by such
Borrower or any interest paid by such Borrower in excess of the Highest Lawful
Rate shall be credited on the principal of such Loan. It is further agreed that
all calculations of the rate of interest contracted for, charged or received by
any Bank under the Loans made by it, or under this Agreement, which are made for
the purpose of determining whether such rate exceeds the Highest Lawful Rate
applicable to such Bank (such Highest Lawful Rate being such Bank's "Maximum
Permissible Rate"), shall be made, to the extent permitted by usury laws
applicable to such Bank (now or hereafter enacted), by amortizing, prorating and
spreading in equal parts during the period of the full stated term of the Loans
all interest at any time contracted for, charged or received by such Bank in
connection therewith. If at any time and from time to time (y) the amount of
interest payable to any Bank on any date shall be computed at such Bank's
Maximum Permissible Rate pursuant to this Section 9.08 and (z) in respect of any
subsequent interest computation period the amount of interest otherwise payable
to such Bank would be less than the amount of interest payable to such Bank
computed at such Bank's Maximum Permissible Rate, then the amount of interest
payable to such Bank in respect of such subsequent interest computation period
shall continue to be computed at such Bank's Maximum Permissible Rate until the
total amount of interest payable to such Bank shall equal the total amount of
interest which would have been payable to such Bank if the total amount of
interest had been computed without giving effect to this Section 9.08.
SECTION 9.09. Survival of Representations, Warranties and Covenants.
All representations, warranties and covenants contained herein or made in
writing by the Borrowers in connection herewith shall survive the execution and
delivery of this Agreement, and will bind and inure to the benefit of the
respective successors and assigns of the parties hereto, whether so
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expressed or not, provided, that the undertaking of the Banks to make Loans to
the Borrowers shall not inure to the benefit of any successor or assign of any
Borrower.
SECTION 9.10. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Company and the Administrative Agent and
when the Administrative Agent shall have been notified by each Bank that such
Bank has executed it and, except as provided in Section 9.09, thereafter shall
be binding upon and inure to the benefit of the Company, any Borrowing
Subsidiaries that may become party hereto, the Administrative Agent and each
Bank and their respective successors and assigns.
SECTION 9.11. Successors and Assigns; Participations. (a) Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and permitted assigns of such party; and all
covenants, promises and agreements by or on behalf of the Company, the
Administrative Agent or the Banks that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and permitted
assigns. No Borrower may assign or transfer any of its rights or obligations
hereunder without the written consent of all the Banks.
(b) Each Bank, without the consent of the Company, may sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitments and the Loans owing to it); provided, however,
that (i) the selling Bank's obligations under this Agreement shall remain
unchanged; (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations; (iii) the participating banks or
other entities shall be entitled to the cost protection provisions contained in
Article II and Section 9.04; and (iv) the Borrowers, the Administrative Agent
and the other Banks shall continue to deal solely and directly with the selling
Bank in connection with such Bank's rights and obligations under this Agreement;
provided, however, that each Bank shall retain the sole right and responsibility
to enforce the obligations of the Borrowers relating to the Loans including the
right to approve any amendment, modification or waiver of any provision of this
Agreement; and further provided, however, the selling Bank may grant a
participant voting rights with respect to (x) amendments, modifications or
waivers with respect to any fees payable hereunder (including the amount and the
dates fixed for the payment of any such fees) or the amount of principal or the
rate of interest payable on, or the dates fixed for any payment of principal of
or interest on, the Loans and (y) amendments, modifications or waivers to, or
release of, the Guaranty. Each Bank shall provide the Company with prompt notice
of the identity of each participating bank to which a participation in its
Commitment or any Committed Loan is sold and the amount of such participation.
(c) With the prior consent of the Company and the Administrative
Agent, such consent not to be unreasonably withheld, a Bank may assign to one or
more Eligible Assignees (provided, however, no such consent shall be required if
such Eligible Assignee is a Bank or an
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Affiliate of a Bank) and, without the consent of the Company or the
Administrative Agent, a Bank may assign to one of its Affiliates, all or a
portion of its interests, rights, and obligations under this Agreement
(including all or a portion of its Commitments and the same portion of the Loans
at the time owing to it); provided, however, that (i) each such assignment shall
be of a constant, and not a varying, percentage of all the assigning Bank's
rights and obligations under this Agreement and partial assignments shall
(except in the case of assignments to an Affiliate of such Bank or to other
Banks), be in a minimum principal amount of $5,000,000 and (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register (as defined below), an Assignment
and Acceptance substantially in the form of Exhibit 9.11 (an "Assignment and
Acceptance"), together with a properly completed Administrative Questionnaire
from such Eligible Assignee and a processing and recordation fee of $2,000;
provided, however, no Borrower shall have any obligation to pay or reimburse any
Person for the payment of such processing and recordation fee, except for
assignments pursuant to Section 2.14 or Section 2.15. The Eligible Assignee
party to each Assignment and Acceptance also shall deliver a copy of its
Administrative Questionnaire to the Company. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof (unless otherwise provided in such Assignment
and Acceptance) (x) the Eligible Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (y) the assignor Bank thereunder shall,
to the extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto, provided, however, such Bank shall have the benefits of Section 2.14,
Section 2.20, Section 9.04 and Section 9.05).
