e10vq
United States SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the Quarterly Period Ended
December 31, 2005
Commission File Number 1-12984
Eagle Materials Inc.
Delaware
(State of Incorporation)
75-2520779
(I.R.S. Employer Identification No.)
3811 Turtle Creek Blvd., Suite 1100, Dallas, Texas 75219
(Address of principal executive offices)
(214) 432-2000
(Registrants telephone number)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes þ No o
Indicate by check mark whether the
registrant is a large accelerated
filer, an accelerated filer, or a non-accelerated filer. See
definition of accelerated filer and large accelerated
filer in Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
Large accelerated filer
þ
|
|
Accelerated filer o
|
|
Non-accelerated filer o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act.)
Yes o No þ
As of February 2, 2006, the number of outstanding shares of each of the issuers classes of common
stock was:
|
|
|
Class |
|
Outstanding Shares |
Common Stock, $.01 Par Value
|
|
8,647,086
|
Class B Common Stock, $.01 Par Value
|
|
8,105,384 |
Eagle Materials Inc. and Subsidiaries
Form 10-Q
December 31, 2005
Table of Contents
PART I. FINANCIAL INFORMATION (unaudited)
All
share and per share amounts shown in the Form 10-Q have been retroactively adjusted for the
three-for-one stock split declared by the Company on January 24, 2006.
Eagle Materials Inc. and Subsidiaries
Consolidated Statements of Earnings
(dollars in thousands, except per share data)
(unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
REVENUES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
122,450 |
|
|
$ |
87,199 |
|
|
$ |
344,394 |
|
|
$ |
261,295 |
|
Cement |
|
|
50,311 |
|
|
|
27,891 |
|
|
|
168,105 |
|
|
|
92,247 |
|
Paperboard |
|
|
17,156 |
|
|
|
18,885 |
|
|
|
55,153 |
|
|
|
55,753 |
|
Concrete and Aggregates |
|
|
21,598 |
|
|
|
15,827 |
|
|
|
68,167 |
|
|
|
53,717 |
|
Other |
|
|
|
|
|
|
|
|
|
|
2,279 |
|
|
|
193 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
211,515 |
|
|
|
149,802 |
|
|
|
638,098 |
|
|
|
463,205 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COSTS AND EXPENSES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
|
83,594 |
|
|
|
67,078 |
|
|
|
240,611 |
|
|
|
201,312 |
|
Cement |
|
|
36,306 |
|
|
|
21,103 |
|
|
|
127,839 |
|
|
|
69,362 |
|
Paperboard |
|
|
12,961 |
|
|
|
12,982 |
|
|
|
37,706 |
|
|
|
35,908 |
|
Concrete and Aggregates |
|
|
20,277 |
|
|
|
14,890 |
|
|
|
60,168 |
|
|
|
48,167 |
|
Corporate General and
Administrative |
|
|
3,835 |
|
|
|
2,810 |
|
|
|
10,900 |
|
|
|
7,408 |
|
Interest Expense, net |
|
|
1,380 |
|
|
|
575 |
|
|
|
4,210 |
|
|
|
2,154 |
|
Other |
|
|
348 |
|
|
|
137 |
|
|
|
348 |
|
|
|
969 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
158,701 |
|
|
|
119,575 |
|
|
|
481,782 |
|
|
|
365,280 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EQUITY IN EARNINGS OF
UNCONSOLIDATED
JOINT VENTURES |
|
|
6,052 |
|
|
|
7,708 |
|
|
|
18,461 |
|
|
|
21,421 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EARNINGS BEFORE INCOME TAXES |
|
|
58,866 |
|
|
|
37,935 |
|
|
|
174,777 |
|
|
|
119,346 |
|
Income Taxes |
|
|
19,879 |
|
|
|
12,068 |
|
|
|
57,560 |
|
|
|
40,147 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET EARNINGS |
|
$ |
38,987 |
|
|
$ |
25,867 |
|
|
$ |
117,217 |
|
|
$ |
79,199 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EARNINGS PER SHARE (NOTE B) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
$ |
0.74 |
|
|
$ |
0.47 |
|
|
$ |
2.20 |
|
|
$ |
1.43 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted |
|
$ |
0.73 |
|
|
$ |
0.47 |
|
|
$ |
2.17 |
|
|
$ |
1.41 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AVERAGE SHARES OUTSTANDING (NOTE B) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
52,556,763 |
|
|
|
54,942,744 |
|
|
|
53,369,853 |
|
|
|
55,350,618 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted |
|
|
53,238,468 |
|
|
|
55,587,465 |
|
|
|
54,068,484 |
|
|
|
55,981,836 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CASH DIVIDENDS PER SHARE(NOTE C) |
|
$ |
0.10 |
|
|
$ |
0.10 |
|
|
$ |
0.30 |
|
|
$ |
0.30 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to unaudited consolidated financial statements.
1
Eagle Materials Inc. and Subsidiaries
Consolidated Balance Sheets
(dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
March 31, |
|
|
|
2005 |
|
|
2005 |
|
|
|
(unaudited) |
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
Current Assets - |
|
|
|
|
|
|
|
|
Cash and Cash Equivalents |
|
$ |
60,174 |
|
|
$ |
7,221 |
|
Accounts and Notes Receivable, net |
|
|
80,231 |
|
|
|
70,952 |
|
Inventories |
|
|
67,111 |
|
|
|
63,482 |
|
|
|
|
|
|
|
|
Total Current Assets |
|
|
207,516 |
|
|
|
141,655 |
|
|
|
|
|
|
|
|
Property, Plant and Equipment - |
|
|
837,423 |
|
|
|
788,447 |
|
Less: Accumulated Depreciation |
|
|
(290,902 |
) |
|
|
(264,088 |
) |
|
|
|
|
|
|
|
Property, Plant and Equipment, net |
|
|
546,521 |
|
|
|
524,359 |
|
Investment in Joint Venture |
|
|
25,642 |
|
|
|
28,181 |
|
Goodwill and Intangible Assets |
|
|
68,013 |
|
|
|
66,960 |
|
Other Assets |
|
|
15,992 |
|
|
|
18,846 |
|
|
|
|
|
|
|
|
|
|
$ |
863,684 |
|
|
$ |
780,001 |
|
|
|
|
|
|
|
|
LIABILITIES
AND STOCKHOLDERS EQUITY |
|
|
|
|
|
|
|
|
Current Liabilities - |
|
|
|
|
|
|
|
|
Note Payable |
|
$ |
|
|
|
$ |
30,800 |
|
Accounts Payable |
|
|
58,377 |
|
|
|
40,687 |
|
Accrued Liabilities |
|
|
56,396 |
|
|
|
50,382 |
|
|
|
|
|
|
|
|
Total Current Liabilities |
|
|
114,773 |
|
|
|
121,869 |
|
|
|
|
|
|
|
|
Long-term Debt |
|
|
200,000 |
|
|
|
54,000 |
|
Deferred Income Taxes |
|
|
115,828 |
|
|
|
118,764 |
|
Stockholders Equity (Note B) |
|
|
|
|
|
|
|
|
Preferred Stock, Par Value $0.01; Authorized 5,000,000 Shares;
None Issued |
|
|
|
|
|
|
|
|
Common Stock, Par Value $0.01; Authorized 50,000,000 Shares; Issued
and Outstanding 26,060,335 and 29,178,027 Shares, respectively, Class B
Common Stock, Par Value $0.01; Authorized 50,000,000 Shares;
Issued and Outstanding 24,335,652 and 25,497,807 Shares, respectively |
|
|
504 |
|
|
|
547 |
|
|
|
|
|
|
|
|
|
|
Capital in Excess of Par Value |
|
|
|
|
|
|
|
|
Accumulated Other Comprehensive Losses |
|
|
(1,842 |
) |
|
|
(1,842 |
) |
Retained Earnings |
|
|
434,421 |
|
|
|
486,663 |
|
|
|
|
|
|
|
|
Total Stockholders Equity |
|
|
433,083 |
|
|
|
485,368 |
|
|
|
|
|
|
|
|
|
|
$ |
863,684 |
|
|
$ |
780,001 |
|
|
|
|
|
|
|
|
See notes to the unaudited consolidated financial statements.
2
Eagle Materials Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(unaudited dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
For the Nine Months Ended |
|
|
|
December 31, |
|
|
|
2005 |
|
|
2004 |
|
CASH FLOWS FROM OPERATING ACTIVITIES |
|
|
|
|
|
|
|
|
Net Earnings |
|
$ |
117,217 |
|
|
$ |
79,199 |
|
Adjustments to Reconcile Net Earnings to Net Cash Provided
by Operating Activities, Net of Effect of Non-Cash Activity |
|
|
|
|
|
|
|
|
|
Depreciation, Depletion and Amortization |
|
|
28,815 |
|
|
|
25,012 |
|
Deferred Income Tax (Benefit) Provision |
|
|
(2,528 |
) |
|
|
6,146 |
|
Stock Compensation Expense |
|
|
2,138 |
|
|
|
1,169 |
|
Equity in Earnings of Unconsolidated Joint Ventures |
|
|
(18,461 |
) |
|
|
(21,421 |
) |
Distributions from Joint Ventures |
|
|
21,000 |
|
|
|
25,601 |
|
Increase in Accounts and Notes Receivable |
|
|
(9,279 |
) |
|
|
(4,737 |
) |
(Increase) Decrease in Inventories |
|
|
(3,629 |
) |
|
|
2,281 |
|
Increase in Accounts Payable and Accrued Liabilities |
|
|
23,738 |
|
|
|
9,584 |
|
Increase (Decrease) in Other, net |
|
|
2,168 |
|
|
|
(1,751 |
) |
Increase in Income Taxes Payable |
|
|
2,759 |
|
|
|
7,521 |
|
|
|
|
|
|
|
|
Net Cash Provided by Operating Activities |
|
|
163,938 |
|
|
|
128,604 |
|
|
|
|
|
|
|
|
|
CASH FLOWS FROM INVESTING ACTIVITIES |
|
|
|
|
|
|
|
|
Property, Plant and Equipment Additions |
|
|
(51,956 |
) |
|
|
(16,455 |
) |
Proceeds from Asset Dispositions |
|
|
|
|
|
|
1,382 |
|
|
|
|
|
|
|
|
Net Cash Used in Investing Activities |
|
|
(51,956 |
) |
|
|
(15,073 |
) |
|
|
|
|
|
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
|
|
|
|
Issuance of Senior Notes |
|
|
200,000 |
|
|
|
|
|
Reduction in Long-term Debt |
|
|
(54,000 |
) |
|
|
(58,700 |
) |
(Reduction in) Addition to Note Payable |
|
|
(30,800 |
) |
|
|
6,000 |
|
Dividends Paid to Stockholders |
|
|
(16,191 |
) |
|
|
(16,702 |
) |
Retirement of Common Stock |
|
|
(159,637 |
) |
|
|
(31,186 |
) |
Proceeds from Stock Option Exercises |
|
|
1,599 |
|
|
|
2,060 |
|
|
|
|
|
|
|
|
Net Cash Used in Financing Activities |
|
|
(59,029 |
) |
|
|
(98,528 |
) |
|
|
|
|
|
|
|
|
NET INCREASE IN CASH AND CASH EQUIVALENTS |
|
|
52,953 |
|
|
|
15,003 |
|
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD |
|
|
7,221 |
|
|
|
3,536 |
|
|
|
|
|
|
|
|
CASH AND CASH EQUIVALENTS AT END OF PERIOD |
|
$ |
60,174 |
|
|
$ |
18,539 |
|
|
|
|
|
|
|
|
See notes to the unaudited consolidated financial statements.
3
Eagle Materials Inc. and Subsidiaries
Notes to Unaudited Consolidated Financial Statements
December 31, 2005
(A) BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements as of and for the three and nine
month periods ended December 31, 2005, include the accounts of Eagle Materials Inc. and its
majority owned subsidiaries (EXP, the Company or we) and have been prepared by the Company,
without audit, pursuant to the rules and regulations of the Securities and Exchange Commission.
These unaudited consolidated financial statements should be read in conjunction with the audited
consolidated financial statements and the notes thereto included in the Companys Annual Report on
Form 10-K for the fiscal year ended March 31, 2005 filed with the Securities and Exchange
Commission on June 10, 2005.
Certain information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations, although the Company believes that the disclosures are
adequate to make the information presented not misleading. In the opinion of the Company, all
adjustments (consisting solely of normal recurring adjustments) necessary to present fairly the
information in the following unaudited consolidated financial statements of the Company have been
included. The results of operations for such interim periods are not necessarily indicative of the
results for the full year.
Certain prior period amounts have been reclassified to conform to the current years
presentation.
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at
the date of the financial statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Recent Accounting Pronouncements
Inventory Costs. In November 2004, the FASB issued Statement of Financial Accounting
Standards No. 151 (FAS No. 151), Inventory Costs, an amendment of APB No. 43, Chapter 4. The
amendments made by FAS No. 151 require that abnormal amounts of idle facility expense, freight,
handling costs, and wasted materials (spoilage) be recognized as current-period charges and that
the allocation of fixed production overheads to inventory be based on the normal capacity of
production facilities. FAS No. 151 is effective for inventory costs incurred during fiscal years
beginning after June 15, 2005, which is Fiscal 2007 for the Company. We are currently evaluating
the impact that adoption of SFAS No. 151 will have on our financial position and results of
operations.
(B) STOCK SPLIT
On
January 24, 2006, the Board of Directors declared a 3-for-1 stock split in the form of a
200% stock dividend on the Companys Common Stock and its Class B Common Stock. The stock dividend
will be distributed on February 24, 2006 to stockholders of record on February 10, 2006. All share
and per share information, including dividends, for the three and nine month periods ended December
31, 2005 and 2004, as well as fiscal year ended March 31, 2005, has been retroactively adjusted for
this split.
4
(C) DIVIDENDS PER SHARE
On January 25, 2006, the Company announced that it will increase its annual dividend to $2.10
per share from $1.20 per share on a pre-split basis, or $0.70 per share from $0.40 per share on a
post split basis. The Board of Directors has declared a quarterly cash dividend of $0.175 per
share, on a post-split basis, payable on April 21, 2006 to stockholders of record on March 22,
2006.
(D) STOCK-BASED EMPLOYEE COMPENSATION
Share Based Payments. Effective April 1, 2005, the Company adopted SFAS 123R, Share-Based
Payment utilizing the modified prospective approach. Under the modified prospective approach,
SFAS 123R applies to new awards and to awards that were outstanding on April 1, 2005 and are
subsequently modified or cancelled. Compensation expense for outstanding awards for which the
requisite service had not been rendered as of April 1, 2005 will be recognized over the remaining
service period using the compensation cost previously calculated for pro forma disclosure purposes
under SFAS 123 Accounting for Stock-Based Compensation. Prior periods were not restated to
reflect the impact of adopting the new standard.
Prior to the adoption of SFAS 123R, we accounted for employee stock options using the
intrinsic value method of accounting prescribed by APB Opinion 25, Accounting for Stock Issued to
Employees, as allowed by SFAS 123. Except as discussed below, no expense was generally
recognized in fiscal 2005 related to the Companys stock options because the number of shares was
fixed at the grant date and each options exercise price was set at the stocks fair market value
on the date the option was granted.
Long-Term Compensation
Options. For stock options granted in fiscal 2005 and fiscal 2006, vesting is dependent upon the
Companys performance over a one or three year period relative to certain financial or operational
criteria. Once vested the options become exercisable one third immediately and one third at the
end of each of the next two fiscal years. Any options remaining unvested at the end of the
applicable performance period are forfeited. Prior to the adoption of SFAS 123R, awards issued in
fiscal 2005 were determined to be variable awards and the related expense was recognized over the
associated performance period based on the intrinsic value of the options deemed probable of
vesting, measured at each quarter and year-end. Under SFAS 123R, compensation expense is based on
the grant date fair value with such fair value amortized over the estimated service period.
The Company determines the fair value of such awards using the Black-Scholes option pricing
model. The following weighted-average assumptions were used to value EXPs grants in the first
three quarters of fiscal 2006: 7 year expected life; expected volatility of 23%; risk free rate of
4.1% and annual dividends of $0.40 per share (post-split) during the expected term of the options.
The Company recognized share-based compensation expense associated with option grants of $0.2
million and $1.8 million in the three months and nine months ended December 31, 2005, respectively,
and $0.9 million and $1.2 million in the three months and nine months ended December 31, 2004. At
December 31, 2005, there was $6.5 million of unrecognized compensation cost related to share-based
payments which is expected to be recognized over a weighted-average period of 3.0 years.
5
The following table represents stock option activity for the nine months ended December
31, 2005:
|
|
|
|
|
|
|
|
|
|
|
Number |
|
|
Weighted- |
|
|
|
of |
|
|
Average Exercise |
|
|
|
Shares |
|
|
Price |
|
Outstanding Options at Beginning of Period |
|
|
1,755,357 |
|
|
$ |
14.77 |
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
346,191 |
|
|
$ |
30.92 |
|
|
|
|
|
|
|
|
|
|
Exercised |
|
|
(118,074 |
) |
|
$ |
14.54 |
|
|
|
|
|
|
|
|
|
|
Forfeited |
|
|
(52,032 |
) |
|
$ |
19.60 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding Options at End of Period |
|
|
1,931,442 |
|
|
$ |
15.75 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Exercisable at End of Period |
|
|
980,910 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-Average Fair Value of Options
Granted During the Period |
|
$ |
8.88 |
|
|
|
|
|
The following table summarizes information about stock options outstanding at December
31, 2005:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Outstanding |
|
|
Options Exercisable |
|
|
|
|
|
|
|
Weighted |
|
|
Weighted |
|
|
|
|
|
|
|
|
|
Number of |
|
|
Average |
|
|
Average |
|
|
Number of |
|
|
Weighted |
|
|
|
Shares |
|
|
Remaining |
|
|
Exercise |
|
|
Shares |
|
|
Average |
|
Range of Exercise Prices |
|
Outstanding |
|
|
Contractual Life |
|
|
Price |
|
|
Outstanding |
|
|
Exercise Price |
|
$6.80 - $8.15 |
|
|
345,408 |
|
|
4.9 years |
|
$ |
7.36 |
|
|
|
285,150 |
|
|
$ |
7.23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$9.57 - $10.54 |
|
|
256,470 |
|
|
3.9 years |
|
$ |
10.29 |
|
|
|
224,412 |
|
|
$ |
10.37 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$11.04 - $18.88 |
|
|
747,717 |
|
|
6.1 years |
|
$ |
12.26 |
|
|
|
366,045 |
|
|
$ |
11.86 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$21.52 - $29.59 |
|
|
497,856 |
|
|
8.9 years |
|
$ |
26.11 |
|
|
|
105,303 |
|
|
$ |
22.74 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$34.67 - $39.54 |
|
|
83,991 |
|
|
9.7 years |
|
$ |
36.60 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,931,442 |
|
|
6.5 years |
|
$ |
15.75 |
|
|
|
980,910 |
|
|
$ |
11.34 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock Units. The vesting of restricted stock units (RSUs) granted during
fiscal 2005 and fiscal 2006 are subject to certain operational and financial criteria over a one or
three year performance period. Vested RSUs become payable in shares of common stock; one third
upon vesting, and one third at the end of each of the next two fiscal years. Any RSUs remaining
unvested at the end of the applicable performance period are forfeited. During fiscal 2005, 69,267
RSUs were granted to management of which 51,951 RSUs were vested. During fiscal 2006, an
additional 70,992 RSUs have been initially granted to management and 13,776 to members of the Board
of Directors. Share based expense for RSUs was determined based on the market price of EXPs stock
at the time of award applied to the number of shares anticipated to be issued and amortized over
the three year vesting period. During the three months ended December 31, 2005 and 2004, the
Company expensed approximately $292,000 and $445,000, respectively, for these awards. For the nine
months ended December 31, 2005 and 2004, the Company expensed approximately $684,000 and $605,000,
respectively, for these awards.
Shares available for future stock option or RSU grants under existing plans were 2,725,956 at
December 31, 2005. At December 31, 2005 the aggregate intrinsic value of shares outstanding was
$49.9 million.
6
The following table illustrates the effect on operating results and per share information had
the Company accounted for share based compensation in accordance with SFAS 123R for the three and
nine months ended December 31, 2004.
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, 2004 |
|
|
Ended December 31, 2004 |
|
|
|
(dollars in thousands) |
|
Net Earnings |
|
$ |
25,867 |
|
|
$ |
79,199 |
|
As Reported |
|
|
|
|
|
|
|
|
Add Stock-Based Employee Compensation
Included in the Determination of Net
Income as Reported, Net of Tax |
|
|
272 |
|
|
|
816 |
|
Deduct Fair Value of Stock-Based Employee Compensation, net of tax |
|
|
(833 |
) |
|
|
(2,449 |
) |
|
|
|
|
|
|
|
Pro forma |
|
$ |
25,306 |
|
|
$ |
77,566 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
Earnings Per Share (See Note B) |
|
|
|
|
|
|
|
|
As reported |
|
$ |
0.47 |
|
|
$ |
1.43 |
|
Pro forma |
|
$ |
0.46 |
|
|
$ |
1.40 |
|
Diluted
Earnings Per Share (See Note B) |
|
|
|
|
|
|
|
|
As reported |
|
$ |
0.47 |
|
|
$ |
1.41 |
|
Pro forma |
|
$ |
0.46 |
|
|
$ |
1.39 |
|
(E) PENSION AND EMPLOYEE BENEFIT PLANS
We sponsor several defined benefit and defined contribution pension plans covering the
majority of our employees. Benefits paid under the defined benefit plans covering certain hourly
employees are based on years of service and the employees qualifying compensation over the last
few years of employment.
The following table shows the components of net periodic cost for our plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
(dollars in thousands) |
|
Service Cost
Benefits Earned during
the Period |
|
$ |
125 |
|
|
$ |
79 |
|
|
$ |
375 |
|
|
$ |
237 |
|
Interest Cost of Benefit Obligations |
|
|
190 |
|
|
|
112 |
|
|
|
570 |
|
|
|
336 |
|
Amortization of Unrecognized
Prior-Service Cost |
|
|
34 |
|
|
|
31 |
|
|
|
102 |
|
|
|
93 |
|
Credit for Expected Return on Plan Assets |
|
|
(205 |
) |
|
|
(107 |
) |
|
|
(615 |
) |
|
|
(321 |
) |
Actuarial Loss |
|
|
58 |
|
|
|
62 |
|
|
|
174 |
|
|
|
186 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Period Cost |
|
$ |
202 |
|
|
$ |
177 |
|
|
$ |
606 |
|
|
$ |
531 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7
(F) STOCKHOLDERS EQUITY
A summary of changes in stockholders equity follows:
|
|
|
|
|
|
|
For the Nine Months |
|
|
|
Ended December 31, 2005 |
|
|
|
(dollars in thousands) |
|
Common Stock |
|
|
|
|
Balance at Beginning of Period |
|
$ |
547 |
|
Retirement of Common Stock |
|
|
(43 |
) |
Stock Option Exercises |
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at End of Period |
|
|
504 |
|
|
|
|
|
|
|
|
|
|
Capital in Excess
of Par Value |
|
|
|
|
Balance at Beginning of Period |
|
|
|
|
|
|
|
|
Retirement of Common Stock |
|
|
(5,969 |
) |
Share Based Activity |
|
|
3,539 |
|
Stock Option Exercises |
|
|
2,430 |
|
|
|
|
|
|
|
|
|
|
Balance at End of Period |
|
|
|
|
|
|
|
|
|
|
|
|
|
Retained Earnings |
|
|
|
|
Balance at Beginning of Period |
|
|
486,663 |
|
Dividends Declared to Stockholders |
|
|
(15,834 |
) |
Retirement of Common Stock |
|
|
(153,625 |
) |
Net Earnings |
|
|
117,217 |
|
|
|
|
|
|
|
|
|
|
Balance at End of Period |
|
|
434,421 |
|
|
|
|
|
|
|
|
|
|
Unamortized
Restricted Stock |
|
|
|
|
Balance at Beginning of Period |
|
|
(557 |
) |
Amortization |
|
|
76 |
|
Transfer to Capital In Excess of Par |
|
|
481 |
|
|
|
|
|
|
|
|
|
|
Balance at End of Period |
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated Other
Comprehensive
Losses |
|
|
|
|
Balance at Beginning of Period |
|
|
(1,842 |
) |
|
|
|
|
|
|
|
|
|
Balance at End of Period |
|
|
(1,842 |
) |
|
|
|
|
|
|
|
|
|
Total Stockholders Equity |
|
$ |
433,083 |
|
|
|
|
|
The following is a summary of shares repurchased during the three and nine month periods
ended December 31, 2005 and 2004, respectively:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
For the Three Months |
|
|
Ended December 31, 2005 |
|
Ended December 31, 2004 |
|
|
Shares |
|
Average Price |
|
Shares |
|
Average Price |
|
|
Purchased |
|
Paid Per Share |
|
Purchased |
|
Paid Per Share |
Common Stock |
|
|
2,509,500 |
|
|
$ |
39.92 |
|
|
|
|
|
|
$ |
|
|
Class B Common Stock |
|
|
341,100 |
|
|
$ |
37.91 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Nine Months |
|
For the Nine Months |
|
|
Ended December 31, 2005 |
|
Ended December 31, 2004 |
|
|
Shares |
|
Average Price |
|
Shares |
|
Average Price |
|
|
Purchased |
|
Paid Per Share |
|
Purchased |
|
Paid Per Share |
Common Stock |
|
|
3,245,808 |
|
|
$ |
37.73 |
|
|
|
|
|
|
$ |
|
|
Class B Common Stock |
|
|
1,162,155 |
|
|
$ |
31.97 |
|
|
|
1,517,100 |
|
|
$ |
20.55 |
|
8
(G) CASH FLOW INFORMATION SUPPLEMENTAL
Cash payments made for interest were $4.0 million and $1.6 million for the nine months ended
December 31, 2005 and 2004, respectively. Net payments made for federal and state income taxes
during the nine months ended December 31, 2005 and 2004, were $52.3 million and $23.9 million,
respectively.
(H) COMPREHENSIVE INCOME
Comprehensive income for the three and nine month periods ended December 31, 2005 and 2004 was
identical to net income for the same periods.
As of December 31, 2005, the Company has an accumulated other comprehensive loss of $1.8
million, net of income taxes of $1.0 million, in connection with recognizing an additional minimum
pension liability. The minimum pension liability relates to the accumulated benefit obligation in
excess of the fair value of plan assets of the defined benefit retirement plans.
(I) INVENTORIES
Inventories are stated at the lower of average cost (including applicable material, labor,
depreciation, and plant overhead) or market. Inventories consist of the following:
|
|
|
|
|
|
|
|
|
|
|
As of |
|
|
|
December 31, 2005 |
|
|
March 31, 2005 |
|
|
|
(dollars in thousands) |
|
Raw Materials and Material-in-Progress |
|
$ |
14,323 |
|
|
$ |
16,073 |
|
Finished Cement |
|
|
7,721 |
|
|
|
8,668 |
|
Gypsum Wallboard |
|
|
7,372 |
|
|
|
5,680 |
|
Paperboard |
|
|
9,769 |
|
|
|
3,651 |
|
Aggregates |
|
|
2,426 |
|
|
|
5,401 |
|
Repair Parts and Supplies |
|
|
23,734 |
|
|
|
22,414 |
|
Fuel and Coal |
|
|
1,766 |
|
|
|
1,595 |
|
|
|
|
|
|
|
|
|
|
$ |
67,111 |
|
|
$ |
63,482 |
|
|
|
|
|
|
|
|
(J) COMPUTATION OF EARNINGS PER SHARE
The calculation of basic and diluted common shares outstanding is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
Weighted-Average
Shares of Common Stock Outstanding |
|
|
52,556,763 |
|
|
|
54,942,744 |
|
|
|
53,369,853 |
|
|
|
55,350,618 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Equivalent shares: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumed
Exercise of Outstanding Dilutive Options |
|
|
1,720,437 |
|
|
|
1,642,815 |
|
|
|
1,801,842 |
|
|
|
1,642,815 |
|
Less Shares
Repurchased from Proceeds of Assumed Exercised Options |
|
|
(1,094,406 |
) |
|
|
(1,013,892 |
) |
|
|
(1,150,344 |
) |
|
|
(1,025,049 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Shares |
|
|
55,674 |
|
|
|
15,798 |
|
|
|
47,133 |
|
|
|
13,452 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-Average Common and Common
Equivalent Shares Outstanding |
|
|
53,238,468 |
|
|
|
55,587,465 |
|
|
|
54,068,484 |
|
|
|
55,981,836 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The above share amounts have been adjusted to reflect the stock split discussed in Note (B) to
the unaudited financial statements.
9
(K) CREDIT FACILITIES
Bank Credit Facility -
On December 16, 2004, we amended our existing credit facility to increase the facility amount from
$250.0 million to $350.0 million, modified certain financial and other covenants and extended the
maturity date to 2009 (the Bank Credit Facility). The Bank Credit Facility expires on December
16, 2009, at which time all borrowings outstanding are due. The borrowings under the Bank Credit
Facility are guaranteed by all major operating subsidiaries of the Company. At the option of the
Company, outstanding principal amounts on the Bank Credit Facility bear interest at a variable rate
equal to: (i) LIBOR, plus an agreed margin (ranging from 87.5 to 162.5 basis points), which is
established quarterly based upon the Companys ratio of consolidated EBITDA to its consolidated
indebtedness; or (ii) an alternate base rate which is the higher of (a) the prime rate or (b) the
federal funds rate plus 1/2% per annum, plus an agreed margin (ranging from 25 to 100 basis points).
Interest payments are payable monthly or at the end of the LIBOR advance periods, which can be up
to a period of six months at the option of the Company. Under the Bank Credit Facility, we are
required to adhere to a number of financial and other covenants, including covenants relating to
the Companys interest coverage ratio and consolidated funded indebtedness ratio. At December 31,
2005 the Company had $342.1 million of borrowings available under the Bank Credit Facility.
Senior Notes -
On November 15, 2005, we entered into a Note Purchase Agreement (the Note Purchase Agreement)
related to our sale of $200 million of senior, unsecured notes, designated as Series 2005A Senior
Notes (the Senior Notes) in a private placement transaction. The Senior Notes are guaranteed by
substantially all of the Companys subsidiaries. The Senior Notes were sold at par on November 15,
2005 and were issued in three tranches, as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal |
|
Maturity Date |
|
Interest rate |
Tranche A |
|
$ |
40,000 |
|
|
November 15, 2012 |
|
|
5.25 |
% |
Tranche B |
|
$ |
80,000 |
|
|
November 15, 2015 |
|
|
5.38 |
% |
Tranche C |
|
$ |
80,000 |
|
|
November 15, 2017 |
|
|
5.48 |
% |
Interest for each tranche of Notes is payable semi-annually on the 15th day of May and
the 15th day of November of each year until all principal is paid for the respective
tranche.
Our obligations under the Note Purchase Agreement and the Senior Notes are equal in right of
payment with all other senior, unsecured debt of the Company, including our debt under the Bank
Credit Facility. The Note Purchase Agreement contains customary restrictive covenants, including
covenants that place limits on our ability to encumber our assets, to incur additional debt, to
sell assets, or to merge or consolidate with third parties, as well as certain cross covenants with
the Bank Credit Facility.
Pursuant to a Subsidiary Guaranty Agreement, substantially all of our subsidiaries have
guaranteed the punctual payment of all principal, interest, and Make-Whole Amounts (as defined in
the Note Agreement) on the Senior Notes and the other payment and performance obligations of the
Company contained in the Senior Notes and in the Note Purchase Agreement. We are permitted, at our
option, to prepay from time to time at least 10% of the original aggregate principal amount of the
Senior Notes at 100% of the principal amount to be prepaid, together with interest accrued on such
amount to be prepaid to the date of payment, plus a Make-Whole Amount. The Make-Whole Amount is
computed by discounting the remaining scheduled payments of interest and principal of the Senior
Notes being prepaid at a discount rate equal to the sum of 50 basis points and the yield to
maturity of U.S. treasury securities having a maturity equal to the remaining average life of the
Senior Notes being prepaid.
10
Note Payable
On December 9, 2005 we repaid all outstanding amounts and terminated our $50.0 million trade
receivable securitization facility.
(L) SEGMENT INFORMATION
Operating segments are defined as components of an enterprise that engage in business
activities that earn revenues, incur expenses and prepare separate financial information that is
evaluated regularly by our chief operating decision maker in order to allocate resources and assess
performance.
We operate in four business segments: Gypsum Wallboard, Cement, Recycled Paperboard, and
Concrete and Aggregates, with Gypsum Wallboard and Cement being our principal lines of business.
These operations are conducted in the United States and include the mining of gypsum and the
manufacture and sale of gypsum wallboard, the mining of limestone and the manufacture, production,
distribution and sale of portland cement (a basic construction material which is the essential
binding ingredient in concrete), the manufacture and sale of recycled paperboard to the gypsum
wallboard industry and other paperboard converters, the sale of readymix concrete and the mining
and sale of aggregates (crushed stone, sand and gravel). These products are used primarily in
commercial and residential construction, public construction projects and projects to build, expand
and repair roads and highways.
Demand for our products is derived primarily from residential construction, commercial and
industrial construction and public (infrastructure) construction, which are highly cyclical and are
influenced by prevailing economic conditions, including interest rates and availability of public
funds. Due to the low value-to-weight ratio of cement, concrete and aggregates, these industries
are largely regional and local with demand tied to local economic factors that may fluctuate more
widely than those of the nation as a whole.
As further discussed below, we operate four gypsum wallboard plants, five gypsum wallboard
reload centers, a gypsum wallboard distribution center, four cement plants, ten cement distribution
terminals, a recycled paperboard mill, eight readymix concrete batch plant locations and two
aggregates processing plant locations. Gypsum wallboard and recycled paperboard are distributed
throughout the continental United States, except for the Northeast, while the principal markets for
our cement products are Texas, northern Illinois (including
Chicago), the Rocky Mountains, northern Nevada, and northern California. Concrete and aggregates
are sold to local readymix producers and paving contractors in the Austin, Texas area and northern
California.
During fiscal 2005, up to January 10, 2005, we conducted two out of our four cement plant
operations through joint ventures, Texas Lehigh Cement Company LP, which is located in Buda, Texas
and Illinois Cement Company, which is located in LaSalle, Illinois (collectively, the Joint
Ventures). Effective January 11, 2005 we completed the purchase of the remaining 50% interest in
Illinois Cement Company and accordingly the results of Illinois Cement Company have been
consolidated into our results for the first nine months of fiscal 2006. For segment reporting
purposes only, we proportionately consolidate our 50% share of the cement Joint Ventures revenues
and operating earnings, which is consistent with the way management organizes the segments within
the Company for making operating decisions and assessing performance.
11
We account for intersegment sales at market prices. The following table sets forth certain
financial information relating to our operations by segment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
Revenues - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
122,450 |
|
|
$ |
87,199 |
|
|
$ |
344,394 |
|
|
$ |
261,295 |
|
Cement |
|
|
66,549 |
|
|
|
48,829 |
|
|
|
220,446 |
|
|
|
161,743 |
|
Paperboard |
|
|
31,478 |
|
|
|
32,018 |
|
|
|
98,875 |
|
|
|
96,571 |
|
Concrete and Aggregates |
|
|
21,904 |
|
|
|
16,037 |
|
|
|
69,331 |
|
|
|
54,550 |
|
Other, net |
|
|
|
|
|
|
|
|
|
|
2,279 |
|
|
|
193 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sub-total |
|
|
242,381 |
|
|
|
184,083 |
|
|
|
735,325 |
|
|
|
574,352 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less: Intersegment Revenues |
|
|
(15,973 |
) |
|
|
(14,134 |
) |
|
|
(49,508 |
) |
|
|
(44,220 |
) |
Less: Joint Ventures |
|
|
(14,893 |
) |
|
|
(20,147 |
) |
|
|
(47,719 |
) |
|
|
(66,927 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Revenues |
|
$ |
211,515 |
|
|
$ |
149,802 |
|
|
$ |
638,098 |
|
|
$ |
463,205 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
Intersegment Revenues |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cement |
|
$ |
1,345 |
|
|
$ |
791 |
|
|
$ |
4,622 |
|
|
$ |
2,569 |
|
Paperboard |
|
|
14,322 |
|
|
|
13,133 |
|
|
|
43,722 |
|
|
|
40,818 |
|
Concrete and Aggregates |
|
|
306 |
|
|
|
210 |
|
|
|
1,164 |
|
|
|
833 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
15,973 |
|
|
$ |
14,134 |
|
|
$ |
49,508 |
|
|
$ |
44,220 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cement Sales Volumes (M tons) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly Owned |
|
|
556 |
|
|
|
340 |
|
|
|
1,908 |
|
|
|
1,151 |
|
Joint Ventures |
|
|
190 |
|
|
|
287 |
|
|
|
623 |
|
|
|
976 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
746 |
|
|
|
627 |
|
|
|
2,531 |
|
|
|
2,127 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
Operating Earnings |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
38,856 |
|
|
$ |
20,121 |
|
|
$ |
103,782 |
|
|
$ |
59,983 |
|
Cement |
|
|
20,057 |
|
|
|
14,496 |
|
|
|
58,727 |
|
|
|
44,306 |
|
Paperboard |
|
|
4,195 |
|
|
|
5,903 |
|
|
|
17,447 |
|
|
|
19,845 |
|
Concrete and Aggregates |
|
|
1,321 |
|
|
|
937 |
|
|
|
7,999 |
|
|
|
5,550 |
|
Other, net |
|
|
(348 |
) |
|
|
(137 |
) |
|
|
1,932 |
|
|
|
(776 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Sub-total |
|
|
64,081 |
|
|
|
41,320 |
|
|
|
189,887 |
|
|
|
128,908 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate
General and Administrative |
|
|
(3,835 |
) |
|
|
(2,810 |
) |
|
|
(10,900 |
) |
|
|
(7,408 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings Before Interest and Income Taxes |
|
|
60,246 |
|
|
|
38,510 |
|
|
|
178,987 |
|
|
|
121,500 |
|
Interest Expense, net |
|
|
(1,380 |
) |
|
|
(575 |
) |
|
|
(4,210 |
) |
|
|
(2,154 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings Before Income Taxes |
|
$ |
58,866 |
|
|
$ |
37,935 |
|
|
$ |
174,777 |
|
|
$ |
119,346 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cement Operating Earnings |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wholly Owned |
|
$ |
14,005 |
|
|
$ |
6,788 |
|
|
$ |
40,266 |
|
|
$ |
22,885 |
|
Joint Ventures |
|
|
6,052 |
|
|
|
7,708 |
|
|
|
18,461 |
|
|
|
21,421 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
20,057 |
|
|
$ |
14,496 |
|
|
$ |
58,727 |
|
|
$ |
44,306 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital Expenditures
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
355 |
|
|
$ |
930 |
|
|
$ |
2,259 |
|
|
$ |
5,336 |
|
Cement |
|
|
9,241 |
|
|
|
2,314 |
|
|
|
32,570 |
|
|
|
5,546 |
|
Paperboard |
|
|
859 |
|
|
|
1,430 |
|
|
|
3,424 |
|
|
|
2,534 |
|
Concrete and Aggregates |
|
|
1,869 |
|
|
|
1,639 |
|
|
|
8,327 |
|
|
|
2,938 |
|
Other |
|
|
16 |
|
|
|
29 |
|
|
|
5,376 |
|
|
|
101 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
12,340 |
|
|
$ |
6,342 |
|
|
$ |
51,956 |
|
|
$ |
16,455 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation, Depletion
and Amortization
(1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
4,217 |
|
|
$ |
4,356 |
|
|
$ |
12,564 |
|
|
$ |
12,607 |
|
Cement |
|
|
2,547 |
|
|
|
1,297 |
|
|
|
7,426 |
|
|
|
3,836 |
|
Paperboard |
|
|
2,021 |
|
|
|
2,033 |
|
|
|
6,022 |
|
|
|
5,933 |
|
Concrete and Aggregates |
|
|
738 |
|
|
|
701 |
|
|
|
2,178 |
|
|
|
2,105 |
|
Other, net |
|
|
306 |
|
|
|
170 |
|
|
|
625 |
|
|
|
531 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
9,829 |
|
|
$ |
8,557 |
|
|
$ |
28,815 |
|
|
$ |
25,012 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
|
|
|
December 31, |
|
|
March 31, |
|
|
|
2005 |
|
|
2005 |
|
Identifiable Assets
(1) |
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
333,532 |
|
|
$ |
331,367 |
|
Cement |
|
|
233,189 |
|
|
|
212,022 |
|
Paperboard |
|
|
183,627 |
|
|
|
181,854 |
|
Concrete and Aggregates |
|
|
44,509 |
|
|
|
37,135 |
|
Corporate and Other |
|
|
68,827 |
|
|
|
17,623 |
|
|
|
|
|
|
|
|
|
|
$ |
863,684 |
|
|
$ |
780,001 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Basis in conforms with equity method accounting. |
13
Segment operating earnings, including the proportionately consolidated 50% interest in
the revenues and expenses of the Joint Ventures, represent revenues less direct operating expenses,
segment depreciation, and segment selling, general and administrative expenses. Corporate assets
consist primarily of cash and cash equivalents, general office assets and miscellaneous other
assets. The segment breakdown of goodwill is as follows:
|
|
|
|
|
|
|
|
|
|
|
As of December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
|
(dollars in thousands) |
|
Cement |
|
$ |
5,359 |
|
|
$ |
|
|
Gypsum Wallboard |
|
|
37,842 |
|
|
|
37,844 |
|
Paperboard |
|
|
2,446 |
|
|
|
2,446 |
|
|
|
|
|
|
|
|
|
|
$ |
45,647 |
|
|
$ |
40,290 |
|
|
|
|
|
|
|
|
Combined summarized financial information for the one jointly owned operation for fiscal
2006 and the two jointly owned operations for fiscal 2005 that are not consolidated is set out
below (this combined summarized financial information includes the total amounts for the Joint
Ventures and not the Companys 50% interest in those amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
For the Nine Months |
|
|
Ended December 31, |
|
Ended December 31, |
|
|
2005 |
|
2004 |
|
2005 |
|
2004 |
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
Revenues |
|
$ |
28,217 |
|
|
$ |
41,706 |
|
|
$ |
90,216 |
|
|
$ |
138,129 |
|
Gross Margin |
|
$ |
13,189 |
|
|
$ |
16,962 |
|
|
$ |
39,768 |
|
|
$ |
47,562 |
|
Earnings Before Income Taxes |
|
$ |
12,064 |
|
|
$ |
15,416 |
|
|
$ |
36,817 |
|
|
$ |
42,841 |
|
|
|
|
|
|
|
|
|
|
|
|
As of |
|
|
December 31, |
|
March 31, |
|
|
2005 |
|
2005 |
Current Assets |
|
$ |
30,876 |
|
|
$ |
33,979 |
|
Non-Current Assets |
|
$ |
29,640 |
|
|
$ |
32,022 |
|
Current Liabilities |
|
$ |
10,269 |
|
|
$ |
10,293 |
|
(M) NET INTEREST EXPENSE
The following components are included in interest expense, net:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
Interest (Income) |
|
$ |
(501 |
) |
|
$ |
(9 |
) |
|
$ |
(560 |
) |
|
$ |
(13 |
) |
Interest Expense |
|
|
2,230 |
|
|
|
465 |
|
|
|
4,897 |
|
|
|
1,800 |
|
Interest Capitalized |
|
|
(569 |
) |
|
|
|
|
|
|
(569 |
) |
|
|
|
|
Other Expenses |
|
|
220 |
|
|
|
119 |
|
|
|
442 |
|
|
|
367 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Expense, net |
|
$ |
1,380 |
|
|
$ |
575 |
|
|
$ |
4,210 |
|
|
$ |
2,154 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14
Interest income includes interest on investments of excess cash and interest on notes
receivable. Components of interest expense include interest associated with bank borrowings,
Senior Notes, the accounts receivable securitization facility and commitment fees based on the
unused portion of the Bank Credit Facility. Other expenses include amortization of debt issue
costs and bank credit facility costs. Interest capitalized relates to the expansion project at
Illinois Cement Company.
(N) COMMITMENTS AND CONTINGENCIES
The Company has certain deductible limits under its workers compensation and liability
insurance policies for which reserves are established based on the undiscounted estimated costs of
known and anticipated claims. We have entered into standby letter of credit agreements relating to
workers compensation and auto and general liability self-insurance. At December 31, 2005, we had
contingent liabilities under these outstanding letters of credit of approximately $7.9 million.
The following table compares insurance accruals and payments for our operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of and for the Three Months |
|
|
As of and for the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
Accrual Balances at Beginning Period |
|
$ |
5,774 |
|
|
$ |
4,844 |
|
|
$ |
4,905 |
|
|
$ |
3,883 |
|
Insurance Expense Accrued |
|
|
1,186 |
|
|
|
941 |
|
|
|
3,478 |
|
|
|
2,748 |
|
Payments |
|
|
(674 |
) |
|
|
(975 |
) |
|
|
(2,097 |
) |
|
|
(2,515 |
) |
Other |
|
|
|
|
|
|
(486 |
) |
|
|
|
|
|
|
208 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual Balance at End of Period |
|
$ |
6,286 |
|
|
$ |
4,324 |
|
|
$ |
6,286 |
|
|
$ |
4,324 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company is currently contingently liable for performance under $6.9 million in
performance bonds required by certain states and municipalities, and their related agencies. The
bonds are principally for certain reclamation obligations and mining permits. We have indemnified
the underwriting insurance company against any exposure under the performance bonds. In the
Companys past experience, no material claims have been made against these financial instruments.
In the ordinary course of business, we execute contracts involving indemnifications standard
in the industry and indemnifications specific to a transaction such as sale of a business. These
indemnifications might include claims relating to any of the following: environmental and tax
matters; intellectual property rights; governmental regulations and employment-related matters;
customer, supplier, and other commercial contractual relationships; and financial matters. While
the maximum amount to which the Company may be exposed under such agreements cannot be estimated,
it is the opinion of management that these indemnifications are not expected to have a material
adverse effect on our consolidated financial position or results of operations. The Company
currently has no outstanding guarantees.