(d) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the Eligible Assignee confirm to and agree with each
other and the other parties hereto as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim known to such Bank
assignor, such Bank assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any other instrument or document
furnished pursuant hereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Bank assignor makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance of its
respective obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such Eligible Assignee confirms that it has
received a copy of this Agreement together with copies of the most recent
financial statements delivered pursuant to Section 4.07 or Section 5.01(a) and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment
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and Acceptance; (iv) such Eligible Assignee will, independently and without
reliance upon the Administrative Agent, such Bank assignor or any other Bank 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; (v) such Eligible Assignee appoints and authorizes the
Administrative Agent to take such action on behalf of such Eligible Assignee and
to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; (vi) such Eligible Assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank and (vii) such
Eligible Assignee confirms that it is an Eligible Assignee as defined herein.
(e) The Administrative Agent shall maintain at its office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks and the Commitments of, and
principal amount of the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall, to the extent permitted by law,
be conclusive, in the absence of manifest error, and each Borrower, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by any Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an Eligible Assignee and, if required, the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit 9.11,
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Banks and
the Borrowers.
(g) Notwithstanding any other provision herein, any Bank may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 9.11 disclose to the assignee or
participant or proposed assignee or participant, any information relating to the
Borrowers furnished to such Bank by or on behalf of any Borrower; provided, that
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality, pursuant to
Section 9.12, of any confidential information relating to the Borrowers received
from such Bank.
(h) Anything in this Section 9.11 to the contrary notwithstanding, any
Bank may at any time, without the consent of any Borrower or the Administrative
Agent, assign and pledge all or any portion of its Commitment and the Loans
owing to it to any Federal Reserve Bank (and its transferees) as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning Bank from
its obligations hereunder. Notwithstanding the foregoing, in connection with any
such pledge of such
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Loans to the Federal Reserve Bank, any Bank may request that such Loans be
evidenced by a note or notes in form and substance satisfactory to such Bank and
the Company.
SECTION 9.12. Confidentiality. Each Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Company or
any Borrowing Subsidiary to it (including any information obtained pursuant to
Section 5.01(e)) which is clearly indicated to be confidential information,
confidential from anyone other than Persons employed or retained by such Bank or
any of its Affiliates who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loans; provided that nothing herein
shall prevent any Bank from disclosing such information (a) to any other Bank;
(b) pursuant to subpoena or upon the order of any court or administrative
agency; (c) upon the request or demand of any regulatory agency or authority
having jurisdiction over such Bank; (d) which has been publicly disclosed; (e)
to the extent reasonably required in connection with any litigation to which the
Administrative Agent, any Bank, any Borrower or their respective Affiliates may
be a party; (f) to the extent reasonably required in connection with the
exercise of any remedy hereunder; (g) to such Bank's legal counsel and
independent auditors; and (h) to any actual or proposed participant or assignee
of all or part of its rights hereunder which has agreed in writing to be bound
by the provisions of this Section 9.12.
SECTION 9.13. Separability. Should any clause, sentence, paragraph or
Section of this Agreement be judicially declared to be invalid, unenforceable or
void, such decision will not have the effect of invalidating or voiding the
remainder of this Agreement, and the parties hereto agree that the part or parts
of this Agreement so held to be invalid, unenforceable or void will be deemed to
have been stricken herefrom and the remainder will have the same force and
effectiveness as if such part or parts had never been included herein.
SECTION 9.14. Limitation by Law. All waivers, indemnities and rights
provided in this Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the provisions
of this Agreement are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement invalid or unenforceable,
in whole or in part.
SECTION 9.15. Independence of Covenants. All covenants contained in
this Agreement shall be given independent effect so that if a particular action
or condition is not permitted by any such covenant, the fact that such action or
condition would be permitted by an exception to, or otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
Event of Default if such action is taken or condition exists.
SECTION 9.16. Appointment of Company as Agent for the Other Borrowers.
Each Borrowing Subsidiary hereby irrevocably appoints the Company as its agent
for the purpose of giving on its behalf any notice and taking any other action
provided for in this Agreement, and hereby agrees that it shall be bound by any
such notice or action given or taken by the Company
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hereunder irrespective of whether or not any such notice shall have in fact been
authorized by such Borrowing Subsidiary and irrespective of whether or not the
agency provided for herein shall have theretofore been terminated.
SECTION 9.17. Judgment. The obligations of each Borrower in respect of
any sum due to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may
in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.17 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 9.18. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES. (a)
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE AGENT'S
FEE LETTER MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH
BORROWING SUBSIDIARY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS
CORPORATION SERVICE COMPANY, WITH OFFICES ON THE DATE HEREOF AT ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT
AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE
OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED
IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND
AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH BORROWING SUBSIDIARY
AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN THE STATE OF NEW YORK
ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE
ADMINISTRATIVE AGENT. EACH BORROWING SUBSIDIARY FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS
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PROVIDED IN SECTION 9.02, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT
OR ANY BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWING SUBSIDIARY IN ANY
OTHER JURISDICTION.