(O) INCOME TAXES
Income taxes for the interim period presented have been included in the accompanying financial
statements on the basis of an estimated annual effective tax rate. In addition to the amount of
tax resulting from applying the estimated annual effective tax rate to pre-tax income, the Company,
when appropriate, includes certain items treated as discrete events to arrive at an estimated
overall tax amount. The effective tax rate for the three months ended December 31, 2005 was
33.8%, higher than the 32.9% effective rate for the nine months ended December 31, 2005 which
includes a $1.8 million discrete tax item relating to favorable adjustments to tax reserves for
depletion taken in the first quarter of fiscal 2006. As of December 31, 2005, the estimated
overall tax rate for fiscal 2006 is 33.2% including the impact of the $1.8 million discussed above.
15
Item 2. Managements Discussion and Analysis of Results of Operations and Financial Condition
OVERVIEW
Eagle Materials Inc. is a diversified producer of basic building materials and construction
products used in residential, industrial, commercial and infrastructure construction. Information
presented for the three and nine months ended December 31, 2005 and 2004, reflects the Companys
four businesses segments, consisting of Gypsum Wallboard, Cement, , Recycled Paperboard and
Concrete and Aggregates. Certain information for each of Concrete and Aggregates is broken out
separately in the segment discussions.
A majority of our revenues are from customers who are in industries and businesses that are
cyclical in nature and subject to changes in general economic conditions. In addition, since our
operations occur in a variety of geographic markets, our businesses are subject to the economic
conditions in each such geographic market. Our cement companies are located in geographic areas
west of the Mississippi river and the Chicago, Illinois metropolitan area. Due to the low
value-to-weight ratio of cement, cement is usually shipped within a 250 mile radius of the plants.
Concrete and aggregates are even more regional as those operations serve the areas immediately
surrounding Austin, Texas and north of Sacramento, California. Therefore, demand for cement,
concrete and aggregates are tied more closely to the economies of the local and regional markets,
which may fluctuate more widely than the nation as a whole. Our Wallboard and Paperboard
operations are more national in scope and shipments are made throughout the continental U.S.,
except for the Northeast; however, our primary markets are in the Southwestern U.S. Demand for
wallboard varies between regions with the East and West Coasts representing the largest demand
centers.
Nationally, trends in the construction industry continue to be positive as total year-to-date
construction spending put in place was 8.1% above the December 2004 estimate. Construction
spending for calendar 2005 increased 8.9% to $1.120 trillion compared to $1.028 trillion during
calendar 2004. Wallboard demand has been favorably impacted by strong residential construction due
to low interest rates; however, a continued rise in interest rates could negatively impact this
demand. Additionally, housing starts declined by 5.6% in December 2005 as compared to 2004, and
continued declines may adversely impact demand as well. Commercial and industrial activity
continues to show signs of improvement year-to-date, and improvements, if sustained, may help to
offset reduced demand in the residential construction sector. Cement demand continues to be
positively impacted by a continuation of the high level of federal transportation projects, the
strong housing market and an improving non-residential construction market. There can be no
assurances that the generally strong demand for our products will continue in future periods. See
Forward Looking Statements.
General economic downturns or localized downturns in the regions where we have operations,
including any downturns in the construction industry, and increases in capacity in the gypsum
wallboard, paperboard and cement industries, could have a material adverse effect on our business,
financial condition and results of operations. Additionally, wallboard operations and, to a lesser
extent, our other operations are impacted by rising fuel costs, availability and cost of long haul
trucking and logistical problems currently being seen in the U.S. rail market. Individually or
collectively, these issues could potentially adversely impact our operating earnings and our
ability to efficiently distribute our products to the customers we serve.
Texas Lehigh Cement Company LP, which is located in Buda, Texas, is operated through a Joint
Venture in which the Company owns a 50% interest and accounts for such interest under the equity
method of accounting for financial reporting purposes. Our 50% share of the Joint Ventures
revenues and operating earnings are proportionately consolidated in our segment footnote, which is
the way management organizes the segments within the Company for making operating decisions and
assessing performance. On January 11, 2005, we completed the acquisition of the other 50% interest
in Illinois Cement Company, at which time we began fully consolidating the financial statements of
Illinois Cement Company with those of the Company. During the three and nine months ended December
31, 2004 we continued to utilize the equity method of accounting for Illinois Cement Company in our
financial results, and proportionate consolidation in our segment results.
16
RESULTS OF OPERATIONS
Consolidated Results
The following tables lists by line of business the revenues and operating earnings discussed
in our operating segments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
(dollars in thousands) |
|
REVENUES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
122,450 |
|
|
$ |
87,199 |
|
|
$ |
344,394 |
|
|
$ |
261,295 |
|
Cement(2) |
|
|
66,549 |
|
|
|
48,829 |
|
|
|
220,446 |
|
|
|
161,743 |
|
Paperboard |
|
|
31,478 |
|
|
|
32,018 |
|
|
|
98,875 |
|
|
|
96,571 |
|
Concrete & Aggregates |
|
|
21,904 |
|
|
|
16,037 |
|
|
|
69,331 |
|
|
|
54,550 |
|
Other, net |
|
|
|
|
|
|
|
|
|
|
2,279 |
|
|
|
193 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sub-total |
|
|
242,381 |
|
|
|
184,083 |
|
|
|
735,325 |
|
|
|
574,352 |
|
Less: Intersegment Revenues |
|
|
(15,973 |
) |
|
|
(14,134 |
) |
|
|
(49,508 |
) |
|
|
(44,220 |
) |
Less: Joint Venture Revenues |
|
|
(14,893 |
) |
|
|
(20,147 |
) |
|
|
(47,719 |
) |
|
|
(66,927 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
211,515 |
|
|
$ |
149,802 |
|
|
$ |
638,098 |
|
|
$ |
463,205 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months |
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
2005 |
|
|
2004 |
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
OPERATING EARNINGS(1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gypsum Wallboard |
|
$ |
38,856 |
|
|
$ |
20,121 |
|
|
$ |
103,782 |
|
|
$ |
59,983 |
|
Cement(2) |
|
|
20,057 |
|
|
|
14,496 |
|
|
|
58,727 |
|
|
|
44,306 |
|
Paperboard |
|
|
4,195 |
|
|
|
5,903 |
|
|
|
17,447 |
|
|
|
19,845 |
|
Concrete & Aggregates |
|
|
1,321 |
|
|
|
937 |
|
|
|
7,999 |
|
|
|
5,550 |
|
Other, net |
|
|
(348 |
) |
|
|
(137 |
) |
|
|
1,932 |
|
|
|
(776 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
64,081 |
|
|
$ |
41,320 |
|
|
$ |
189,887 |
|
|
$ |
128,908 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Prior to Corporate General and Administrative expenses. |
|
|
|
(2) |
|
Total of wholly-owned subsidiaries and proportionately consolidated 50%
interest in Joint Ventures results. For the three and nine months ended December 31, 2004,
Illinois Cement Company and Texas Lehigh Cement Company LP were proportionately
consolidated, while only Texas Lehigh was proportionately consolidated during the three and
nine months ended December 31, 2005 |
17
Operating Earnings.
Consolidated operating earnings increased 55% and 47% over the prior year quarter and
year-to-date periods, respectively. Continued strong demand in our core businesses helped to set
record sales volumes in both the Gypsum Wallboard and Cement segments both for the quarter and
year-to-date periods. During the third quarter, pricing has continued to show stability and
improvement in both the Gypsum Wallboard and Cement segments; however, these price improvements
have been partially offset by increased costs of energy and transportation. Revenues and operating
earnings in the Paperboard segment declined during the three and nine month periods ended December
31, 2005 as compared to 2004, due primarily to increased energy costs and reduced sales prices of
containerboard paper. Concrete prices have increased approximately 18% and 13%, respectively, for
the quarter and year-to-date as compared to the corresponding year ago periods, offset somewhat by
the increased costs of cement and fuel delivery. Aggregate demand in the northern California and
Texas markets remains strong with record quarter and year-to-date sales volumes, offset partially
by increased mining and extraction costs.
Other Income.
Other income consists of a variety of items that are non-segment operating in nature and
includes non-inventoried aggregates income, gypsum wallboard distribution center income, asset
sales and other miscellaneous income and cost items.
Corporate Overhead.
Corporate general and administrative expenses for the third quarter of Fiscal 2006 were $3.8
million compared to $2.8 million for the comparable prior year period and $10.9 million compared to
$7.4 million for the current and prior year-to-date periods. The increase is primarily the result
of the adoption of Statement of Financial Accounting Standard 123R-Share Based Payment discussed
further in Note (D) to the unaudited consolidated financial statements, and increased incentive
compensation accruals due to increased earnings. As a percentage of operating earnings, corporate
general and administrative expenses decreased from 6.8% for the three months ended December 31,
2004 to 6.0% for the three months ended December 31, 2005., and remained consistent at 5.7% for the
nine months ended December 31, 2005 and 2004.
Net Interest Expense.
Net interest expense of $1.4 million and $4.2 million for the three and nine month periods
ended December 31, 2005 has increased $0.8 and
$2.0 million, respectively, from last years
comparable periods due to increased interest rates and issuance of the Senior Notes as discussed
further in Note (K) to the unaudited consolidated financial statements.
Income Taxes.
The effective tax rate was 32.9% and 33.6% for nine month periods ended December 31, 2005 and
2004, respectively. The change in the effective tax rate is a result of the revision in certain
estimates utilized by the Company for permanent items versus actual amounts included within the
corporate tax filings.
Net Income.
Pre-tax earnings of $58.9 million were 55% above last years third quarter pre-tax earnings of
$37.9 million. Net earnings of $39.0 million increased 51% from net earnings of $25.9 million for
last fiscal years third quarter. Diluted earnings per share of $0.73 were 55% higher than the
$0.47 for last years same quarter. Year-to-date net earnings of $117.2 million increased 48% from
net earnings of $79.2 million for the comparable year ago period.
18
Gypsum Wallboard
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
|
|
|
|
For the Nine Months Ended |
|
|
|
|
|
|
December 31, |
|
|
Percentage |
|
|
December 31, |
|
|
Percentage |
|
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
|
|
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
|
|
|
|
Gross Revenues, as Reported |
|
$ |
122,450 |
|
|
$ |
87,199 |
|
|
|
40 |
% |
|
$ |
344,394 |
|
|
$ |
261,295 |
|
|
|
32 |
% |
Freight and Delivery Costs |
|
|
(21,872 |
) |
|
|
(18,778 |
) |
|
|
16 |
% |
|
|
(66,520 |
) |
|
|
(55,063 |
) |
|
|
21 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Revenues |
|
$ |
100,578 |
|
|
$ |
68,421 |
|
|
|
47 |
% |
|
$ |
277,874 |
|
|
$ |
206,232 |
|
|
|
35 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales Volume (MMSF) |
|
|
699 |
|
|
|
628 |
|
|
|
11 |
% |
|
|
2,108 |
|
|
|
1,933 |
|
|
|
9 |
% |
Average Net Sales Price |
|
$ |
143.98 |
|
|
$ |
108.95 |
|
|
|
32 |
% |
|
$ |
131.85 |
|
|
$ |
106.68 |
|
|
|
24 |
% |
Freight (MMSF) |
|
$ |
31.29 |
|
|
$ |
29.90 |
|
|
|
5 |
% |
|
$ |
31.56 |
|
|
$ |
28.49 |
|
|
|
11 |
% |
Operating Margin |
|
$ |
55.59 |
|
|
$ |
32.04 |
|
|
|
74 |
% |
|
$ |
49.23 |
|
|
$ |
31.03 |
|
|
|
59 |
% |
Operating Earnings |
|
$ |
38,856 |
|
|
$ |
20,121 |
|
|
|
93 |
% |
|
$ |
103,782 |
|
|
$ |
59,983 |
|
|
|
73 |
% |
|
|
|
Revenues:
|
|
Price increases during the three and nine month periods and record wallboard shipments have resulted in
increased revenues. Record demand and near full capacity utilization of the U.S. wallboard industry has
resulted in increased wallboard prices, including increases in the three month period ended December 31, 2005
due to favorable construction spending and very favorable weather conditions. The Company has experienced
record shipments during the three and nine month periods ended December 31, 2005. |
|
|
|
Operating Margins:
|
|
Increases in operating margins for the three and nine month periods ended December 31, 2005 as compared to 2004
are due primarily to increased pricing during the respective periods, offset slightly by increasing costs of
transportation, natural gas and paper. |
|
|
|
Outlook:
|
|
Strong demand from new housing has resulted in record wallboard consumption for the calendar year 2005.
Wallboard pricing remains strong and a 10% price increase on day-to-day business was implemented on December
12, 2005 in all of our markets. For the near term, we anticipate wallboard demand to remain strong and supply
to be tight (with over 95% industry capacity utilization) as a result of generally high demand in residential
construction and increasing repair/remodel and commercial construction activity. Rising energy prices
(particularly natural gas), which is used in the manufacturing process; and diesel fuel, which is used in the
transportation of products to our market; may adversely affect our operating earnings if future price increases
are not sufficient to cover the increased costs. |
19
Cement Operations (1 )
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
|
|
|
|
For the Nine Months Ended |
|
|
|
|
|
|
December 31, |
|
|
Percentage |
|
|
December 31, |
|
|
Percentage |
|
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
|
|
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
|
|
|
|
Gross Revenues, including
intersegment |
|
$ |
66,549 |
|
|
$ |
48,829 |
|
|
|
36 |
% |
|
$ |
220,446 |
|
|
$ |
161,743 |
|
|
|
36 |
% |
Freight and Delivery Costs
billed to customers |
|
|
(4,432 |
) |
|
|
(3,842 |
) |
|
|
15 |
% |
|
|
(14,565 |
) |
|
|
(12,986 |
) |
|
|
12 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Revenues |
|
$ |
62,117 |
|
|
$ |
44,987 |
|
|
|
38 |
% |
|
$ |
205,881 |
|
|
$ |
148,757 |
|
|
|
38 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales Volume (M Tons) |
|
|
746 |
|
|
|
627 |
|
|
|
19 |
% |
|
|
2,531 |
|
|
|
2,127 |
|
|
|
19 |
% |
Average Net Sales Price |
|
$ |
83.24 |
|
|
$ |
71.75 |
|
|
|
16 |
% |
|
$ |
81.34 |
|
|
$ |
69.94 |
|
|
|
16 |
% |
Operating Margin |
|
$ |
26.88 |
|
|
$ |
23.12 |
|
|
|
16 |
% |
|
$ |
23.20 |
|
|
$ |
20.83 |
|
|
|
11 |
% |
Operating Earnings |
|
$ |
20,057 |
|
|
$ |
14,496 |
|
|
|
38 |
% |
|
$ |
58,727 |
|
|
$ |
44,306 |
|
|
|
33 |
% |
|
|
|
(1) Total of wholly-owned subsidiaries and proportionately consolidated 50% interest
of Joint Ventures results. |
|
|
|
Revenues:
|
|
Price increases in the first and third quarters of fiscal 2006 were implemented, resulting in increased average sales
prices for the three and nine month periods ended December 31, 2005 as compared to similar periods in 2004.
Additionally, consumption was at an all-time high due to several favorable market factors, such as increased construction
spending and very favorable weather conditions in our markets. |
|
|
|
Operating Margins:
|
|
Operating margins increased for the three and nine month-periods ended December 31, 2005 as compared to 2004, primarily
due to increased sales prices. The increases in sales prices were slightly offset by increased low margin purchased
cement volumes, which increased to 591,000 tons from 322,000 tons, an increase of 84%, in the nine month period ended
December 31, 2005 as compared to 2004. For the three and nine month periods ended December 31, 2005, purchased cement
costs increased 19% and 21%, respectively, as compared to similar periods ended December 31, 2004. Additionally, fuel
and transportation costs increased by 22% and 8%, respectively, over the three month period ended December 31, 2005 as
compared to 2004. |
|
|
|
Outlook:
|
|
U.S. cement consumption remains strong as a result of strong federal and state infrastructure projects, strong housing
activity and a recovering commercial construction market. The passage of the $286.4 billion, six year federal highway
transportation bill SAFETEALU in July of 2005 represents a 30% increase over the previous TEA 21 bill and is
anticipated to further strengthen the long-term demand for cement in the U.S. The U.S. Government and the Government of
Mexico have entered into an agreement in principle providing for the elimination of the antidumping duties imposed by the
U.S. on cement imported from Mexico. Once finalized, the agreement
will provide for a three year transition period during which the
volume of Mexican cement imported into the southern tier of the U.S. will be limited to 3 million metric tons per year
and the antidumping duty imposed on Mexican cement will be set at $3 per ton. This is not expected to impact cement
prices in the short term as the PCA estimates that the current industry wide domestic production capacity is 25% short of
domestic consumption. In the near term, we expect U.S. cement pricing to remain stable or increase due to
strong domestic consumption, increasing world demand and historically high international freight costs for imported
cement. The Company has sold 100% of its production for the last 19 years and anticipates selling all of its fiscal 2006
production. |
20
Recycled Paperboard
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
|
|
|
|
For the Nine Months Ended |
|
|
|
|
|
|
December 31, |
|
|
Percentage |
|
|
December 31, |
|
|
Percentage |
|
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
|
|
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
|
|
|
|
Gross Revenues, including
intersegment |
|
$ |
31,478 |
|
|
$ |
32,018 |
|
|
|
(2 |
)% |
|
$ |
98,875 |
|
|
$ |
96,571 |
|
|
|
2 |
% |
Freight and Delivery Costs
billed to customers |
|
|
(620 |
) |
|
|
(928 |
) |
|
|
(33 |
)% |
|
|
(2,027 |
) |
|
|
(2,127 |
) |
|
|
(4 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Revenues |
|
$ |
30,858 |
|
|
$ |
31,090 |
|
|
|
(1 |
)% |
|
$ |
96,848 |
|
|
$ |
94,444 |
|
|
|
3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales Volume (M Tons) |
|
|
67 |
|
|
|
69 |
|
|
|
(3 |
)% |
|
|
209 |
|
|
|
209 |
|
|
|
|
% |
Average Net Sales Price |
|
$ |
462.95 |
|
|
$ |
453.50 |
|
|
|
2 |
% |
|
$ |
463.93 |
|
|
$ |
452.64 |
|
|
|
3 |
% |
Unit Production Costs |
|
$ |
400.37 |
|
|
$ |
367.39 |
|
|
|
8 |
% |
|
$ |
380.45 |
|
|
$ |
357.49 |
|
|
|
6 |
% |
Operating Margin |
|
$ |
62.61 |
|
|
$ |
86.11 |
|
|
|
(27 |
)% |
|
$ |
83.48 |
|
|
$ |
95.15 |
|
|
|
(12 |
)% |
Operating Earnings |
|
$ |
4,195 |
|
|
$ |
5,903 |
|
|
|
(29 |
)% |
|
$ |
17,447 |
|
|
$ |
19,845 |
|
|
|
(12 |
)% |
|
|
|
Revenues:
|
|
Paperboard sales to our wallboard division were 28 thousand tons at $14.3 million, and 86 thousand tons at $43.7 million,
compared to 27 thousand tons at $13.1 million and 83 thousand tons at $40.8 million for the three and nine month periods
ended December 31, 2005 and 2004, respectively. Paperboard achieved price increases for the three and nine month periods
ended December 31, 2005 as compared to similar periods in the prior year due primarily to previously established price
escalators. |
|
|
|
Operating Margins:
|
|
For the quarter and year-to-date periods, cost-of-sales per ton was adversely impacted by higher fuel costs, higher
chemical costs and freight costs, as well as increased sales of lower margin containerboard grade paper. |
|
|
|
Outlook:
|
|
As a result of strong market demand, capital improvements and improved operating efficiency, our paperboard mill is
currently producing at 150% of its original design capacity. While we anticipate continued strong demand for our
products over the next six to twelve months, announced worldwide recycled container board capacity expansion could place
upward price pressure on recovered fiber as supply tightens. Continued increases in fuel costs over the next six months
will adversely affect operating earnings. |
21
Concrete
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
|
|
|
For the Nine Months Ended |
|
|
|
|
December 31, |
|
Percentage |
|
December 31, |
|
Percentage |
|
|
2005 |
|
2004 |
|
Change |
|
2005 |
|
2004 |
|
Change |
|
|
|
|
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
|
|
|
Gross Revenues, including
intersegment |
|
$ |
13,475 |
|
|
$ |
9,397 |
|
|
|
43 |
% |
|
$ |
41,872 |
|
|
$ |
31,964 |
|
|
|
31 |
% |
Sales Volume
M Cubic Yards |
|
|
210 |
|
|
|
173 |
|
|
|
21 |
% |
|
|
683 |
|
|
|
590 |
|
|
|
16 |
% |
Average Net Sales Price |
|
$ |
64.32 |
|
|
$ |
54.36 |
|
|
|
18 |
% |
|
$ |
61.32 |
|
|
$ |
54.19 |
|
|
|
13 |
% |
Operating Margin |
|
$ |
6.76 |
|
|
$ |
1.95 |
|
|
|
246 |
% |
|
$ |
7.25 |
|
|
$ |
3.27 |
|
|
|
122 |
% |
Operating Earnings |
|
$ |
1,420 |
|
|
$ |
338 |
|
|
|
320 |
% |
|
$ |
4,955 |
|
|
$ |
1,929 |
|
|
|
157 |
% |
|
|
|
Revenues:
|
|
Concrete revenues were primarily impacted by increased average sales prices in the Austin, Texas market of approximately
$11.00 and $8.40 for the three and nine month periods ended December 31, 2005 as compared to the corresponding periods in
2004. Revenues were also positively impacted by increased sales volumes in both the Austin, Texas market and the
Northern California market for the three and nine month periods ended December 31, 2005 as compared to corresponding
periods in 2004. |
|
|
|
Operating Margins:
|
|
Increases in operating margins for the quarter and year-to-date periods is due primarily to increased sales prices during
these periods, partially offset by increased raw materials costs (cement and aggregates) and increased delivery costs. |
|
|
|
Outlook:
|
|
Pricing in the Austin, Texas market has increased as a result of increased construction activity in the region in both
the commercial and residential sectors. We expect stabilized pricing in the Austin, Texas market and continued strong
pricing in the northern California market for the remainder of the fiscal year. |
22
Aggregates
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
|
|
|
|
For the Nine Months Ended |
|
|
|
|
|
|
December 31, |
|
|
Percentage |
|
|
December 31, |
|
|
Percentage |
|
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
2005 |
|
|
2004 |
|
|
Change |
|
|
|
(dollars in thousands) |
|
|
|
|
|
|
(dollars in thousands) |
|
|
|
|
|
Gross Revenues, including
intersegment |
|
$ |
8,429 |
|
|
$ |
6,640 |
|
|
|
27 |
% |
|
$ |
27,459 |
|
|
$ |
22,586 |
|
|
|
22 |
% |
Freight and Delivery Costs
billed to customers |
|
|
(184 |
) |
|
|
(257 |
) |
|
|
(28 |
)% |
|
|
(752 |
) |
|
|
(860 |
) |
|
|
(13 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
8,245 |
|
|
$ |
6,383 |
|
|
|
29 |
% |
|
$ |
26,707 |
|
|
$ |
21,726 |
|
|
|
23 |
% |
|
Sales Volume (M Tons) |
|
|
1,396 |
|
|
|
1,230 |
|
|
|
13 |
% |
|
|
4,584 |
|
|
|
4,114 |
|
|
|
11 |
% |
Average Net Sales Price |
|
$ |
5.91 |
|
|
$ |
5.19 |
|
|
|
14 |
% |
|
$ |
5.83 |
|
|
$ |
5.28 |
|
|
|
10 |
% |
Operating Margin |
|
$ |
(0.07 |
) |
|
$ |
0.49 |
|
|
|
(114 |
)% |
|
$ |
0.66 |
|
|
$ |
0.88 |
|
|
|
(32 |
)% |
Operating Earnings |
|
$ |
(99 |
) |
|
$ |
599 |
|
|
|
(116 |
)% |
|
$ |
3,044 |
|
|
$ |
3,621 |
|
|
|
(16 |
)% |
|
|
|
Revenues:
|
|
Both volume and sales price increased for the three and nine month periods ended December 31, 2005 compared to 2004 due
to strong construction activity in both the Austin, Texas and Sacramento, California markets. Pricing in the Austin,
Texas market has increased by 26% and 20% during the three and nine
month periods ended December 31, 2005. |
|
|
|
Operating Margins:
|
|
Quarter and year-to-date costs were impacted negatively by significantly higher maintenance and fuel costs versus the
comparable periods in the prior year. Increases in maintenance costs were impacted by the start up of the new dredge at
Western Aggregates, as well as the timing of other maintenance projects. |
|
|
|
Outlook:
|
|
We expect that aggregates pricing in the Sacramento area will continue to remain strong in the near term due primarily to
demand outpacing capacity. Aggregates pricing in the Austin, Texas market is anticipated to continue to increase
moderately over the near term due to increased levels of construction activity in the Austin area and a changing mix in
the products sold. |
23
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
The preparation of financial statements in accordance with accounting principles generally
accepted in the United States requires management to adopt accounting policies and make significant
judgments and estimates to develop amounts reflected and disclosed in the financial statements. In
many cases, there are alternative policies or estimation techniques that could be used. We
maintain a thorough process to review the application of our accounting policies and to evaluate
the appropriateness of the many estimates that are required to prepare our financial statements.
However, even under optimal circumstances, estimates routinely require adjustment based on changing
circumstances and the receipt of new or better information.
Information regarding our Critical Accounting Policies and Estimates can be found in our
Annual Report. The four critical accounting policies that we believe are either the most
judgmental, or involve the selection or application of alternative accounting policies, and are
material to our financial statements are those relating to long-lived assets, goodwill,
environmental liabilities and accounts receivable. Management has discussed the development and
selection of these critical accounting policies and estimates with the Audit Committee of our Board
of Directors and with our independent registered public accounting firm. In addition, Note (A) to
the financial statements in our Annual Report contains a summary of our significant policies.
Recent Accounting Pronouncements
Inventory Costs. In November 2004, the FASB issued Statement of Financial Accounting Standards No.
151 (FAS No. 151), Inventory Costs, an amendment of APB No. 43, Chapter 4. The amendments made by
FAS No. 151 require that abnormal amounts of idle facility expense, freight, handling costs, and
wasted materials (spoilage) be recognized as current-period charges and that the allocation of
fixed production overheads to inventory be based on the normal capacity of production facilities.
FAS No. 151 is effective for inventory costs incurred during fiscal years beginning after June 15,
2005, which is Fiscal 2007 for the Company. We are currently evaluating the impact that adoption of
SFAS No. 151 will have on our financial position and results of operations.
24
LIQUIDITY AND CAPITAL RESOURCES
Liquidity.
The following table provides a summary of our cash flows:
|
|
|
|
|
|
|
|
|
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
|
(dollars in thousands) |
|
Net Cash Provided by Operating Activities: |
|
$ |
163,938 |
|
|
$ |
128,604 |
|
Investing Activities: |
|
|
|
|
|
|
|
|
Capital Expenditures and Other Investing Activities |
|
|
(51,956 |
) |
|
|
(15,073 |
) |
|
|
|
|
|
|
|
Net Cash Used in Investing Activities |
|
|
(51,956 |
) |
|
|
(15,073 |
) |
|
|
|
|
|
|
|
|
|
Financing Activities: |
|
|
|
|
|
|
|
|
Issuance of Senior Notes |
|
|
200,000 |
|
|
|
|
|
Reduction in Long-term debt |
|
|
(54,000 |
) |
|
|
(58,700 |
) |
(Reduction in) Addition to Note Payable |
|
|
(30,800 |
) |
|
|
6,000 |
|
Retirement of Common Stock |
|
|
(159,637 |
) |
|
|
(31,186 |
) |
Dividends Paid to Stockholders |
|
|
(16,191 |
) |
|
|
(16,702 |
) |
Proceeds from Stock Option Exercises |
|
|
1,599 |
|
|
|
2,060 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Cash used in Financing Activities |
|
|
(59,029 |
) |
|
|
(98,528 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Increase in Cash |
|
$ |
52,953 |
|
|
$ |
15,003 |
|
|
|
|
|
|
|
|
The $35.3 million increase in cash flows from operating activities for the nine months of
Fiscal 2005 was largely attributable to increased earnings and increases in accounts payable and
accrued liabilities.
Working capital at December 31, 2005, was $92.7 million compared to $19.8 million at March 31,
2005. The increase is due primarily to an increase in cash and a decrease in notes payable and
accounts payable. The increase in cash and decrease in notes payable is due to the issuance of the
Senior Notes.
Total debt increased to $200 million at December 31, 2005 from $84.4 million at December 31,
2004, due primarily to the issuance of the Senior Notes, primarily in relation to the Companys
expansion project at Illinois Cement Company. Debt-to-capitalization at December 31, 2005, was
31.6% compared to 14.9% at March 31, 2005, while net debt-to-capitalization was 24.4% and 13.8% at
December 31, 2005 and March 31, 2005, respectively.
Based on our financial condition and results of operations as of and for the nine months ended
December 31, 2005, along with the projected net earnings for the remainder of Fiscal 2006, we
believe that our internally generated cash flow coupled with funds available under various credit
facilities will enable us to provide adequately for our current operations, dividends, capital
expenditures and future growth through the end of fiscal 2007. The Company was in compliance at
December 31, 2005 and during the nine months ended December 31, 2005 with all the terms and
covenants of its credit agreements and expects to be in compliance during the next 12 months.
Cash and cash equivalents totaled $60.2 million at December 31, 2005, compared to $7.2 million
at March 31, 2005.
25
Debt Financing Activities.
On December 16, 2004, we amended our existing credit facility to increase the facility amount
from $250.0 million to $350.0 million, modified certain financial and other covenants and extended
the maturity date to 2009 (the Bank Credit Facility). The Bank Credit Facility expires on
December 16, 2009, at which time all outstanding borrowings are due. The borrowings under the Bank
Credit Facility are guaranteed by all major operating subsidiaries of the Company. At the option
of the Company, outstanding principal amounts on the Bank Credit Facility bear interest at a
variable rate equal to: (i) LIBOR, plus an agreed margin (ranging from 87.5 to 162.5 basis points),
which is to be established quarterly based upon the Companys ratio of consolidated EBITDA to its
consolidated indebtedness; or (ii) an alternate base rate which is the higher of (a) the prime rate
or (b) the federal funds rate plus 1/2% per annum, plus an agreed margin (ranging from 25 to 100
basis points). Interest payments are payable monthly or at the end of the LIBOR advance periods,
which can be up to a period of six months at the option of the Company. Under the Bank Credit
Facility, we are required to adhere to a number of financial and other covenants, including
covenants relating to the Companys interest coverage ratio and consolidated funded indebtedness
ratio. At December 31, 2005 the Company had $342.1 million of borrowings available under the Bank
Credit Facility.
On November 15, 2005, we entered into a Note Purchase Agreement (the Note Purchase
Agreement) related to our sale of $200 million of senior, unsecured notes, designated as Series
2005A Senior Notes (the Senior Notes) in a private placement transaction. The Senior Notes are
guaranteed by substantially all of the Companys subsidiaries. The Notes were sold at par on
November 15, 2005 and were issued in three tranches, as follows:
|
|
|
|
|
|
|
|
|
|
|
Principal |
|
Maturity Date |
|
Interest Rate |
Tranche A |
|
$40,000 |
|
November 15, 2012 |
|
|
5.25 |
% |
Tranche B |
|
$80,000 |
|
November 15, 2015 |
|
|
5.38 |
% |
Tranche C |
|
$80,000 |
|
November 15, 2017 |
|
|
5.48 |
% |
Interest for each tranche of Senior Notes is payable semi-annually on the 15th
day of May and the 15th day of November of each year until all principal is paid for the
respective tranche.
Our obligations under the Note Purchase Agreement and the Senior Notes are equal in right of
payment with all other senior, unsecured debt of the Company, including our debt under the Bank
Credit Facility. The Note Purchase Agreement contains customary restrictive covenants, including
covenants that place limits on our ability to encumber our assets, to incur additional debt, to
sell assets, or to merge or consolidate with third parties, as well as certain cross covenants with
the Bank Credit Facility.
The Company paid all outstanding amounts and terminated its trade receivables securitization
facility (the Receivables Securitization Facility) in December 2005. The Receivables
Securitization Facility had been fully consolidated on the accompanying unaudited consolidated
balance sheet prior to cancellation.
Other than the Bank Credit Facility and the Senior Notes, the Company has no other source of
committed external financing in place. In the event the Bank Credit Facility was terminated, no
assurance can be given as to the Companys ability to secure a new source of financing.
Consequently, if a balance is outstanding on the Bank Credit Facility at the time of termination,
and an alternative source of financing cannot be secured, it would have a material adverse impact
on the Company. None of the Companys debt is rated by the rating agencies.
The Company does not have any off balance sheet debt except for operating leases. Other than
the Receivables Securitization Facility, which was terminated in December 2005, the Company did not
have any other transactions, arrangements or relationships with special purpose entities. Also,
the Company has no outstanding debt guarantees. The Company has available under the Bank Credit
Facility a $25.0 million Letter of Credit Facility. At December 31, 2005, the Company had $7.9
million of letters of credit outstanding that renew annually. We are contingently liable for
performance under $6.9 million in performance bonds relating primarily to our mining operations.
26
Cash used for Share Repurchases.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock |
|
|
Class B Common Stock |
|
|
|
Shares Purchased |
|
|
Average Price Paid |
|
|
Shares Purchased |
|
|
Average Price Paid |
|
|
|
|
|
|
|
Per Share |
|
|
|
|
|
|
Per Share |
|
April 1 through April 30, 2005 |
|
|
|
|
|
$ |
|
|
|
|
77,400 |
|
|
$ |
26.81 |
|
May 1 through May 31, 2005 |
|
|
93,000 |
|
|
|
26.65 |
|
|
|
166,950 |
|
|
|
27.56 |
|
June 1 through June 30, 2005 |
|
|
492,162 |
|
|
|
30.53 |
|
|
|
415,641 |
|
|
|
29.65 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter 1 Totals |
|
|
585,162 |
|
|
$ |
29.92 |
|
|
|
659,991 |
|
|
$ |
28.79 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
July 1 through July 31, 2005 |
|
|
151,146 |
|
|
$ |
31.71 |
|
|
|
63,864 |
|
|
$ |
30.89 |
|
August 1 through August 31, 2005 |
|
|
|
|
|
|
|
|
|
|
97,200 |
|
|
|
33.51 |
|
September 1 through September 30, 2005 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter 2 Totals |
|
|
151,146 |
|
|
$ |
31.71 |
|
|
|
161,064 |
|
|
$ |
32.47 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
October 1 through October 31, 2005 |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
November 1 through November 30, 2005 |
|
|
405,000 |
|
|
|
37.84 |
|
|
|
108,300 |
|
|
|
35.95 |
|
December 1 through December 31, 2005 |
|
|
2,104,500 |
|
|
|
40.32 |
|
|
|
232,800 |
|
|
|
38.81 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter 3 Totals |
|
|
2,509,500 |
|
|
$ |
39.92 |
|
|
|
341,100 |
|
|
$ |
37.91 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year-to-Date Totals |
|
|
3,245,808 |
|
|
$ |
37.73 |
|
|
|
1,162,155 |
|
|
$ |
31.97 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2005, we had remaining authorization to purchase 389,685 shares. On
January 24, 2006, the Board of Directors authorized the Company
to repurchase up to an additional
2,610,315, for a total authorization of 3,000,000 (on a post-split basisSee Note B to the
unaudited financial statements). Share repurchases may be made from time-to-time in the open
market or in privately negotiated transactions. The timing and amount of any repurchases of shares
will be determined by the Companys management, based on its evaluation of market and economic
conditions and other factors. The repurchase authorization applies to both classes of the
Companys common stock.
Dividends.
Dividends paid in the nine months of 2005 and 2004 were $16.2 million and $16.7
million, respectively. Each quarterly dividend payment is subject to review and approval by our
Board of Directors, and we intend to evaluate our dividend payment amount on an ongoing basis. On
January 25, 2006, the Company announced that it will increase its annual cash dividends to $2.10
per share from $1.20 per share on a pre-split basis, or $0.70 per share from $0.40 on a post-split
basis. The Board of Directors has declared a quarterly cash dividend of $0.175 per share, on a
post split basis, payable on April 21, 2006 to stockholders of record on March 22, 2006.
Capital Resources.
The following table compares capital expenditures:
|
|
|
|
|
|
|
|
|
|
|
For the Nine Months |
|
|
|
Ended December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
|
(dollars in thousands) |
|
Land and Quarries |
|
$ |
1,052 |
|
|
$ |
2,558 |
|
Plants |
|
|
38,567 |
|
|
|
9,929 |
|
Buildings, Machinery and Equipment |
|
|
12,337 |
|
|
|
3,968 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Capital Expenditures |
|
$ |
51,956 |
|
|
$ |
16,455 |
|
|
|
|
|
|
|
|
For fiscal 2006, we expect expenditures of approximately $72 million ($52.6 million
higher than our 2005 levels), with the year-over-year increase due primarily to the expansion of
Illinois Cement Company, a new dredge at Western Aggregates and the exercise of a purchase option
for additional railcars. Historically, we have financed such expenditures with cash from
operations and borrowings under our credit facilities.
27
GENERAL OUTLOOK
See Outlook discussions in each of our segment operations.
FORWARD-LOOKING STATEMENTS
Certain sections of this report, including Managements Discussion and Analysis of Results of
Operations and Financial Condition contain forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act of 1934 and the
Private Litigation Reform Act of 1995. Forward-looking statements may be identified by the context
of the statement and generally arise when the Company is discussing its beliefs, estimates or
expectations. These statements involve known and unknown risks and uncertainties that may cause
the Companys actual results to be materially different from planned or expected results. Those
risks and uncertainties include, but are not limited to:
|
|
|
Levels of construction spending. Demand for the Companys products is directly
related to the level of activity in the construction industry, which includes
residential, commercial and infrastructure construction. Furthermore, activity in the
infrastructure construction business is directly related to the amount of government
funding available for such projects. Any decrease in the amount of government funds
available for such projects or any decrease in construction activity in general could
have a material adverse effect on the Companys financial condition and results of
operations. |
|
|
|
|
Interest rates. The Companys business is significantly affected by the movement of
interest rates. Interest rates have a direct impact on the level of residential,
commercial and infrastructure construction activity put in place. Higher interest
rates could have a material adverse effect on our business and results of operations.
In addition, increases in interest rates could result in higher interest expense
related to the Companys borrowings under its credit facilities. |
|
|
|
|
Price fluctuations and supply/demand for our products. The products sold by the
Company are commodities and competition among manufacturers is based largely on price.
Prices are often subject to material changes in response to relatively minor
fluctuations in supply and demand, general economic conditions and other market
conditions beyond our control. Increases in the production capacity for products such
as gypsum wallboard may create an oversupply of such products and negatively impact
product prices. There can be no assurance that prices for products sold by the Company
will not decline in the future or that such declines will not have a material adverse
effect on our financial condition and results of operations. |
|
|
|
|
Significant changes in the cost of, and the availability of, fuel, energy and other
raw materials. Significant increases in the cost of fuel, energy or raw materials used
in connection with our businesses or substantial decreases in their availability could
materially and adversely affect our sales and operating profits. Major cost components
in each of our businesses are the cost of fuel, energy and raw materials. Prices for
fuel, energy or raw materials used in connection with our businesses could change
significantly in a short period of time for reasons outside our control. In the event
of large or rapid increases in prices, we may not be able to pass the increases through
to our customers in full, which would reduce our operating margin. |
|
|
|
|
The seasonal nature of the Companys business. A majority of our business is
seasonal with peak revenues and profits occurring primarily in the months of April
through November. Quarterly results have varied significantly in the past and are
likely to vary significantly from quarter to quarter in the future. Such variations
could have a negative impact on the price of the Companys common stock. |
28
|
|
|
National and regional economic conditions. A majority of our revenues are from
customers who are in industries and businesses that are cyclical in nature and subject
to changes in general economic conditions. In addition, since operations occur in a
variety of geographic markets, our businesses are subject to the economic conditions in
each such geographic market. General economic downturns or localized downturns in the
regions where we have operations, including any downturns in the construction industry
or increases in capacity in the gypsum wallboard, paperboard and cement industries,
could have a material adverse effect on our business, financial condition and results
of operations. |
|
|
|
|
Unfavorable weather conditions during peak construction periods and other unexpected
operational difficulties. Because a majority of our business is seasonal, bad weather
conditions and other unexpected operational difficulties during peak periods could
adversely affect operating income and cash flow and could have a disproportionate
impact on our results of operations for the full year. |
|
|
|
|
Competition from new or existing competitors or the ability to successfully
penetrate new markets. The construction products industry is highly competitive. If
we are unable to keep our products competitively priced, our sales could be reduced
materially. Also, we may experience increased competition from companies offering
products based on new processes that are more efficient or result in improvements in
product performance, which could put us at a disadvantage and cause us to lose
customers and sales volume. Our failure to continue to compete effectively could have
a material adverse effect on our business, financial condition and results of
operations. |
|
|
|
|
Environmental liabilities. Our operations are subject to state, federal and local
environmental laws and regulations, which impose liability for cleanup or remediation
of environmental pollution and hazardous waste arising from past acts; and require
pollution control and prevention, site restoration and operating permits and/or
approvals to conduct certain of its operations. Certain of our operations may from
time-to-time involve the use of substances that are classified as toxic or hazardous
substances within the meaning of these laws and regulations. Risk of environmental
liability is inherent in the operation of our businesses. As a result, it is possible
that environmental liabilities could have a material adverse effect on the Company in
the future. |
|
|
|
|
Compliance with governmental regulations. Our operations and our customers are
subject to and affected by federal, state and local laws and regulations with respect
to land usage, street and highway usage, noise level and health and safety and
environmental matters. In many instances, various permits are required for
construction and related operations. Although management believes that we are in
compliance in all material respects with regulatory requirements, there can be no
assurance that the Company will not incur material costs or liabilities in connection
with regulatory requirements or that demand for its products will be affected by
regulatory issues affecting its customers. |
|
|
|
|
Events that may disrupt the U.S. or world economy. Future terrorist attacks, the
ensuing U.S. military and other responsive actions, could have a significant adverse
effect on the general economic, market and political conditions, which in turn could
have material adverse effect on the Companys business. |
|
|
|
|
Significant changes in the cost and availability of transportation. Some of the raw
materials used in our manufacturing processes, such as coal or coke, are transported to
our facilities by truck or rail. In addition, the transportation costs associated with
the delivery of our wallboard products are a significant portion of the variable cost
of the wallboard division. Significant increases in the cost of fuel or energy can
result in material increases in the cost of transportation which could materially and
adversely affect our operating profits. In addition, reductions in the availability
of certain modes of transportation such as rail or trucking could limit our ability to
deliver product and therefore materially and adversely affect our operating profits. |
29
In general, the Company is subject to the risks and uncertainties of the construction industry
and of doing business in the U.S. The forward looking statements are made as of the date of this
report, and the Company undertakes no obligation to update them, whether as a result of new
information, future events or otherwise.
Item 3. Quantitative and Qualitative Disclosures about Market Risk
We are exposed to market risks related to fluctuations in interest rates on our Bank
Credit Facility. From time-to-time we have utilized derivative instruments, including interest
rate swaps, in conjunction with our overall strategy to manage the debt outstanding that is subject
to changes in interest rates. At December 31, 2005 there were no outstanding borrowings under the
Bank Credit Facility. Presently, we do not utilize derivative financial instruments.
The Company is subject to commodity risk with respect to price changes principally in coal,
coke, natural gas and power. We attempt to limit our exposure to change in commodity prices by
entering into contracts or increasing use of alternative fuels.
Item 4. Controls and Procedures
An evaluation has been performed under the supervision and with the participation of the
Companys management, including the Companys Chief Executive Officer and Chief Financial Officer,
of the effectiveness of the design and operation of our disclosure controls and procedures as of
December 31, 2005. Based on that evaluation, the Companys management, including its Chief
Executive Officer and Chief Financial Officer, concluded that the Companys disclosure controls and
procedures were effective as of December 31, 2005, to provide reasonable assurance that the
information required to be disclosed in the Companys reports filed or submitted under the
Securities Exchange Act of 1934 is processed, summarized and reported within the time periods
specified in the rules and forms of the Securities and Exchange Commission. There have been no
changes in the Companys internal control over financial reporting during the Companys last fiscal
quarter that have materially affected, or are reasonably likely to materially affect the Companys
internal controls over financial reporting.
30
Part II. Other Information
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
The disclosure required under this Item is included in Item 2. of this Quarterly Report
on Form 10-Q under the heading Cash Used for Share Repurchase and is incorporated herein by
reference.
Item 6. Exhibits
|
|
|
|
|
|
|
|
|
* |
4.1 |
|
|
Amended and Restated Credit Agreement dated as of December 16, 2004 among
Eagle Materials Inc., the lenders party thereto, JP Morgan Chase Bank N. A, as
Administrative Agent, Bank of America, N. A. and PNC Bank, N. A. as
Con
Syndication Agents, and Sun Trust and Wells Fargo Bank N. A. as Co-Documentation
Agents, as amended through December 31, 2005. |
|
|
|
|
|
|
|
|
|
|
10.1 |
|
|
Note Purchase Agreement dated as of November 15, 2005 among Eagle
Materials Inc. and the Purchasers named therein, filed as exhibit 10.1 to the
Current Report on Form 8-K filed with the Securities and Exchange Commission on
November 18, 2005, and incorporated herein by reference. |
|
|
|
|
|
|
|
|
|
* |
31.1 |
|
|
Certification of the Chief Executive Officer of Eagle Materials
Inc. pursuant to Rules 13a-14 and 15d-14 promulgated under the Securities
Exchange Act of 1934, as amended. |
|
|
|
|
|
|
|
|
|
* |
31.2 |
|
|
Certification of the Chief Financial Officer of Eagle Materials
Inc. pursuant to Rules 13a-14 and 15d-14 promulgated under the Securities
Exchange Act of 1934, as amended. |
|
|
|
|
|
|
|
|
|
* |
32.1 |
|
|
Certification of the Chief Executive Officer of Eagle Materials
Inc. pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002. |
|
|
|
|
|
|
|
|
|
* |
32.2 |
|
|
Certification of the Chief Financial Officer of Eagle Materials
Inc. pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002. |
* Filed herewith
31
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
EAGLE MATERIALS INC. |
|
|
|
|
|
Registrant |
|
|
|
February 6, 2006
|
|
/s/STEVEN R. ROWLEY |
|
|
|
|
|
Steven R. Rowley |
|
|
President and Chief Executive Officer |
|
|
(principal executive officer) |
|
|
|
February 6, 2006
|
|
/s/ARTHUR R. ZUNKER, JR. |
|
|
|
|
|
Arthur R. Zunker, Jr. |
|
|
Senior Vice President, Treasurer and |
|
|
Chief Financial Officer |
|
|
(principal financial and chief accounting officer) |
32
exv4w1
Exhibit 4.1
AMENDED AND RESTATED
CREDIT AGREEMENT
among
EAGLE MATERIALS INC.