(b) TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY LEGAL ACTION, SUIT OR PROCEEDING,
FROM JURISDICTION OF ANY COURT OR FROM SET-OFF OR ANY LEGAL PROCESS (WHETHER
SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION
OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE) WITH RESPECT TO ITSELF OR ANY
OF ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT. EACH
BORROWER HEREBY AGREES THAT THE WAIVERS SET FORTH IN THIS SECTION 9.18 SHALL
HAVE THE FULLEST EFFECT PERMITTED UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT OF
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ AND ARE INTENDED TO BE IRREVOCABLE AND NOT
SUBJECT TO WITHDRAWAL FOR PURPOSES OF SUCH ACT.
SECTION 9.19. Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto), the Borrowing Subsidiary Counterparts, if any, the
Assignment and Acceptances, if any, and the Agent's Fee Letter embody the entire
agreement and understanding among the Company, the Administrative Agent and the
Banks relating to the subject matter hereof and thereof and supersede all prior
proposals, agreements and understandings relating to such subject matter.
SECTION 9.20. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
SERVICE CORPORATION INTERNATIONAL
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------------------------
Name:
Title:
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CO-AGENTS:
BANK OF AMERICA ILLINOIS, as Co-Agent
By:
------------------------------------------
Name:
Title:
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CITIBANK N.A., as Co-Agent
By:
------------------------------------------
Name:
Title:
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NATIONSBANK, N.A., as Co-Agent
By:
------------------------------------------
Name:
Title:
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ROYAL BANK OF CANADA, as Co-Agent
By:
------------------------------------------
Name:
Title:
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SOCIETE GENERALE, as Co-Agent
By:
------------------------------------------
Name:
Title:
FACILITY A
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as Co-Agent
By:
------------------------------------------
Name:
Title:
FACILITY A
85
BANKS
ABN AMRO BANK N.V., HOUSTON AGENCY
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
ABN AMRO Bank N.V., Houston Agency
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Ms. ▇▇▇▇▇▇▇▇▇ Zozdorado
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
ABN AMRO Bank N.V., Houston Agency
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $15,000,000.00
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Bank of America Illinois
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Bank of America Illinois
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $25,500,000.00
-2-
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $15,000,000.00
-3-
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ AGENCY
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ Agency
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ Agency
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $9,000,000.00
-4-
89
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
The Bank of Tokyo-Mitsubishi, Ltd.,
Houston Agency
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.E.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
The Bank of Tokyo-Mitsubishi, Ltd.,
Houston Agency
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.E.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $15,000,000.00
-5-
90
CIBC, INC.
By:
------------------------------------
Name:
Title:
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
CIBC, Inc.
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
CIBC, Inc.
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $15,000,000.00
-6-
91
CITIBANK, N.A.
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Citibank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 11120
Eurodollar Lending Office
Citibank, N.A.
1 Court Square, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Commitment: $25,500,000.00
-7-
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ AGENCY
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Commerzbank Aktiengesellschaft, Atlanta Agency
Promenade Two, Suite 3500
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ - AVP
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Commerzbank Aktiengesellschaft, Atlanta Agency
Promenade Two, Suite 3500
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ - AVP
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $6,000,000.00
-8-
93
CREDIT LYONNAIS NEW YORK BRANCH
By:
------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $6,000,000.00
with notices to:
Credit Lyonnais
Dallas Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-9-
94
THE FUJI BANK, LIMITED
By:
------------------------------------
Name:
Title:
One Houston Center
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
The Fuji Bank, Limited
One Houston Center
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
The Fuji Bank, Limited
One Houston Center
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $6,000,000.00
-10-
95
NATIONSBANK N.A.
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
NationsBank N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
NationsBank N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $25,500,000.00
-11-
96
ROYAL BANK OF CANADA
By:
------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Royal Bank of Canada
c/o New York Branch
Financial Square, ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Royal Bank of Canada
c/o New York Branch
Financial Square, ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $25,500,000.00
-▇▇-
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇
By:
-------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Istituto Bancario San Paolo Di Torino S.P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Istituto Bancario San Paolo Di Torino S.P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $6,000,000.00
-13-
98
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Societe Generale, Southwest Agency
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Societe Generale, Southwest Agency
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $25,500,000.00
-14-
99
SUNTRUST BANK, ATLANTA
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Suntrust Bank, Atlanta
Center 120
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Suntrust Bank, Atlanta
Center 120
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $15,000,000.00
-15-
100
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇-▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Texas Commerce Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Texas Commerce Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $30,000,000.00
-16-
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By:
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Name:
Title:
By:
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Name:
Title:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Union Bank of Switzerland
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Union Bank of Switzerland
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $25,500,000.00
-17-
102
WESTPAC BANKING CORPORATION
By:
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Name:
Title:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office
Westpac Banking Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Lending Office
Westpac Banking Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: $9,000,000.00
-18-