(formerly Centex Construction Products, Inc.)
as Borrower,
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank and successor by merger to Bank One, N.A.),
as Administrative Agent and a Lender,
and
BANK OF AMERICA, N.A.
and
PNC BANK, N.A.,
as
CoSyndication Agents
and Lenders
and
SUNTRUST BANK
and
WELLS FARGO BANK, N.A.
as CoDocumentation Agents
and a Lender
and
the other Lenders from time to time party hereto
16 December 2004
J.P. MORGAN SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
Conformed Copy
[Incorporating First through Third Amendments]
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page # |
|
|
|
|
|
|
|
ARTICLE I. DEFINITIONS |
|
|
1 |
|
|
|
|
|
|
|
|
Section 1.01.
|
|
Defined Terms
|
|
|
1 |
|
Section 1.02.
|
|
Classification of Loans and Borrowings
|
|
|
15 |
|
Section 1.03.
|
|
Terms Generally
|
|
|
15 |
|
Section 1.04.
|
|
Accounting Terms; GAAP
|
|
|
16 |
|
|
|
|
|
|
|
|
ARTICLE II. THE CREDITS |
|
|
16 |
|
|
|
|
|
|
|
|
Section 2.01.
|
|
Commitments
|
|
|
16 |
|
Section 2.02.
|
|
Loans and Borrowings
|
|
|
16 |
|
Section 2.03.
|
|
Requests for Revolving Borrowings
|
|
|
17 |
|
Section 2.04.
|
|
Swingline Loans
|
|
|
17 |
|
Section 2.05.
|
|
Letters of Credit
|
|
|
18 |
|
Section 2.06.
|
|
Funding of Borrowings
|
|
|
22 |
|
Section 2.07.
|
|
Interest Elections
|
|
|
23 |
|
Section 2.08.
|
|
Termination and Reduction of Commitments
|
|
|
24 |
|
Section 2.09.
|
|
Repayment of Loans; Evidence of Debt
|
|
|
24 |
|
Section 2.10.
|
|
Prepayment of Loans
|
|
|
25 |
|
Section 2.11.
|
|
Fees
|
|
|
25 |
|
Section 2.12.
|
|
Interest
|
|
|
26 |
|
Section 2.13.
|
|
Alternate Rate of Interest
|
|
|
27 |
|
Section 2.14.
|
|
Increased Costs
|
|
|
27 |
|
Section 2.15.
|
|
Break Funding Payments
|
|
|
28 |
|
Section 2.16.
|
|
Taxes
|
|
|
29 |
|
Section 2.17.
|
|
Payments Generally; Pro Rata Treatment; Sharing of Set-offs
|
|
|
30 |
|
Section 2.18.
|
|
Mitigation Obligations; Replacement of Lenders
|
|
|
31 |
|
Section 2.19.
|
|
Increase of Revolving Commitments
|
|
|
32 |
|
|
|
|
|
|
|
|
ARTICLE III. REPRESENTATIONS AND WARRANTIES |
|
|
32 |
|
|
|
|
|
|
|
|
Section 3.01.
|
|
Organization; Powers
|
|
|
32 |
|
Section 3.02.
|
|
Authorization; Enforceability
|
|
|
33 |
|
Section 3.03.
|
|
Governmental Approvals; No Conflicts
|
|
|
33 |
|
Section 3.04.
|
|
Financial Condition; No Material Adverse Change
|
|
|
33 |
|
Section 3.05.
|
|
Properties
|
|
|
33 |
|
Section 3.06.
|
|
Litigation and Environmental Matters
|
|
|
34 |
|
Section 3.07.
|
|
Compliance with Laws and Agreements
|
|
|
34 |
|
Section 3.08.
|
|
Investment and Holding Company Status
|
|
|
34 |
|
Section 3.09.
|
|
Taxes
|
|
|
34 |
|
Section 3.10.
|
|
ERISA
|
|
|
34 |
|
Section 3.11.
|
|
Disclosure
|
|
|
35 |
|
Section 3.12.
|
|
Subsidiaries
|
|
|
35 |
|
Section 3.13.
|
|
Indebtedness
|
|
|
35 |
|
Section 3.14.
|
|
Solvency
|
|
|
35 |
|
Section 3.15.
|
|
Margin Securities
|
|
|
35 |
|
|
|
|
|
|
|
|
TABLE OF CONTENTS, Page i of iii |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page # |
ARTICLE IV. CONDITIONS |
|
|
36 |
|
|
|
|
|
|
|
|
Section 4.01.
|
|
Effective Date
|
|
|
36 |
|
Section 4.02.
|
|
Each Credit Event
|
|
|
37 |
|
Section 4.03.
|
|
Effective Date Adjustments
|
|
|
37 |
|
|
|
|
|
|
|
|
ARTICLE V. AFFIRMATIVE COVENANTS |
|
|
37 |
|
|
|
|
|
|
|
|
Section 5.01.
|
|
Financial Statements; Ratings Change and Other Information
|
|
|
37 |
|
Section 5.02.
|
|
Notices of Material Events
|
|
|
38 |
|
Section 5.03.
|
|
Existence; Conduct of Business
|
|
|
39 |
|
Section 5.04.
|
|
Payment of Obligations
|
|
|
39 |
|
Section 5.05.
|
|
Maintenance of Properties; Insurance
|
|
|
39 |
|
Section 5.06.
|
|
Books and Records; Inspection Rights
|
|
|
39 |
|
Section 5.07.
|
|
Compliance with Laws and Agreements
|
|
|
39 |
|
Section 5.08.
|
|
Use of Proceeds
|
|
|
40 |
|
Section 5.09.
|
|
Joinder of Subsidiaries to Subsidiary Guaranty
|
|
|
40 |
|
Section 5.10.
|
|
Further Assurances
|
|
|
40 |
|
Section 5.11.
|
|
Receivables Securitization
|
|
|
40 |
|
|
|
|
|
|
|
|
ARTICLE VI. NEGATIVE COVENANTS |
|
|
40 |
|
|
|
|
|
|
|
|
Section 6.01.
|
|
Indebtedness
|
|
|
40 |
|
Section 6.02.
|
|
Liens
|
|
|
42 |
|
Section 6.03.
|
|
Fundamental Changes; Sale of Assets
|
|
|
43 |
|
Section 6.04.
|
|
Investments, Loans, Advances, Guaranties and Acquisitions
|
|
|
44 |
|
Section 6.05.
|
|
Swap Agreements
|
|
|
46 |
|
Section 6.06.
|
|
Restricted Payments; Prepayments of Indebtedness
|
|
|
47 |
|
Section 6.07.
|
|
Transactions with Affiliates
|
|
|
48 |
|
Section 6.08.
|
|
Restrictive Agreements
|
|
|
48 |
|
Section 6.09.
|
|
Interest Coverage Ratio
|
|
|
49 |
|
Section 6.10.
|
|
Leverage Ratio
|
|
|
49 |
|
Section 6.11.
|
|
Sale and Lease-Back Transactions
|
|
|
49 |
|
|
|
|
|
|
|
|
ARTICLE VII. EVENTS OF DEFAULT |
|
|
49 |
|
|
|
|
|
|
|
|
ARTICLE VIII. THE ADMINISTRATIVE AGENT |
|
|
51 |
|
|
|
|
|
|
|
|
ARTICLE IX. MISCELLANEOUS |
|
|
53 |
|
|
|
|
|
|
|
|
Section 9.01.
|
|
Notices
|
|
|
53 |
|
Section 9.02.
|
|
Waivers; Amendments
|
|
|
53 |
|
Section 9.03.
|
|
Expenses; Indemnity; Damage Waiver
|
|
|
54 |
|
Section 9.04.
|
|
Successors and Assigns
|
|
|
56 |
|
Section 9.05.
|
|
Survival
|
|
|
58 |
|
Section 9.06.
|
|
Counterparts; Integration; Effectiveness
|
|
|
58 |
|
Section 9.07.
|
|
Severability
|
|
|
59 |
|
Section 9.08.
|
|
Right of Setoff
|
|
|
59 |
|
Section 9.09.
|
|
Governing Law; Jurisdiction; Consent to Service of Process
|
|
|
59 |
|
Section 9.10.
|
|
WAIVER OF JURY TRIAL
|
|
|
60 |
|
Section 9.11.
|
|
Headings
|
|
|
60 |
|
Section 9.12.
|
|
Confidentiality
|
|
|
60 |
|
|
|
|
|
|
|
|
TABLE OF CONTENTS, Page ii of iii |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page # |
Section 9.13.
|
|
Maximum Interest Rate
|
|
|
61 |
|
Section 9.14.
|
|
No Fiduciary Relationship
|
|
|
62 |
|
Section 9.15.
|
|
Construction
|
|
|
62 |
|
Section 9.16.
|
|
Independence of Covenants
|
|
|
62 |
|
Section 9.17.
|
|
USA PATRIOT Act
|
|
|
62 |
|
|
|
|
|
|
|
|
TABLE
OF CONTENTS, Page iii of iii
|
|
|
|
|
|
|
LIST OF SCHEDULES AND EXHIBITS
|
|
|
|
|
|
|
|
|
|
Schedules: |
|
|
|
|
|
|
|
|
|
Schedule 1.01(a)
|
|
|
|
Existing Letters of Credit |
Schedule 2.01
|
|
|
|
Commitments |
Schedule 3.05
|
|
|
|
Existing Liens |
Schedule 3.06
|
|
|
|
Disclosed Matters |
Schedule 3.12
|
|
|
|
Subsidiaries |
Schedule 3.13
|
|
|
|
Existing Indebtedness |
Schedule 6.04
|
|
|
|
Existing Investments |
Schedule 6.08
|
|
|
|
Existing Restrictions |
|
|
|
|
|
Exhibits: |
|
|
|
|
|
|
|
|
|
Exhibit A
|
|
|
|
Form of Assignment and Assumption |
Exhibit B
|
|
|
|
Form of Opinion of Borrowers Counsel |
Exhibit C
|
|
|
|
Form of Guaranty Agreement |
Exhibit D
|
|
|
|
Form of Notice of Borrowing |
Exhibit E
|
|
|
|
Form of Increased Commitment Supplement |
LIST OF SCHEDULES AND EXHIBITS, Solo Page
AMENDED AND RESTATED CREDIT AGREEMENT (this Agreement) dated as of December
16, 2004, among EAGLE MATERIALS INC. (formerly know as Centex Construction Products, Inc.) as the
Borrower, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase
Bank and successor by merger to Bank One, N.A.), as Administrative Agent.
Centex Construction Products, Inc. (who is now known as the Borrower), the lenders identified
therein named and JPMorgan Chase Bank (who is now known as JPMorgan Chase Bank, N.A.) as
administrative agent previously entered into that certain Credit Agreement dated as of December 18,
2003 (as the same has been amended by that certain First Amendment to Credit Agreement dated May
21, 2004, herein referred to as the Prior Agreement).
Since the date of the Prior Agreement:
(a) JPMorgan Chase Bank changed its name to JPMorgan Chase Bank, N.A.;
(b) Bank One, N.A., a lender under the Prior Agreement, merged with and into JPMorgan Chase
Bank; and
(c) Calyon New York Branch (formerly Credit Lyonnais New York Branch) assigned to JPMorgan
Chase Bank, N.A. all of its right, title and interest in and to the Prior Agreement.
The Borrower, the lenders party hereto and the Administrative Agent now desire to enter into
this Agreement to amend and restate the Prior Agreement in its entirety and agree as follows:
ARTICLE
I.
Definitions
Section 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings
specified below:
ABR, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.
Acquisition means any transaction, or any series of related transactions, by which
the Borrower or any of the Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any Person or division or business unit thereof, whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) 50% or more (in number of votes) of the Equity
Interests of a Person having ordinary voting power for the election of the board of directors or
other applicable governing body (other than securities having such power only by reason of the
happening of a contingency) or 50% or more (by percentage or voting power) of the outstanding
Equity Interests of a partnership or limited liability company.
Adjusted LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Adjusted Net Income has the meaning assigned to such term in the definition of the
term Consolidated EBITDA.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 1
Administrative Agent means JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank) in its capacity as administrative agent for the Lenders hereunder.
Administrative Questionnaire means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest 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%. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
Applicable Percentage means, with respect to any Lender, the percentage of the total
Commitments represented by such Lenders Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
Applicable Rate means, for any day, with respect to any ABR Loan or Eurodollar
Revolving Loan, or with respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption ABR Spread, Eurodollar Spread or
Commitment Fee Rate, as the case may be, opposite the category in the table below which
corresponds with the actual Leverage Ratio as of the most recent determination date;
provided that from and including the Effective Date until the first date that the
Applicable Rate is determined as set forth below in this definition, the Applicable Rate shall be
the applicable rate per annum set forth below in Category 1:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eurodollar |
|
|
|
|
|
|
Commitment |
|
Leverage Ratio |
|
Spread |
|
|
ABR Spread |
|
|
Fee Rate |
|
Category 1 |
|
|
|
|
|
|
|
|
|
|
|
|
<1.00 to 1.00 |
|
|
0.875 |
% |
|
|
0.000 |
% |
|
|
0.175 |
% |
Category 2 |
|
|
|
|
|
|
|
|
|
|
|
|
³ 1.00 to 1.00 |
|
|
|
|
|
|
|
|
|
|
|
|
but |
|
|
|
|
|
|
|
|
|
|
|
|
< 1.50 to 1.00 |
|
|
1.125 |
% |
|
|
0.125 |
% |
|
|
0.200 |
% |
Category 3 |
|
|
|
|
|
|
|
|
|
|
|
|
> 1.50 to 1.00 |
|
|
|
|
|
|
|
|
|
|
|
|
but |
|
|
|
|
|
|
|
|
|
|
|
|
< 2.00 to 1.00 |
|
|
1.375 |
% |
|
|
0.375 |
% |
|
|
0.250 |
% |
Category 4 |
|
|
|
|
|
|
|
|
|
|
|
|
> 2.00 to 1.00 |
|
|
1.625 |
% |
|
|
0.625 |
% |
|
|
0.300 |
% |
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end
of each fiscal quarter of the Borrowers fiscal year based upon the Borrowers consolidated
financial statements delivered pursuant
to Section 5.01(a) or (b), beginning with the fiscal
quarter ended December 31, 2004 and (ii) each change in the Applicable Rate resulting from a change
in the Leverage Ratio shall be effective during the period commencing on and including the date of
delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding the effective
date of the next such change; provided that the Leverage Ratio shall be deemed to be in
Category 4: (A) at any time that an Event of Default has occurred and is continuing or (B) at the
option of the Administrative Agent or at the request of the Required Lenders, if the Borrower
fails to deliver the consolidated financial statements required to be delivered by it pursuant
AMENDED AND RESTATED CREDIT AGREEMENT, Page 2
to Section 5.01(a) or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
Approved Fund has the meaning assigned to such term in Section 9.04(b)(ii)(D).
Assignment and Assumption means an Assignment and Assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
Availability Period means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.
Board means the Board of Governors of the Federal Reserve System of the United
States of America.
Borrower means Eagle Materials Inc. (formerly Centex Construction Products,
Inc.).
Borrowing means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect or (b) a Swingline Loan.
Borrowing Request means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03 and in substantially the form of Exhibit D hereto.
Business Day means any day that is not a Saturday, Sunday or other day on which
commercial banks in Dallas, Texas and New York, New York are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan, the term
Business Day shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
Capital Lease Obligations of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Cash Collateral Account has the meaning assigned to such term in Section 2.05(j).
Change in Control means (a) the acquisition by any party, or two or more parties
acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 50% or more of the outstanding
shares of the stock of the Borrower entitled to elect 50% or more of the
members of the board of directors of the Borrower, or (b) during any period of twelve (12)
consecutive months, a majority of the members of the board of directors or other equivalent
governing body of the Borrower cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body, or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial
AMENDED AND RESTATED CREDIT AGREEMENT, Page 3
nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any Person or group other than a
solicitation for the election of one or more directors by or on behalf of the board of directors).
Change in Law means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.14(b), by any lending
office of such Lender or by such Lenders or an Issuing Banks holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
Class, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Commitment means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lenders Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section
2.08; (b) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04; and (c) increased from time to time pursuant to Section 2.19. The
initial amount of each Lenders Commitment is set forth on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Commitment. The initial aggregate
amount of the Lenders Commitments is $350,000,000.00.
Consolidated EBIT means, for any period, the sum of Consolidated EBITDA for such
period minus depreciation and amortization for such period, all calculated for the Borrower and the
Subsidiaries on a consolidated basis.
Consolidated EBITDA means, with respect to any Person and any period, the sum of the
following calculated for such Person on a consolidated basis:
(a) the total of: (i) its Consolidated Net Income minus; (ii) the income (or plus the loss) of
any third party (other than a subsidiary of the Person) in which the Person or a subsidiary of such
Person has an ownership interest; plus (iii) the income of any such third party to the extent
actually received in cash by the Person or a subsidiary of such Person in the form of dividends or
similar distributions (the amount determined in accordance with this clause (a), herein the
Adjusted Net Income); plus
(b) to the extent deducted from revenues in determining Adjusted Net Income: (i) its
Consolidated Interest Expense; (ii) expense for taxes paid or accrued; (iii) depreciation; (iv)
amortization; and (v) extraordinary non-cash losses incurred other than in the ordinary course of
business; minus
(c) to the extent included in its Adjusted Net Income, extraordinary, nonrecurring or other
nonoperating income or gains.
Notwithstanding anything herein to the contrary, but without duplication, the Borrowers
Consolidated EBITDA for any period shall: (i) include, to the extent the following can be
determined from audited financial statements delivered to the Administrative Agent and to the
extent not already included in the
AMENDED AND RESTATED CREDIT AGREEMENT, Page 4
Borrowers Consolidated EBITDA for such period: (a) in the case
of an Acquisition of Equity Interests in a Person, the Consolidated EBITDA of such Person for the
portion of the calculation period before it became a Subsidiary and (b) in the case of an
Acquisition of assets, the Consolidated EBITDA associated with such acquired assets for the portion
of the calculation period before such acquisition by the Borrower or any Subsidiary and (ii)
exclude: (a) in the case of a disposition of Equity Interests in a Person, the Consolidated EBITDA
of such Person for the portion of the calculation period after it is directly or indirectly
disposed of and (b) in the case of a disposition of assets, the Consolidated EBITDA associated with
such assets for the portion of the calculation period after such assets were disposed of.
Consolidated Indebtedness means, at any time, the Indebtedness of the Borrower and
the Subsidiaries calculated on a consolidated basis as of such time, excluding however, any
Indebtedness under Swap Agreements that is not then due.
Consolidated Interest Expense means, with reference to any period and any Person,
the interest expense and preferred stock dividends of such Person calculated on a consolidated
basis for such period.
Consolidated Net Income means, with reference to any period and any Person, the net
income (or loss) of such Person calculated on a consolidated basis for such period.
Consolidated Net Worth means, at any time, the consolidated stockholders equity of
the Borrower and the Subsidiaries calculated on a consolidated basis as of such time.
Consolidated Tangible Net Worth means, at any time, the Consolidated Net Worth,
minus (a) any intangible assets, including, without limitation, patents, patent rights,
trademarks, trade names, franchises, copyrights, goodwill, and other similar intangible assets of
the Borrower and the Subsidiaries calculated on a consolidated basis as of such time, minus (b) any
non-cash gain (or plus any non-cash loss, as applicable) resulting from any mark-to-market
adjustments made directly to Consolidated Net Worth as a result of fluctuations in the value of
financial instruments owned by the Borrower or any of the Subsidiaries as mandated under Financial
Accounting Standards Board Statement 133.
Control means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. Controlling and Controlled
have meanings correlative thereto.
Default means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Disclosed Matters means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.
dollars or $ refers to lawful money of the United States of America.
Effective Date means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).
Environmental Laws means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 5
Environmental Liability means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
Equity Interests means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
Eurodollar, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
Event of Default has the meaning assigned to such term in Article VII.
Excluded Taxes means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to
AMENDED AND RESTATED CREDIT AGREEMENT, Page 6
this Agreement (or designates a new
lending office) or is attributable to such Foreign Lenders failure to comply with Section 2.16(e),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.16(a).
Existing Letters of Credit shall mean the letters of credit which are Letters of
Credit under the Prior Agreement, which are outstanding on the Effective Date and are listed on
Schedule 1.01(a) hereto.
Federal Funds Effective Rate means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Financial Officer means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.
Foreign Lender means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
GAAP means generally accepted accounting principles in the United States of America.
Governmental Authority means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
Guaranty of or by any Person (the guarantor) means any obligation,
contingent or otherwise, of the guarantor guarantying or having the economic effect of guarantying
any Indebtedness or other obligation (including any obligation under an operating lease) of any
other Person (the primary obligor) in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or other obligation or to
purchase (or to advance or supply funds for the purchase of) any security for the payment thereof,
(b) to purchase or lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation (including any obligation under an operating lease) of the
payment thereof, (c) to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation; provided, that the
term Guaranty shall not include endorsements for collection or deposit in the ordinary course of
business.
Guarantor means any Subsidiary of the Borrower who is a guarantor under the
Subsidiary Guaranty as required by Section 5.09.
Hazardous Materials means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates,
AMENDED AND RESTATED CREDIT AGREEMENT, Page 7
asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Indebtedness of any Person means, without duplication, (a) all obligations of such
Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments; (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person; (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business and payable on customary trade terms);
(e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired
by such Person, whether or not the Indebtedness secured thereby has been assumed; (f) all
Guaranties by such Person; (g) all Capital Lease Obligations of such Person; (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit; (i)
all obligations, contingent or otherwise, of such Person in respect of bankers acceptances; (j)
all obligations of such Person in respect of mandatory redemption or mandatory dividend rights on
Equity Interests but excluding dividends payable solely in additional Equity Interests; (k) all
obligations of such Person, contingent or otherwise, for the payment of money under any noncompete,
consulting or similar agreement entered into with the seller of a target or any other similar
arrangements providing for the deferred payment of the purchase price for an Acquisition permitted
hereby or an Acquisition consummated prior to the date hereof; (l) all obligations of such Person
under any Swap Agreement; (m) all Limited Recourse Liabilities of such Person; (n) all obligations
of such Person to purchase securities or other property arising out of or in connection with the
sale of the same or substantially similar securities or property; and (o) any other obligation for
borrowed money or other financial accommodation which in accordance with GAAP would be shown as a
liability on the consolidated balance sheet of such Person. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor as a result of such Persons
ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not
liable therefor. For purposes of the forgoing sentence and as of the Effective Date, any other
entity when considered with respect to any Subsidiary that is a general partner of a Joint
Venture, shall include the applicable Joint Venture. The amount of the obligations of any Person
in respect of any Swap Agreement shall, at any time of determination and for all purposes under
this Agreement, be the maximum aggregate amount (giving effect to any netting agreements) that such
Person would be required to pay if such Swap Agreement were terminated at such time giving effect
to current market conditions notwithstanding any contrary treatment in accordance with GAAP.
Indemnified Taxes means Taxes other than Excluded Taxes.
Information Memorandum means the Confidential Information Memorandum dated November
2004 relating to the Borrower and the Transactions.
Interest Election Request means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.07.
Interest Payment Date means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months duration after the first day of such Interest Period, and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 8
Interest Period means with respect to any Eurodollar Borrowing, a period of one week
or one, two, three or six months commencing on a Business Day selected by the Borrower pursuant to
this Agreement or the Prior Agreement. A weekly Interest Period shall end on the day of the next
following week which corresponds to the day of the week on which such Interest Period began,
however, if such Interest Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day. A monthly Interest Period shall end on the
day which corresponds numerically to such date one, two, three or six months thereafter, as the
Borrower may elect, however: (i) if any monthly Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day and (ii) any monthly Interest
Period that commences on the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the last calendar month of such Interest Period) shall end on
the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
Issuing Bank means JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank
and successor by merger to Bank One, N.A.) in its capacity as the issuer of Letters of Credit, and
its successors or predecessors in such capacity. JPMorgan Chase Bank, N.A. may, in its
discretion, arrange for one or more Letters of Credit to be issued by its Affiliates, in which case
the term Issuing Bank shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
Joint Venture means Illinois Cement Company and TexasLehigh Cement Company, L.P.
LC Disbursement means a payment made by an Issuing Bank pursuant to a Letter of
Credit.
LC Exposure means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
Lenders means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption or Increase Commitment
Supplement, other than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term Lenders includes the Swingline
Lender.
Letter of Credit means any letter of credit issued pursuant to this Agreement and
any Existing Letter of Credit.
Leverage Ratio means, as of any date, the ratio of Consolidated Indebtedness to
Consolidated EBITDA then most recently calculated in accordance with Section 6.10.
LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 A.M., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the LIBO Rate with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such
AMENDED AND RESTATED CREDIT AGREEMENT, Page 9
Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 A.M., London time, two Business Days prior to the commencement of such Interest Period.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
Limited Recourse Liability of a Person means (i) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any
liability under any sale and leaseback transaction which is not characterized as a Capital Lease
Obligation, (iii) any liability under any Synthetic Lease entered into by such Person, (iv) any
obligation or liability arising with respect to any sale or transfer of an interest in accounts
receivable of the Borrower or any Subsidiary on a limited recourse basis, or (v) any obligation for
which such Person is liable arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not constitute a liability
on the balance sheet of such Person, but excluding from this clause (v) any lease
classified as an operating lease in accordance with GAAP.
Loans means the loans made by the Lenders to the Borrower pursuant to this Agreement
or pursuant to the Prior Agreement which are outstanding on the Effective Date.
Loan Documents means this Agreement, any notes executed pursuant hereto, the
Subsidiary Guaranty and all other documentation now or hereafter executed and/or delivered by
Borrower or any Guarantor in connection with any of the foregoing.
Material Adverse Effect means any event, development or circumstance that has had or
could reasonably be expected to have a material adverse effect on (a) the business, property,
financial condition or results of operation of the Borrower and the Subsidiaries taken as a whole;
(b) the ability of the Borrower and the Subsidiaries (taken as a whole) to perform their respective
obligations under the Loan Documents; or (c) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.
Material Indebtedness means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and the Subsidiaries in an aggregate principal or notional amount, respectively, exceeding
$2,500,000.
Material Subsidiary means, as of any date of determination, any Subsidiary whose:
(i) total assets are, at that date, equal to or greater than 15% of the Borrowers consolidated
total assets; or (ii) Consolidated EBITDA for the 12 completed months immediately prior to the date
of determination is equal to or greater than 15% of the Borrowers Consolidated EBITDA for such
period.
Maturity Date means December 16, 2009.
Moodys means Moodys Investors Service, Inc.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 10
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
New Lender has the meaning specified in Section 2.19.
New Material Subsidiary has the meaning set forth in Section 5.09.
Non-Guarantor Amount has the meaning set forth in clause (c) of Section 6.01.
Non-Guarantor Subsidiary means a Subsidiary that is not a Guarantor.
Other Taxes means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.
Participant has the meaning set forth in Section 9.04(c)(i).
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Permitted Encumbrances means:
(a) Liens created pursuant to the terms of the Loan Documents;
(b) Liens imposed by law for taxes, assessments or governmental charges or
levies that are not yet due or are being contested in compliance with Section
5.04;
(c) carriers, warehousemens, mechanics, materialmens, repairmens and
other like Liens imposed by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than 60 days or are being
contested in compliance with Section 5.04;
(d) pledges and deposits made in the ordinary course of business in
compliance with workers compensation, unemployment insurance and other social
security, retirement or similar laws or regulations;
(e) judgment liens in respect of judgments that do not constitute an Event of
Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business or of a
nature generally existing with respect to properties of a similar character, in
each case that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary; and
(g) liens arising from filing UCC financing statements regarding leases
permitted by this Agreement.
Permitted Investments means:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guarantied by, the United States of America (or by any
agency
AMENDED AND RESTATED CREDIT AGREEMENT, Page 11
thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, a credit rating of at
least A1 from S&P or at least P1 from Moodys;
(c) investments in certificates of deposit, bankers acceptances and time
deposits maturing within 180 days from the date of acquisition thereof issued or
guarantied by or placed with, and money market deposit accounts issued or offered
by, any domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined capital and
surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of
1940, (ii) are rated at least A- by S&P and A3 by Moodys and (iii) have portfolio
assets of at least $5,000,000,000;
(f) any Equity Interests, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the forgoing)
representing the noncash portion of the sales price of any assets disposed of
under the permissions of Section 6.03(c)(iv); provided that the related
disposition was consummated in accordance with the limitations in Section
6.03; and
(g) any Equity Interest, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the forgoing)
received in connection the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and suppliers, in each case in
the ordinary course of business.
Person means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Plan means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of
ERISA.
Prime Rate means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York, New
York; each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
Prior Agreement has the meaning set forth in the introduction to this Agreement.
Purchase Price has the meaning set forth in Section 6.04(h)(v).
AMENDED AND RESTATED CREDIT AGREEMENT, Page 12
Receivable Financing Amount means the aggregate amount of all loans and advances to,
receivables due from, capital contributions to or guaranties of the obligations of, a special
purpose bankruptcy remote entity; provided that for such a loan, advance, receivable, capital
contribution or guaranty (each a SPV Investments) to be included in the Receivable Financing
Amount, the following conditions must be satisfied:
(a) The SPV Investment must be made in connection with a Receivable
Securitization Financing otherwise permitted hereby;
(b) The special purpose bankruptcy remote entity must be the special purpose
entity utilized in connection with the Receivable Securitization Financing;
(c) The aggregate amount of the SPV Investments made with respect to any one
Receivable Securitization Financing may not exceed the aggregate amount of the
receivables transferred in the securitization;
(d) The SPV Investment, if a loan, advance, or receivable, may only be made
in consideration for receivables transferred in the securitization to evidence the
consideration given by the special purpose entity in return therefor;
(e) The SPV Investment, if a capital contribution, may only be made with
receivables, or as a discounted sale of receivables, to be transferred in the
securitization;
(f) If the SPV Investment is a guaranty, such guaranty shall be non-recourse
to the Borrower or the applicable Subsidiary and their respective assets except
the beneficiary of the guaranty may have recourse to the Borrowers or the
applicable Subsidiarys interests in the receivables transferred in the
securitization; and
(g) The SPV Investment must not otherwise impair the limited recourse or true
sale nature of the Receivable Securitization Financing.
Receivable Securitization Financings means a transaction or group of transactions
typically referred to as a securitization in which a Person sells, directly or indirectly through
another Person, its accounts receivable on a limited recourse basis in a transaction treated as a
legal true sale to a special purpose bankruptcy remote entity who obtains debt financing or sells
interests in such receivables to finance the purchase price.
Register has the meaning set forth in Section 9.04(b)(iv).
Related Parties means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Persons Affiliates.
Required Lenders means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing at least 51% of the sum of the total Revolving Credit Exposures and
unused Commitments at such time.
Restricted Payment means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity
AMENDED AND RESTATED CREDIT AGREEMENT, Page 13
Interest in the Borrower or any option, warrant or other
right to acquire any such Equity Interest in the Borrower.
Revolving Credit Exposure means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lenders Revolving Loans and its LC Exposure and Swingline
Exposure at such time.
Revolving Loan means a Loan made pursuant to Section 2.03 or made pursuant to
Section 2.03 of the Prior Agreement and outstanding on the Effective Date.
S&P means Standard & Poors.
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
subsidiary means, with respect to any Person (the parent) at any date, any
corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, Controlled or held, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Subsidiary means any subsidiary of the Borrower. As of the Effective Date, neither
Illinois Cement Company nor TexasLehigh Cement Company, L.P. is a Subsidiary and as a result,
nothing in this Agreement shall prohibit or otherwise restrict: (i) the creation, incurrence or
assumption by either Illinois Cement Company or TexasLehigh Cement Company, L.P. of any
Indebtedness of any kind (except to the extent that the Indebtedness of a Joint Venture may be
limited by the fact that the Indebtedness of a Subsidiary that is its general partner, if any, may
be limited hereby) or (ii) the creation, incurrence or assumption by either Illinois Cement Company
or TexasLehigh Cement Company, L.P. of any Liens on any of its properties or assets.
Subsidiary Guaranty means that certain Amended and Restated Guaranty Agreement dated
the date hereof executed by certain of the Subsidiaries, substantially in the form of Exhibit C
hereto.
Substantial Portion has the meaning set forth in Section 6.03(c).
Swap Agreement means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 14
Swingline Exposure means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender means JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank) in its capacity as lender of Swingline Loans hereunder.
Swingline Loan means a Loan made pursuant to Section 2.04.
Synthetic Lease means a lease (i) that is treated as an operating lease under GAAP
and (ii) (a) in respect of which the leased asset is treated as owned by the lessee for purposes of
the Code and/or (b) that is treated as a loan to the lessee for commercial law or insolvency law
purposes.
Taxes means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
Transactions means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof, the execution, delivery and
performance by each Guarantor of the Subsidiary Guaranty and the issuance of Letters of Credit
hereunder.
Type, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
Withdrawal Liability means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
Section 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a Revolving Loan) or by Type (e.g., a
Eurodollar Loan) or by Class and Type (e.g., a Eurodollar Revolving Loan). Borrowings
also may be classified and referred to by Class (e.g., a Revolving Borrowing) or by Type
(e.g., a Eurodollar Borrowing) or by Class and Type (e.g., a Eurodollar
Revolving Borrowing).
Section 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words include, includes and
including shall be deemed to be followed by the phrase without limitation. The word will
shall be construed to have the same meaning and effect as the word shall. Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Persons successors and assigns, (c) the words herein,
hereof and hereunder, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words asset and property shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 15
Section 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II.
The Credits
Section 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in (a) such Lenders Revolving Credit
Exposure exceeding such Lenders Commitment or (b) the total Revolving Credit Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
Section 2.02. Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans
made by the Lenders ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall
be responsible for any other Lenders failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less
than $1,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount
that is an integral multiple of $100,000 and not less than $100,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of 6 Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 16
Section 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 10:00 A.M., Dallas, Texas time, three Business Days before
the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00
A.M., Dallas, Texas time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e) may be given not later than 9:00 A.M.,
Dallas, Texas time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term Interest Period; and
(v) the location and number of the Borrowers account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one months duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lenders Loan to be made as part of the requested Borrowing.
Section 2.04. Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding $15,000,000 or (ii) the total Revolving Credit Exposures
exceeding the total Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 1:00 P.M., Dallas, Texas time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan
AMENDED AND RESTATED CREDIT AGREEMENT, Page 17
made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to an Issuing Bank) by 12:00 P.M., Dallas, Texas time, on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 11:00 A.M., Dallas, Texas time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lenders Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lenders Applicable Percentage of such Swingline Loan or Loans excluding however, any such
Swingline Loan or Loans made by the Swingline Lender after it received from any Lender a notice
that any applicable condition precedent set forth in Section 4.02 had not then been satisfied.
Each Lender acknowledges and agrees that, except as set forth in the immediately preceding
sentence, its obligation to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of
the proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
Borrower of any default in the payment thereof.
Section 2.05. Letters of Credit.
(a) General. The Borrower may request the issuance of standby and commercial Letters
of Credit for its own account, in a form reasonably acceptable to the Administrative Agent and
JPMorgan Chase Bank, N.A. and may request the amendment, renewal and extension of outstanding
Letters of Credit. Subject to the terms and conditions set forth in this Agreement and at any time
and from time to time during the Availability Period, at the Borrowers request, JPMorgan Chase
Bank, N.A. agrees to issue Letters of Credit. In the event of any inconsistency between the terms
and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by the Borrower with,
an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall
control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable
Issuing
AMENDED AND RESTATED CREDIT AGREEMENT, Page 18
Bank and the Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit
application on such Issuing Banks standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not exceed $25,000,000 and (ii) the total Revolving Credit Exposures
shall not exceed the total Commitments.
(c) Expiration Date; Collateralization of Extended Term Letters of Credit. Each
Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date that is six months
after the Maturity Date; provided however, that with respect to each Letter of Credit with an
expiry date beyond the Maturity Date, the Borrower shall pledge to the Administrative Agent cash
collateral in the amount, at the time and in the manner provided for in Section 2.05(j).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) or on the Effective Date with respect to the
Existing Letters of Credit, and without any further action on the part of an Issuing Bank or the
Lenders, the applicable Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the applicable Issuing Bank, a participation in such Letter of Credit equal to such Lenders
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the applicable
Issuing Bank, such Lenders Applicable Percentage of each LC Disbursement made by an Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any reason; provided that
a Lender shall not be obligated to pay to the Administrative Agent the Applicable Percentage of any
LC Disbursement if the Letter of Credit under which such LC Disbursement was made was issued by the
Issuing Bank after it received from any Lender a notice that any applicable condition precedent set
forth in Section 4.02 had not then been satisfied. . Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 11:00 A.M., Dallas, Texas time, on the
date that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 9:00 A.M., Dallas, Texas time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 11:00 A.M., Dallas,
Texas time, on (i) the Business Day that the Borrower receives such notice, if such notice is
received prior to 9:00 A.M., Dallas, Texas time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such notice is not
received prior to such time on the day of
AMENDED AND RESTATED CREDIT AGREEMENT, Page 19
receipt; provided that the Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 or 2.04 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the extent so financed,
the Borrowers obligation to make such payment shall be discharged and replaced by the resulting
ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such payment when due,
the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lenders Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by
it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from
the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to
the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the applicable Issuing Bank, then to such Lenders and the applicable Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to this paragraph to
reimburse an Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or
a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrowers obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrowers obligations hereunder. Neither the Administrative Agent, the Lenders nor any
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of an Issuing Bank;
provided that the foregoing shall not be construed to excuse an Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by (i) an Issuing Banks failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof or (ii) an Issuing Banks failure to pay under any Letter of Credit after the
presentation to it of drafts or other documents strictly complying with the terms and conditions of
such Letter of Credit. The parties hereto expressly agree that, in the absence of gross negligence
or willful misconduct on the part of an Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination
referred to in clause (i) of the preceding sentence. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter of Credit, an
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further
AMENDED AND RESTATED CREDIT AGREEMENT, Page 20
investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms
of such Letter of Credit.
(g) Disbursement Procedures. An Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank under such Letter of Credit shall promptly notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment, including
the amount thereof and the proposed payment date, and whether it has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse the applicable Issuing Bank and the
Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless
the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(e) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e) of this Section to reimburse an Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. JPMorgan Chase Bank, N.A. may be replaced as an
Issuing Bank hereunder at any time by written agreement among the Borrower, the Administrative
Agent, JPMorgan Chase Bank, N.A. and the successor. The Administrative Agent shall notify the
Lenders of any such replacement of JPMorgan Chase Bank, N.A. At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued for the account of JPMorgan
Chase Bank, N.A. in its capacity as the replaced Issuing Bank pursuant to Section 2.11(b). From
and after the effective date of any such replacement, (i) the successor shall have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be
issued thereafter and (ii) references herein to the term Issuing Bank shall be deemed to refer to
such successor or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Lenders (the Cash Collateral Account), an amount in cash equal to
the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that
the obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. If the Borrower is required to deposit cash collateral pursuant to Section 2.10(b)
because the Revolving Credit Exposures exceed the total Commitments, the Borrower shall deposit
cash collateral in the Cash Collateral Account in an aggregate amount equal to such excess plus any
accrued and unpaid interest thereon. If the Borrower is required to
AMENDED AND RESTATED CREDIT AGREEMENT, Page 21
pledge cash collateral pursuant to clause (c) of this Section, then on or before the date 30
days prior to the Maturity Date, the Borrower shall deposit in the Cash Collateral Account an
amount in cash equal to the aggregate LC Exposure for all Letters of Credit that have expiry dates
past the Maturity Date plus any accrued and unpaid interest thereon. The deposits made under this
paragraph shall be held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over the Cash
Collateral Account. Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the Administrative Agent and at the
Borrowers risk and expense, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in the Cash Collateral Account. Money in the Cash Collateral
Account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC
Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at
such time or, if the maturity of the Loans has been accelerated, be applied to satisfy other
obligations of the Borrower and the Subsidiaries under the Loan Documents and under the Swap
Agreements entered into with a Lender or Affiliate of a Lender. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or waived. If the Borrower
is required to provide an amount of cash collateral hereunder to secure Letters of Credit with
expiry dates beyond the Maturity Date, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after the Letter of Credit with the latest
expiry date has expired if as of such date no further Letters of Credit are outstanding and all LC
Disbursements have been reimbursed. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the fact that the Revolving Credit Exposure exceeds the total
Commitments, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after the date when the Revolving Credit Exposures no longer exceed the
total Commitments.
Section 2.06. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 11:00 A.M., Dallas, Texas time, to the account
of the Administrative Agent most recently designated by it for such purpose by notice to the
Lenders; provided that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in Dallas, Texas and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank
AMENDED AND RESTATED CREDIT AGREEMENT, Page 22
compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lenders Loan included in such Borrowing.
Section 2.07. Interest Elections.
(a) Each Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, the portions thereof to be allocated
to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of the term Interest Period.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
months duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lenders portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be
AMENDED AND RESTATED CREDIT AGREEMENT, Page 23
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto.
Section 2.08. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $5,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.10, the Revolving Credit Exposures would exceed the total
Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.
Section 2.09. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity
Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a Revolving Borrowing is made, the Borrower shall
repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lenders share thereof.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 24
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
Section 2.10. Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing, in whole or in part without premium or penalty except as provided in Section 2.15,
subject to prior notice in accordance with paragraph (c) of this Section. Each optional prepayment
of the Loans shall be in an amount that is an integral multiple of $100,000 and not less than
$1,000,000.
(b) In the event and on such occasion that the Revolving Credit Exposures exceed the total
Commitments, the Borrower shall prepay Revolving Borrowings or Swingline Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in the Cash Collateral Account pursuant to
Section 2.05(j)) in an aggregate amount equal to such excess.
(c) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 10:00
A.M., Dallas, Texas time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 10:00 A.M., Dallas, Texas time, one
Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan,
not later than 11:00 A.M., Dallas, Texas time, on the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as contemplated by Section
2.08, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in
the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section
2.12.
Section 2.11. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Rate on the daily amount of the unused
Commitment of such Lender during the Availability Period. Accrued commitment fees shall be payable
in arrears on the last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur after the date hereof.
All
AMENDED AND RESTATED CREDIT AGREEMENT, Page 25
commitment fees shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the last day). For
purposes of computing commitment fees, a Commitment of a Lender shall be deemed to be used to the
extent of the outstanding Loans and LC Exposure of such Lender (and the Swingline Exposure of such
Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lenders LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lenders Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting
fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable
to the Letters of Credit issued by such Issuing Bank during the period from and including the
Effective Date to but excluding the later of the date of termination of the Commitments and the
date on which there ceases to be any such LC Exposure, as well as each Issuing Banks standard fees
with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through and including the
last day of March, June, September and December of each year shall be payable on the third Business
Day following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Commitments terminate
and any such fees accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to an Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
Section 2.12. Interest.
(a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 26
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) or unless such calculation would result in a usurious rate, in which case interest shall be
calculated on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest error.
Section 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing.
Section 2.14. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase
AMENDED AND RESTATED CREDIT AGREEMENT, Page 27
the cost to such Lender or an Issuing Bank of participating in, issuing or maintaining any Letter
of Credit or to reduce the amount of any sum received or receivable by such Lender or an Issuing
Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such
Lender or the applicable Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lenders or such
Issuing Banks capital or on the capital of such Lenders or such Issuing Banks holding company,
if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by an Issuing Bank, to a level below
that which such Lender or applicable Issuing Bank or such Lenders or such Issuing Banks holding
company could have achieved but for such Change in Law (taking into consideration such Lenders or
such Issuing Banks policies and the policies of such Lenders or such Issuing Banks holding
company with respect to capital adequacy), then from time to time the Borrower will pay to such
Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lenders or such Issuing Banks holding company
for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lenders or such Issuing Banks
right to demand such compensation; provided that the Borrower shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lenders or such Issuing Banks 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.
Section 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(c) and is
revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks
AMENDED AND RESTATED CREDIT AGREEMENT, Page 28
in the eurodollar market. A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
Section 2.16. Taxes.
(a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and each Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or an Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.16, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.16 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees
AMENDED AND RESTATED CREDIT AGREEMENT, Page 29
to repay the amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative Agent or any Lender to
make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.14, 2.15 or 2.16, or otherwise) prior to 11:00 A.M., Dallas, Texas time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices in New York, New York, except payments to
be made directly to an Issuing Bank or the Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments received by it and
any payments received under the terms of the Subsidiary Guaranty for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in
dollars.
(b) If at any time insufficient funds are received from the Borrower by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest
and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and
fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts
of interest and fees then due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties. If at any time funds are received by the Administrative Agent from a Guarantor under the
Subsidiary Guaranty that are insufficient to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder and all amounts due under any Swap Agreement
the Borrower or a Subsidiary has entered into with a Lender or an Affiliate of a Lender, such funds
shall be applied: (i) first, towards payment of interest and fees then due, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal, unreimbursed LC Disbursements and the
amounts owing under such Swap Agreements then due, ratably among the parties entitled thereto in
accordance with the amounts thereof.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans and participations in LC Disbursements and Swingline
Loans; provided that
AMENDED AND RESTATED CREDIT AGREEMENT, Page 30
(i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in LC Disbursements
to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing
and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or an
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the
case may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or
such Issuing Bank with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the greater
of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(d) or (e), 2.06(b) or 2.17(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lenders obligations under such
Sections until all such unsatisfied obligations are fully paid.
Section 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.14 or 2.16, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender
AMENDED AND RESTATED CREDIT AGREEMENT, Page 31
accepts such assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result
in a reduction in such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Section 2.19. Increase of Revolving Commitments. By written notice sent to the
Administrative Agent (which the Administrative Agent shall promptly distribute to the Lenders), the
Borrower may request an increase of the aggregate amount of the Commitments: (i) by an aggregate
amount equal to any integral multiple of $5,000,000 but no less than $10,000,000; (ii) by an
aggregate amount up to $150,000,000; and (iii) to an amount not to exceed $500,000,000;
provided that (i) no Default shall have occurred and be continuing and (ii) the
aggregate amount of the Commitments shall not previously have been increased more than two times
pursuant to this Section 2.19. Each Lender, in its sole and absolute discretion, shall
determine whether it will increase its Commitment. If one or more of the Lenders will not be
increasing its Revolving Commitment pursuant to such request, then, with notice to the
Administrative Agent and the other Lenders, another one or more financial institutions, each as
approved by the Borrower, and the Administrative Agent (a New Lender), may commit to
provide an amount equal to the aggregate amount of the requested increase that will not be provided
by the existing Lenders (the Increase Amount); provided, that the Commitment of
each New Lender shall be at least $10,000,000 and the maximum number of New Lenders shall be five
(5). Upon receipt of notice from the Administrative Agent to the Lenders and the Borrower that the
Lenders, or sufficient Lenders and New Lenders, have agreed to commit to an aggregate amount equal
to the Increase Amount (or such lesser amount as the Borrower shall agree, which shall be at least
$5,000,000 and an integral multiple of $5,000,000 in excess thereof), then: provided that no
Default exists at such time or after giving effect to the requested increase, the Borrower, the
Administrative Agent and the Lenders willing to increase their respective Commitments and the New
Lenders (if any) shall execute and deliver an Increased Commitment Supplement (herein so called) in
the form attached hereto as Exhibit E. If all existing Lenders shall not have provided their pro
rata portion of the requested increase, then after giving effect to the requested increase the
outstanding Revolving Loans may not be held pro rata in accordance with the new Commitments. In
order to remedy the forgoing, on the effective date of the Increased Commitment Supplement, the
Lenders shall make advances among themselves (either directly or through the Administrative Agent)
so that after giving effect thereto the Revolving Loans will be held by the Lenders, pro rata in
accordance with their respective Commitments. Any advances made under this Section 2.19 by
a Lender shall be deemed to be a purchase of a corresponding amount of the Revolving Loans of the
Lender or Lenders who shall receive such advances. The Commitments of the Lenders who do not agree
to increase their Commitments can not be reduced or otherwise changed pursuant to this Section
2.19.
ARTICLE III.
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
Section 3.01. Organization; Powers. Each of the Borrower and the Subsidiaries is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has
AMENDED AND RESTATED CREDIT AGREEMENT, Page 32
all requisite corporate, limited liability company or partnership power and authority to carry
on its business as now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such qualification is
required.
Section 3.02. Authorization; Enforceability. The Transactions to be entered into by
the Borrower and each Guarantor are within such partys corporate, limited liability company or
partnership powers and have been duly authorized by all necessary corporate, company or partnership
action and, if required, stockholder, member, manager or partner action. This Agreement has been
duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law. The Subsidiary Guaranty has been duly executed and delivered by the Guarantors and
constitutes a legal, valid and binding obligation of each such Guarantor, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.
Section 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect
or are not yet required, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any of the Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of the Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the Borrower or any of the
Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of the Subsidiaries.
Section 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended
March 31, 2004, reported by independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended September 30, 2004, certified by its chief
financial officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since March 31, 2004, there has been no material adverse change in the business, assets,
results of operations, or financial condition of the Borrower and the Subsidiaries, taken as a
whole.
Section 3.05. Properties.
(a) Each of the Borrower and the Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business, free and clear of all Liens except
for (i) minor defects in title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes; (ii) as of the
Effective Date, Permitted Encumbrances and other Liens disclosed on Schedule 3.05 or otherwise
permitted by Section 6.02(d) or Section 6.02(f), and (iii) at all times after the Effective Date,
as permitted by Section 6.02.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 33
(b) Each of the Borrower and the Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property the failure to own or be licensed
to use could reasonably be expected to result in a Material Adverse Effect, and the use thereof by
the Borrower and the Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Section 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any of the Subsidiaries (i) as to which there is a reasonable expectation of an adverse
determination and that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
Section 3.07. Compliance with Laws and Agreements. Each of the Borrower and the
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
Section 3.08. Investment and Holding Company Status. Neither the Borrower nor any of
the Subsidiaries is (a) an investment company as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a holding company as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
Section 3.09. Taxes. Each of the Borrower and the Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.
Section 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more than $2,500,000 the fair
market value of the assets of such Plan,
AMENDED AND RESTATED CREDIT AGREEMENT, Page 34
and the present value of all accumulated benefit obligations of all underfunded Plans (based
on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such amounts, exceed by more
than $10,000,000 the fair market value of the assets of all such underfunded Plans.
Section 3.11. Disclosure. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Section 3.12. Subsidiaries. Schedule 3.12 contains an accurate list of all
Subsidiaries of the Borrower as of the Effective Date, setting forth their respective jurisdictions
of organization, whether such Subsidiary is a Material Subsidiary, and the percentage of their
respective capital stock or other Equity Interests owned directly by the Borrower and each other
Subsidiary. All of the issued and outstanding shares of capital stock or other Equity Interests of
such Subsidiaries have been duly authorized and issued and are fully paid and non-assessable.
There are no outstanding subscriptions, options, warrants, calls, or rights (including preemptive
rights) to acquire, and no outstanding securities or instruments convertible into, any Equity
Interests of any Subsidiary.
Section 3.13. Indebtedness. The Borrower has no Indebtedness, except, as of the
Effective Date, as reflected on Schedule 3.13 or otherwise permitted by clauses (c), (d), (f), (g),
(h), (i), (j), (k), or (l)(ii) of Section 6.01 and, at all times after the Effective Date, as
permitted by Section 6.01. As of the Effective Date, the Non-Guarantor Amount does not exceed
$15,000,000.
Section 3.14. Solvency. Immediately after the consummation of the Transactions to
occur on the Effective Date and immediately following the making of each Loan and after giving
effect to the application of the proceeds of such Loans, (a) the fair value of the assets of
Borrower and each Subsidiary, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each
such party will be greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each such party will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured; and (d) each such party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is proposed to be
conducted following the Effective Date. The term fair value means the amount at which the
applicable assets would change hands between a willing buyer and a willing seller within a
reasonable time, each having reasonable knowledge of the relevant facts, neither being under any
compulsion to act, with equity to both and present fair saleable value means the amount that may
be realized if the applicable companys aggregate assets are sold with reasonable promptness in an
arms length transaction under present conditions for the sale of a comparable business
enterprises.
Section 3.15. Margin Securities. Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulations U or X of the
Board of Governors of the Federal Reserve System), and, except for the repurchases of the
Borrowers capital stock in accordance with the limitations in Section 6.06, no part of the
proceeds of any Loan will be used to
AMENDED AND RESTATED CREDIT AGREEMENT, Page 35
purchase or carry any margin stock or to extend credit to others for the purpose of purchasing
or carrying margin stock.
ARTICLE IV.
Conditions
Section 4.01. Effective Date. The effectiveness of this Agreement to amend and
restate the Prior Agreement and the obligations of the Lenders to make Loans and of JPMorgan Chase
Bank, N.A. to issue Letters of Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of counsel for the Borrower and
the Guarantors, substantially in the form of Exhibit B, and covering such other matters relating to
the Borrower, the Guarantors, this Agreement or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received a fully executed copy of the Subsidiary
Guaranty executed by each Subsidiary party thereto.
(d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower and the Guarantors, the authorization of the Transactions and any
other legal matters relating to the Borrower, the Guarantors, this Agreement or the Transactions,
all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(f) The Administrative Agent shall have received all fees and other amounts due and payable by
Borrower on or prior to the Effective Date hereunder or under the Fee Letter between Borrower and
Administrative Agent dated November 2, 2004, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received all unpaid interest and fees accrued under
the Prior Agreement through the Effective Date and all other fees, expenses and other charges
outstanding thereunder (including all amounts due under Section 2.15 thereof arising as a result of
the termination of all interest periods thereunder on the Effective Date.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the effectiveness of this
Agreement to amend and restate the Prior Agreement and the obligations of the Lenders to make Loans
and of JPMorgan Chase Bank, N.A. to issue Letters of Credit hereunder shall not become effective
unless
AMENDED AND RESTATED CREDIT AGREEMENT, Page 36
each of the foregoing conditions is satisfied (as evidenced by the Administrative Agents notice pursuant to the immediately preceding sentence) or waived pursuant
to Section 9.02, at or prior to 3:00 P.M., Dallas, Texas time, on December 31, 2004 (and, in the event such conditions are not so satisfied or waived, the Commitments
shall terminate at such time).
Section 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of an Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth in this Agreement shall be
true and correct in all material respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the
extent any such representation or warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall be true and correct in all material respects on and as
of such earlier date.
(b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have
occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.
Section 4.03. Effective Date Adjustments. If as a result of the amendment to the
amount of the Commitments under Prior Agreement contemplated hereby, any outstanding Revolving
Loans are not be held pro rata in accordance with the new Commitments as of the Effective Date,
then on the Effective Date, the Lenders shall make advances among themselves (either directly or
through the Administrative Agent) so that after giving effect thereto the Revolving Loans will be
held by the Lenders, pro rata in accordance with their respective Commitments. Any advances made
under this Section 4.03 by a Lender shall be deemed to be a purchase of a corresponding amount of
the Revolving Loans of the Lender or Lenders who shall receive such advances.
ARTICLE V.
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
Section 5.01. Financial Statements; Ratings Change and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders equity and cash
flows as of the end of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by independent public accountants of
recognized national standing (without a going concern or like qualification or exception and
without any qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 37
respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, its consolidated balance sheet and related statements of operations,
stockholders equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 5.09, 6.06, 6.09 and 6.10 and (iii) stating whether any
change in GAAP or in the application thereof which has affected or will affect the Borrowers
financial statements has occurred since the date of the most recent audited financial statements of
Borrower delivered to the Administrative Agent hereunder and specifying the effect of such change
on the financial statements accompanying such certificate;
(d) As soon as available, but in any event within 15 days before the beginning of each fiscal
year of the Borrower, a copy of the plan and forecast (including a projected consolidated balance
sheet, income statement and funds flow statement) of the Borrower for the forthcoming fiscal year;
(e) concurrently with any delivery of financial statements under clause (a) or (b) above,
copies of all registration statements, all annual, quarterly or other regular reports and all proxy
statements filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said Commission, or
distributed by the Borrower to its shareholders generally, which have been filed or distributed
since the date of the last delivery under this clause (e) or, with respect to the first such
delivery under this clause (e), since the Effective Date;
(f) promptly upon receipt thereof, a copy of any management letter submitted to the Borrower
or any Subsidiary by independent certified public accountants with respect to the financial
statements required to be delivered under clause (a) above; and
(g) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Section 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any Subsidiary that is reasonably
expected to be determined adversely and, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 38
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.
Section 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of the Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section 6.03. The Borrower
will, and will cause each of the Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect all the rights, licenses, permits, privileges and
franchises used in the conduct of its business, except for such rights, licenses, permits,
privileges and franchises the failure to preserve, renew or keep effective could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.04. Payment of Obligations. The Borrower will, and will cause each of the
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in
a Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.
Section 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of the Subsidiaries to, (a) keep and maintain all its property in good working order and
condition, ordinary wear and tear excepted, except where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in the same or similar
locations.
Section 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of the Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and
activities to the extent necessary to permit financial statements to be prepared in conformity with
GAAP and otherwise in all material respects with all requirements of law. The Borrower will, and
will cause each of the Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs, finances and condition
with its officers and independent accountants, all at such reasonable times and as often as
reasonably requested.
Section 5.07. Compliance with Laws and Agreements. The Borrower will, and will cause
each of the Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. The Borrower will, and will cause each Subsidiary to, comply with all agreements,
contracts, and instruments binding on it or affecting its properties or business, except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect.
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 39
Section 5.08. Use of Proceeds. The proceeds of the Loans will be used for general
corporate purposes of the Borrower and the Subsidiaries, including to refinance debt and make
acquisitions. No part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board, including
Regulations G, U and X. Letters of Credit will be issued to support transactions entered into by
the Borrower and the Subsidiaries in their ordinary course of business.
Section 5.09. Joinder of Subsidiaries to Subsidiary Guaranty. Within 60 days after
the end of each fiscal quarter, the Borrower shall make the calculations to determine whether: (i)
any Subsidiary who is not a party to the Subsidiary Guaranty is a Material Subsidiary as of such
fiscal quarter end; and (ii) if the Subsidiaries who are party to the Subsidiary Guaranty met the
Aggregation Test as of such fiscal quarter end. The Aggregation Test shall be deemed to
be met as of a fiscal quarter end if all the following conditions are satisfied as of such fiscal
quarter end: (i) the combined total assets of the Subsidiaries who are party to the Subsidiary
Guaranty as of such fiscal quarter end are equal to or greater than 85% of the Borrowers
consolidated total assets as of such fiscal quarter end; and (ii) the total combined Consolidated
EBITDA of the Subsidiaries who are party to the Subsidiary Guaranty for the 12 completed months
ending as of such fiscal quarter end is equal to or greater than 85% of the Borrowers Consolidated
EBITDA for such period. If any Subsidiary who is not a party to the Subsidiary Guaranty is a
Material Subsidiary as of such fiscal quarter end, then within 60 days after the end of such fiscal
quarter the Borrower shall cause each such Subsidiary (any such Material Subsidiary, herein a
New Material Subsidiary) to execute and deliver to the Administrative Agent a Subsidiary
Joinder Agreement in the form attached to the Subsidiary Guaranty as Exhibit A joining it as a
guarantor under the Subsidiary Guaranty and shall execute and/or deliver such other documentation
as the Administrative Agent may reasonably request to cause such New Material Subsidiary to
evidence its authority to enter into or otherwise implement the guaranty of the repayment of the
obligations contemplated by the Subsidiary Guaranty and this Agreement. If as of the end of any
fiscal quarter, the Aggregation Test is not satisfied, then within 60 days after the end of such
fiscal quarter the Borrower shall cause such number of Subsidiaries to join into the Subsidiary
Guaranty (as if they were each a New Material Subsidiary as provided in the foregoing sentence) so
that after giving effect thereto, the Aggregation Test is satisfied.
Section 5.10. Further Assurances. The Borrower will execute, and will cause each
Guarantor to execute, any and all further documents, agreements and instruments, and take all such
further actions, which may be required under any applicable law, or which either the Administrative
Agent or the Required Lenders may reasonably request, to effectuate the Transactions all at the
expense of the Borrower.
Section 5.11. Receivables Securitization. The Borrower shall deliver to the
Administrative Agent copies of any agreements or other documents relating to any Receivables
Securitization Financing entered into by the Borrower or any Subsidiary promptly following the
execution thereof.
ARTICLE VI.
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
Section 6.01. Indebtedness. The Borrower will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 40
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness existing on the Effective Date and set forth in Schedule 3.13 and extensions,
renewals and replacements of any such Indebtedness that do not increase the outstanding principal
amount thereof;
(c) Indebtedness of any Subsidiary to Borrower, of Borrower to any Subsidiary or of any
Subsidiary to any other Subsidiary; provided that: (i) such Indebtedness must be incurred in the
ordinary course of business or incurred to finance general corporate needs; and (ii) the sum of the
aggregate outstanding amount of all of the obligations of Non-Guarantor Subsidiaries guarantied by
the Borrower or any Guarantor pursuant to clause (f) below plus the aggregate outstanding principal
amount of all of the loans and advances made to Non-Guarantor Subsidiaries by Borrower or any
Guarantor plus the aggregate amount of all of the investments made after the Effective Date in
Non-Guarantor Subsidiaries by the Borrower or any Guarantor excluding all Receivable Financing
Amounts (such sum the Non-Guarantor Amount) shall not at any time exceed an aggregate
amount equal to $15,000,000;
(d) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien
on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount thereof;
(e) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is
not created in contemplation of or in connection with such Person becoming a Subsidiary;
(f) Guaranties by the Borrower of Indebtedness or other obligations of any Subsidiary and by
any Subsidiary of Indebtedness or other obligations of the Borrower or any other Subsidiary;
provided that the Non-Guarantor Amount shall not exceed $15,000,000;
(g) Indebtedness outstanding under Receivable Securitization Financings provided that the
aggregate purchase commitment under all of the Borrowers and the Subsidiaries Receivable
Securitization Financings shall not exceed $75,000,000;
(h) Indebtedness arising in connection with Swap Agreements permitted by Section 6.05;
(i) Indebtedness for borrowed money owed by Subsidiaries (with the phrase Indebtedness for
borrowed money not including any Indebtedness arising under Guaranties), provided that: (i) the
aggregate principal amount of all the Indebtedness for borrowed money owed by the Subsidiaries
(including that permitted under other clauses of this Section 6.01, but excluding the Indebtedness
permitted under clauses (a), (c), (g), (l)(i) and (l)(ii) of this Section 6.01) does not exceed at
any time an amount equal to 15% of the Consolidated Tangible Net Worth of the Borrower and (ii) the
Non-Guarantor Amount shall not exceed $15,000,000;
(j) Indebtedness incurred in the ordinary course of business with respect to surety and appeal
bonds, performance and return-of-money bonds, and other similar obligations;
(k) Indebtedness constituting obligations to reimburse workers compensation insurance
companies for claims paid by such companies on Borrowers or a Subsidiaries behalf in accordance
with the policies issued to Borrower and the Subsidiaries; and
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 41
(l) The following Indebtedness, in addition to the other Indebtedness permitted by this
Section, as long as on the date of the incurrence of any of the Indebtedness described below in
this clause: (i) no Default exists or would result therefrom; (ii) with respect to clauses (iii)
and (iv) below only, the limitations on Subsidiary Indebtedness under clause (i) of this Section
6.01 are not exceeded; and (iii) the Borrower shall have provided to the Administrative Agent and
each Lender prior to or on the date of the incurrence thereof, a certificate of a Financial Officer
of the Borrower: (A) certifying that no Default exists or could reasonably be expected to occur as
a result of the proposed Indebtedness, and (B) demonstrating that as of the date of any such
incurrence, the Borrower is and, on a pro forma basis after giving effect to such Indebtedness,
will be, in compliance with the financial covenants set forth in Sections 6.09 and 6.10 of this
Agreement:
(i) Guaranties by the Borrower and the Guarantors of the Indebtedness of Illinois Cement
Company and Texas-Lehigh Cement Company, L.P.;
(ii) Indebtedness of a Subsidiary who is a general partner of a Joint Venture arising for
Indebtedness incurred by the Joint Venture as a result of the fact that the Subsidiary is the
general partner of the Joint Venture;
(iii) Indebtedness for borrowed money incurred by the Borrower and the guaranty thereof by the
Guarantors; and
(iv) Indebtedness of the type described in clause (k) of the definition of the term
Indebtedness of Borrower or any Subsidiary.
Section 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
Effective Date and set forth in Schedule 3.05; provided that (i) such Lien shall not apply
to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) such Liens secure Indebtedness permitted by clause (d) of
Section 6.01, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or
improving such fixed or capital assets and (iv) such Liens shall not apply to any other property or
assets of the Borrower or any Subsidiary;
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 42
(e) Liens arising out of pledges or deposits made in the ordinary course of business of the
Borrower and the Subsidiaries to secure the performance of bids, tenders, insurance or other
contracts (other than for the repayment of borrowed money) or to secure statutory obligations,
surety or appeal bonds or indemnity, performance or other similar bonds so long as such amounts
secured by such Liens shall not exceed at any time an aggregate amount equal to $15,000,000;
(f) Liens granted in connection with Receivables Securitization Financings permitted by
Section 6.01(g) on the accounts receivable sold or transferred pursuant thereto (together with all
collections and other proceeds thereof, any collateral securing the payment thereof and all rights,
interest and claims of the Borrower or any Subsidiary in or under the agreements or instruments
evidencing, supporting or securing payment thereof), all right, title and interest in and to the
lockboxes and other collection accounts in which proceeds of such accounts receivable are
deposited, the rights under the documents executed in connection with such Receivables
Securitization Financings and in the Equity Interests issued by any special purpose entity
organized to purchase the receivables thereunder; and
(g) Liens, in addition to those permitted by the foregoing clauses of this Section, provided
that the aggregate market value of the property and assets encumbered by all Liens incurred under
the permissions of this clause (g) shall not exceed $15,000,000 and the aggregate principal amount
of the Indebtedness secured by all such Liens does not exceed $15,000,000.
Section 6.03. Fundamental Changes; Sale of Assets.
(a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all of
its assets, or all or substantially all of the Equity Interest of any of the Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing: (i) any Person may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (ii) any Person may merge into or consolidate with any Subsidiary or any
Subsidiary may merge into or consolidate with any Person, in each case in a transaction in which
the surviving entity is a Subsidiary, (iii) Borrower or any Subsidiary may sell or transfer Equity
Interests of a Subsidiary to another Subsidiary or Borrower, (iv) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (v)
any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; and (vi) the Borrower and the Subsidiaries may dispose of property
and assets, including Equity Interests of a Subsidiary, either directly or through a merger or
consolidation, in accordance with the permissions set forth in clause (c) of this Section;
provided that any merger or consolidation permitted under this clause (a) involving a
Person that is not a wholly owned Subsidiary immediately prior to such merger or consolidation
shall not be permitted unless also permitted by Section 6.04 to the extent such Section otherwise
restricts such transaction.
(b) The Borrower will not, and will not permit any of the Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and the
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
(c) The Borrower will not, and will not permit any of the Subsidiaries to, sell, transfer,
lease or otherwise dispose of any of its property or assets, including any Equity Interests owned
by it, except:
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 43
(i) sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the
ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and
other dispositions to the Borrower or a Subsidiary; provided that any such sales, transfers, leases
or other dispositions involving a Subsidiary shall be made in compliance with Section 6.07;
(iii) the sale of accounts receivable on a limited recourse basis pursuant to a Receivable
Securitization Financing permitted by Section 6.01(g); and
(iv) in addition to the dispositions permitted by (i) through (iii) immediately above, leases,
sales or other dispositions of property, either directly or through a merger or consolidation,
that, together with all other property of the Borrower and the Subsidiaries previously disposed of
under the permissions of this clause (iv) during the twelve-month period ending with the month in
which any such other disposition occurs (the Calculation Period), do not constitute a
Substantial Portion of the property of the Borrower and the Subsidiaries;
provided that all sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by clause (ii) above) shall be made for fair value and, if the sale, transfer,
lease or disposition in question together with any related series of sales, transfers, leases or
other dispositions, involves assets that have a fair value of more than $10,000,000, then at least
75% of the consideration therefor shall be in cash. The term Substantial Portion means,
on any date, property with a book value that: (A) represents more than 15% of the consolidated
assets of the Borrower and the Subsidiaries as would be shown in the consolidated financial
statements of the Borrower as of the last day of the last month before the start of the applicable
Calculation Period or (B) is responsible for more than 15% of the consolidated sales or 15% of the
Consolidated EBITDA of the Borrower for the last 12 months as reflected or calculated from in the
financial statements referred to in clause (A) above.
Section 6.04. Investments, Loans, Advances, Guaranties and Acquisitions. The Borrower
will not, and will not permit any of the Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger)
any Equity Interests, evidences of indebtedness or other securities (including any option, warrant
or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances
to, Guaranty any obligations of, or make or permit to exist any investment or any other ownership
interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit, except:
(a) acquisitions of Equity Interests in another Person not constituting Acquisitions so long
as (i) no Default exists or would result therefrom, (ii) the total Purchase Price paid for all such
acquisitions during the completed 12 month period immediately prior to the date of the acquisition
in question plus the Purchase Price for the acquisition in question does not exceed $10,000,000 and
(iii) the Non-Guarantor Amount does at no time exceed $10,000,000;
(b) Permitted Investments;
(c) investments by the Borrower or any Subsidiary existing on the date hereof and identified
on Schedule 6.04;
(d) Equity Interests in Subsidiaries owned as of the Effective Date or in Subsidiaries formed
or created by Borrower or a Subsidiary after the Effective Date; provided that the Non-Guarantor
Amount shall at no time exceed $10,000,000;
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 44
(e) loans or advances and other evidence of Indebtedness including any Receivable Financing
Amount and any promissory note evidencing such amount made by the Borrower to any Subsidiary, by
any Subsidiary to the Borrower or by any Subsidiary to any other Subsidiary, in each case to the
extent permitted by Section 6.01(c);
(f) loans and advances to directors, officers, consultants or employees as payroll advances or
for business expenses incurred in the ordinary course of business or for other purposes so long as
the aggregate principal amount of the loans and advances made for such other purposes does not
exceed $1,000,000 at any one time outstanding;
(g) Guaranties constituting Indebtedness permitted by Section 6.01;
(h) Acquisitions so long as:
(i) no Default exists or would result therefrom;
(ii) the target company is involved in a similar type of business activities as the Borrower
or the Subsidiary;
(iii) Borrower shall have: (A) completed customary due diligence on the acquisition target,
including due diligence as to compliance with all laws, including without limitation Environmental
Laws, and provided the Administrative Agent, if requested by the Administrative Agent, reasonable
evidence thereof, and (B) provided the Administrative Agent and each Lender, if requested by the
Administrative Agent, with copies of the financial statements (which to the extent available, shall
be audited financial statements) of the acquisition target for the most recent twelve (12) month
period prior to the closing of the Acquisition and the interim financial statements of the
acquisition target, each containing at a minimum a balance sheet, statement of income, and a
statement of cash flow;
(iv) Such Acquisition has been: (i) in the event a corporation or its assets is the
acquisition target, either (x) approved by the Board of Directors of the corporation which is the
acquisition target, or (y) recommended by such Board of Directors to the shareholders of such
acquisition target, (ii) in the event a partnership is the acquisition target, approved by a
majority (by percentage of voting power) of the partners of the acquisition target, (iii) in the
event an organization or entity other than a corporation or partnership is the acquisition target,
approved by a majority (by percentage of voting power) of the governing body, if any, or by a
majority (by percentage of ownership interest) of the owners of the acquisition target or (iv) in
the event the corporation, partnership or other organization or entity which is the acquisition
target is in bankruptcy, approved by the bankruptcy court or another court of competent
jurisdiction;
(v) the total Purchase Price (as defined below) paid or to be paid for the proposed
Acquisition in question does not exceed a dollar amount equal to 30% of the Borrowers Consolidated
Tangible Net Worth, determined as of the date of each acquisition based on the most recent
financial statements then available (the term Purchase Price means, as of any date of
determination and with respect to a proposed Acquisition or acquisition of other Equity Interests,
the purchase price to be paid for the target, its assets or such Equity Interests, including all
cash consideration paid (whether classified as purchase price, noncompete or consulting payments or
otherwise), the value of all other assets to be transferred by the purchaser in connection with
such acquisition to the seller (including any stock issued to the seller) all valued in accordance
with the applicable purchase agreement and the outstanding principal amount of all Indebtedness of
the target or the seller assumed or acquired in connection with such acquisition);
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 45
(vi) Borrower shall have provided to the Administrative Agent and each Lender prior to or on
the date that the proposed Acquisition is to be consummated, among other documents relating to the
Acquisition in question reasonably requested by the Administrative Agent, a certificate of a
Financial Officer: (A) certifying that no Default exists or could reasonably be expected to occur
as a result of the proposed Acquisition, and (B) demonstrating compliance with the criteria set
forth in the next clause and that as of the date of any such Acquisition, the Borrower is and, on a
pro forma basis after giving effect to the Acquisition and the incurrence or assumption of any
Indebtedness in connection therewith will be, in compliance with the financial covenants set forth
in Sections 6.09 and 6.10 of this Agreement; and
(vii) After giving proforma effect to any Indebtedness incurred or acquired in connection with
the Acquisition and any Consolidated EBITDA of the target to be acquired or whose assets are to be
acquired (to the extent that such Consolidated EBITDA can be established from audited financial
statements delivered to the Administrative Agent and the Lenders), Borrower shall have a Leverage
Ratio of no more than 2.25 to 1.00 calculated in the same manner as in Section 6.10 but on a pro
forma basis as set forth in this clause for the most recently ended fiscal quarter of Borrower
prior to the date of the proposed Acquisition; and
(i) To the extent not otherwise permitted by the foregoing clause (h), the acquisitions of all
of the Equity Interest in Illinois Cement Company and Texas-Lehigh Cement Company, L.P. so long as:
(i) no Default exists or would result therefrom;
(ii) Borrower shall have provided the Administrative Agent and each Lender copies of the
financial statements (which to the extent available, shall be audited financial statements) of the
acquisition target for the most recent twelve (12) month period prior to the closing of the
Acquisition and the interim financial statements of the acquisition target, each containing at a
minimum a balance sheet, statement of income, and a statement of cash flow;
(iii) Borrower shall have provided to the Administrative Agent and each Lender prior to or on
the date that the proposed Acquisition is to be consummated, among other documents relating to the
Acquisition in question reasonably requested by the Administrative Agent, a certificate of a
Financial Officer of the Borrower (A) certifying that no Default exists or could reasonably be
expected to occur as a result of the proposed Acquisition, and (B) demonstrating compliance with
the criteria set forth in the next clause and that as of the date of any such Acquisition and
immediately following such Acquisition, the Borrower is and, on a pro forma basis after giving
effect to the Acquisition and the incurrence or assumption of any Indebtedness in connection
therewith will be, in compliance with the financial covenants set forth in Sections 6.09 and 6.10
of this Agreement;
(iv) after giving proforma effect to any Indebtedness incurred or acquired in connection with
the Acquisition and any Consolidated EBITDA of the target to be acquired (to the extent that such
Consolidated EBITDA can be established from audited financial statements delivered to the
Administrative Agent and the Lenders and only to the extent such Consolidated EBITDA is not already
included in the Borrowers consolidated financial statements), Borrower shall have a Leverage Ratio
of no more than 2.25 to 1.00 calculated in the same manner as in Section 6.10 but on a pro forma
basis as set forth in this clause for the most recently ended fiscal quarter of Borrower prior to
the date of the proposed Acquisition.
Section 6.05. Swap Agreements. The Borrower will not, and will not permit any of the
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 46
Equity Interests of the Borrower or any of the Subsidiaries), and (b) Swap Agreements entered
into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates,
from one floating rate to another floating rate or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary.
Section 6.06. Restricted Payments; Prepayments of Indebtedness.
(a) The Borrower will not, and will not permit any of the Subsidiaries to, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) the Borrower may declare and pay dividends or make other distributions with respect to its
capital stock payable solely in additional shares of its capital stock or warrants, options or
other rights to acquire capital stock;
(ii) Subsidiaries may declare and pay dividends or make other distributions ratably with
respect to their capital stock;
(iii) the Borrower and the Subsidiaries may make Restricted Payments pursuant to and in
accordance with (or otherwise under) stock option plans or other benefit plans for directors,
officers, consultants or employees of the Borrower and the Subsidiaries;
(iv) the purchase or redemption by the Borrower of capital stock of the Borrower out of the
net cash proceeds of a substantially concurrent issue or sale of capital stock by the Borrower;
(v) Borrower may declare and make a Restricted Payment on any date if on the date of the
declaration thereof, on the date of the payment thereof and immediately after giving effect
thereto: (A) no Default exists or would result therefrom; and (B) neither the Borrower nor any
Subsidiary has any Indebtedness (other than Indebtedness relating to letters of credit and
Indebtedness of the type described in clauses (c), (d), (f), (i), (j) and (k) of Section 6.01)
outstanding;
(vi) the Borrower may declare and pay cash dividends in an aggregate amount of up to
$50,000,000 each fiscal year if no Default exists or would result therefrom;
(vii) In any fiscal quarter of any fiscal year, the Borrower may declare and make other
Restricted Payments not otherwise permitted by this Section as long as: (A) no Default exists or
would result therefrom as of the date of the declaration and payment thereof and (B) the Borrower
shall have a Leverage Ratio of no more than 2.00 to 1.00 as calculated: (i) on a pro forma basis;
(ii) after giving effect to any Indebtedness incurred in connection with the proposed Restricted
Payment (including any Indebtedness incurred under this Agreement) and (iii) for the most recently
ended fiscal quarter of the Borrower prior to the date of the proposed Restricted Payment; provided
that if the Borrower shall have a Leverage Ratio of more than 2.00 to 1.00 as so calculated, then
the aggregate amount of all such Restricted Payments made during a fiscal quarter under the
permissions of this clause (vii) shall not exceed the total of 50% of the Borrowers Consolidated
Net Income for the immediately preceding fiscal year minus all Restricted Payments
previously made under the permissions of clause (vi) above and this clause (vii) in the current
fiscal year in which such proposed Restricted Payment is to be paid.
(b) If a Default exists, the Borrower will not, nor will it permit any Subsidiary to, make or
agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of or interest on any Indebtedness of
Borrower or any Subsidiary, or any payment or other distribution (whether in cash, securities or
other property),
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 47
including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Indebtedness of Borrower or any
Subsidiary, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest, principal or other payments as and when due in
respect of any Indebtedness;
(iii) refinancing of Indebtedness to the extent permitted by Section 6.01; and
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness.
Section 6.07. Transactions with Affiliates. The Borrower will not, and will not
permit any of the Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arms-length basis from unrelated third parties, (b) transactions between or among
the Borrower and the Guarantors not involving any other Affiliate, (c) any Restricted Payment
permitted by Section 6.06, (d) Indebtedness permitted by clauses (c), (f) and (l)(i) of Section
6.01, (e) Acquisitions permitted by Section 6.04(i) provided that such Acquisitions are on terms
and conditions not less favorable to the Borrower and the Subsidiaries than could be obtained on an
arms-length basis from unrelated third parties and (f) transactions between or among Borrower and
its Affiliates in connection with Receivable Securitization Financings permitted by and consummated
in accordance with Section 6.01(g).
Section 6.08. Restrictive Agreements. The Borrower will not, and will not permit any
of the Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guaranty Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of the assets of, or an Equity Interest in, a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by (1) any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness or (2) Liens permitted by Section 6.02 if such restrictions or conditions apply
only to the property or assets that are the subject of such Liens, (v) clause (a) of the foregoing
shall not apply to customary provisions in leases and other contracts restricting the assignment
thereof, (vi) clause (b) of the foregoing shall not apply to customary provisions contained in
agreements entered into in connection with Receivables Securitization Financings permitted by
Section 6.01(g) that impose restrictions on the ability of the special purpose entity party thereto
to declare, pay or set aside funds for the making of any distribution in respect of the Equity
Interests issued by such entity or to make or repay loans or advances to or guaranty indebtedness
of the Borrower or any other Subsidiary, and (vii) the foregoing shall not apply to restrictions
and conditions imposed by the documentation executed in connection with a financing permitted by
clauses (iii) of Section 6.01(l) as long as such restrictions and conditions are no more onerous to
the Borrower and the Subsidiaries, and no
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 48
more beneficial to the parties entitled to the protections thereof, than the restrictions and
conditions hereunder.
Section 6.09. Interest Coverage Ratio. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters beginning with the fiscal quarter ended
September 30, 2004, of (i) Consolidated EBIT for the then most-recently ended four fiscal quarters
to (ii) its Consolidated Interest Expense for such four fiscal quarters to be less than 3.00 to
1.00.
Section 6.10. Leverage Ratio. The Borrower will not permit the ratio, determined as
of the end of each of its fiscal quarters beginning with the fiscal quarter ended September 30,
2004, of (i) its Consolidated Indebtedness as of such fiscal quarter end to (ii) its Consolidated
EBITDA for the then most-recently ended four fiscal quarters to be greater than 2.50 to 1.00.
Section 6.11. Sale and Lease-Back Transactions. The Borrower will not, and will not
permit any Subsidiary to, enter into any arrangement, directly or indirectly, whereby it shall sell
or transfer any property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property sold or transferred, except for
any such sale of any fixed or capital assets that is made for cash consideration in an amount not
less than the cost of such fixed or capital asset and is consummated within 90 days after the
Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset.
ARTICLE VII.
Events of Default
If any of the following events (Events of Default) shall occur:
(a) The Borrower shall fail to pay any principal of any Loan when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise. The Borrower shall fail to pay any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, and such failure shall continue
unremedied for one Business Day;
(b) The Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of five Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any amendment or modification hereof or
waiver hereunder, or in any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Sections 5.01(a), (b) or (c), 5.02, 5.03 (with respect to the Borrowers existence) or
5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article),
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 49
and such failure shall continue unremedied for a period of 15 days after written notice
thereof from the Administrative Agent to the Borrower (which notice will be given at the request of
any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable (after expiration of any applicable grace period);
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of
$2,500,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 60 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) the Subsidiary Guaranty shall for any reason cease to be in full force and effect and
valid, binding and enforceable in accordance with its terms after its date of execution, or the
Borrower or any Material Subsidiary shall so state in writing;
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 50
then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without presentment,
demand, protest notice of intent to accelerate, notice of acceleration or other notice of any kind,
all of which are hereby waived by the Borrower.
ARTICLE VIII.
The Administrative Agent
Each of the Lenders and each Issuing Bank hereby irrevocably appoints (and continues the
appointment under the terms of the Prior Agreement) the Administrative Agent as its (and for
purposes of the Subsidiary Guaranty, its Affiliates) agent and authorizes the Administrative Agent
to take such actions on its behalf and its Affiliates behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof and of the Subsidiary Guaranty, together
with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 51
document delivered hereunder or in connection herewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument
or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the approval of the Borrower, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative
Agent. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agents
resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while it was acting
as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder. By
accepting the benefits of the Subsidiary Guaranty, each Affiliate of the Lenders who is owed any
obligations guarantied pursuant to the terms thereof agrees to be bound by the Loan Documents as if
it were a Lender.
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 52
Bank of America, N.A. and PNC Bank, N.A. have been designated as cosyndication agents
hereunder and Wells Fargo Bank, N.A. and SunTrust Bank have been designated as co-documentation
agents hereunder. No such Lender is an agent for the Lenders and no such Lender shall have any
obligation hereunder, in each case, other than those existing in its capacity as a Lender. Without
limiting the foregoing, no such Lender shall have or be deemed to have any fiduciary relationship
with or duty to any Lender.
ARTICLE IX.
Miscellaneous
Section 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at 3811 Turtle Creek Blvd., Suite 1100, Dallas, Texas, 75219,
Attention of Arthur R. Zunker, Jr., (Telecopy No. 214-432-2110); and
(ii) if to the Administrative Agent, JPMorgan Chase Bank, N.A. as an Issuing Bank or the
Swingline Lender, to JPMorgan Chase Bank, N.A. 2200 Ross Avenue, 3rd Floor, Dallas,
Texas, 75201, Attention of David L. Howard, (Telecopy No. 214/9652044), with a copy to JPMorgan
Chase Bank, N.A., 1111 Fannin Street, 10th Floor, Houston, TX 77002; Attention:
Bernie Gonzales, Telephone 713/750-3755; Telecopy No. 713/7502823; and
(iii) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications. Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt.
Section 9.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks
and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or consent to any departure by
the Borrower therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 53
construed as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except:
(x) pursuant to an Increased Commitment Supplement executed in accordance with Section 2.19
which only needs to be signed by the Borrower, the Administrative Agent and the Lenders increasing
or providing new Commitments thereunder if the Increased Commitment Supplement does not increase
the aggregate amount of the Commitments to an amount in excess of $500,000,000 and (y) in the case
of this Agreement and any circumstance other than as described in clause (x), pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by
the parties thereto, in each case with the consent of the Required Lenders; provided that
no such agreement shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv) change Section
2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of this Section or the
definition of Required Lenders or any other provision hereof specifying the number or percentage
of Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender, or (vi) release any
Guarantor from its obligations under the Subsidiary Guaranty except in connection with a
disposition of such Subsidiary otherwise permitted hereby (in which case the Administrative Agent
shall be authorized to release the applicable Guarantor without the consent or approval of any
Lender); provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, an Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, the applicable Issuing
Bank or the Swingline Lender, as the case may be. The Loan Documents may be amended or otherwise
modified without the consent or agreement of any Affiliate of any Lender.
Section 9.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation, execution, delivery and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by each Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, each Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) SUBJECT TO CLAUSE (d) BELOW, THE BORROWER SHALL INDEMNIFY THE ADMINISTRATIVE AGENT, EACH
ISSUING BANK AND EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH
PERSON
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 54
BEING CALLED AN INDEMNITEE) AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND
ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE FEES, CHARGES AND
DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE
ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF THE PRIOR
AGREEMENT, THIS AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED THEREBY OR HEREBY, THE
PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREBY OR THE
CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (II) ANY
LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY AN ISSUING
BANK TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN
CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (III)
ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR
OPERATED BY THE BORROWER OR ANY OF THE SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY
WAY TO THE BORROWER OR ANY OF THE SUBSIDIARIES, OR (IV) ANY ACTUAL OR PROSPECTIVE CLAIM,
LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO;
PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT
THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES RESULTED FROM THE GROSS
NEGLIGENCE, UNLAWFUL CONDUCT OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. IT IS THE EXPRESSED INTENT
OF THE PARTIES HERETO THAT THE INDEMNITY IN THIS CLAUSE (b) SHALL, AS TO ANY INDEMNITEE, BE
AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE
DETERMINED TO HAVE RESULTED FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNITEE.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, an Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the applicable Issuing
Bank or the Swingline Lender, as the case may be, such Lenders Applicable Percentage (determined
as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, and each Indemnitee shall not assert, and hereby waives,
any claim against Borrower or any Guarantor, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written demand therefor
and may be funded as a Swingline Loan or Revolving Loan.
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 55
Section 9.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of JPMorgan Chase Bank, N.A. that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer
its rights or obligations hereunder except in accordance with this Section or in accordance with
Section 2.18. Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of JPMorgan Chase Bank, N.A. that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, each Issuing Bank and
the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has
occurred and is continuing, any other assignee; and
(B) the Administrative Agent, provided that no consent of the Administrative Agent
shall be required for an assignment to a Lender, an Affiliate of a Lender, or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lenders Commitment or Loans, the amount
of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such consent of the Borrower shall
be required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lenders rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term Approved Fund has the following
meaning:
AMENDED AND RESTATED CREDIT
AGREEMENT, Page 56
Approved Fund means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is administered
or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lenders rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the Register). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, each Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, each Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignees completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(d), or (e), 2.06 (b), 2.17(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 57
(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, any
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
Participant) in all or a portion of such Lenders rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lenders obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, each Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lenders rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.17(c) as though it
were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
2.16 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrowers prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Section 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this Agreement or any provision
hereof.
Section 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an
AMENDED AND RESTATED CREDIT AGREEMENT, Page 58
original, but all of which when taken together shall constitute a single
contract. THIS AGREEMENT, THE OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND ANY SEPARATE
LETTER AGREEMENTS WITH RESPECT TO FEES PAYABLE TO THE ADMINISTRATIVE AGENT EMBODY THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND ALL
PREVIOUS COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN,
RELATING TO THE SUBJECT MATTER HEREOF (INCLUDING WITHOUT LIMITATION, THE PRIOR AGREEMENT) AND MAY
NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OR DISCUSSIONS OF THE PARTIES HERETO THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO. This Agreement amends and restates in its entirety the Prior Agreement. However, for all
matters arising prior to the Effective Date (including, without limitation, the accrual and payment
of interest and fees, and matters relating to indemnification and compliance with financial
covenants), the terms of the Prior Agreement (as unmodified by this Agreement) shall control and
are hereby ratified and confirmed. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear the signatures of
each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement. Borrower represents and warrants that as of the
Effective Date there are no claims or offsets against or rights of recoupment with respect to or
defenses or counterclaims to its obligations under the Prior Agreement. TO INDUCE THE LENDERS AND
ADMINISTRATIVE AGENT TO ENTER INTO THIS AGREEMENT, BORROWER WAIVES ANY AND ALL SUCH CLAIMS,
OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR
TO THE CLOSING DATE AND RELATING TO THE PRIOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
Section 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.
Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law of the State
of Texas.
(b) THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF
AMENDED AND RESTATED CREDIT AGREEMENT, Page 59
THE STATE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF TEXAS, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH TEXAS STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY ISSUING BANK OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
Section 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit,
AMENDED AND RESTATED CREDIT AGREEMENT, Page 60
action or
proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement
and (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information becomes publicly available other than as a result of a breach of
this Section or becomes available to the Administrative Agent, an Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower or any of its Affiliates; provided
such source is not known by the receiving party to be bound by a confidentiality agreement with or
other contractual, legal or fiduciary obligation of confidentiality to Borrower, or (i) to any
direct or indirect contractual counterparty with a Lender or its Affiliates in a Swap Agreement or
such counterpartys professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of this Section
9.12); provided that, unless specifically prohibited by applicable law or court order,
each Lender shall notify the Borrower of any request by any regulatory authority or representative
thereof or pursuant to legal process (other than any such request in connection with any
examination of the financial condition of such Lender by such regulatory authority) for disclosure
of any such nonpublic information prior to disclosure of such information. For the purposes of
this Section, Information means all information received from the Borrower or any of its
Affiliates relating to the Borrower or any of the Subsidiaries or their respective businesses;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Section 9.13. Maximum Interest Rate.
(a) No interest rate specified in any Loan Document shall at any time exceed the Maximum Rate.
If at any time the interest rate (the Contract Rate) for any obligation under the Loan
Documents shall exceed the Maximum Rate, thereby causing the interest accruing on such obligation
to be limited to the Maximum Rate, then any subsequent reduction in the Contract Rate for such
obligation shall not reduce the rate of interest on such obligation below the Maximum Rate until
the aggregate amount of interest accrued on such obligation equals the aggregate amount of interest
which would have accrued on such obligation if the Contract Rate for such obligation had at all
times been in effect. As used herein, the term Maximum Rate means, at any time with respect to
any Lender, the maximum rate of nonusurious interest under applicable law that such Lender may
contract for, charge, reserve, or receive. The Maximum Rate shall be calculated in a manner that
takes into account any and all fees, payments, and other charges contracted for, charged, reserved,
or received in connection with the Loan Documents that constitute interest under applicable law.
Each change in any interest rate provided for herein based upon the Maximum Rate resulting from a
change in the Maximum Rate shall take effect without notice to Borrower at the time of such change
in the Maximum Rate. For purposes of determining the Maximum Rate under Texas law, the applicable
rate ceiling shall be the weekly rate ceiling described in, and computed in accordance with,
Chapter 303 of the Texas Finance Code.
(b) No provision of any Loan Document shall require the payment or the collection of interest
in excess of the maximum amount permitted by applicable law. If any excess interest is hereby
provided for, or shall be adjudicated to be so provided, in any Loan Document or otherwise in
connection with this loan transaction, the provisions of this Section shall govern and prevail and
neither Borrower nor the sureties, guarantors, successors, or assigns of Borrower shall be
obligated to pay the excess amount of such interest or any other excess sum paid for the use,
forbearance, or detention of sums loaned pursuant hereto. In the event any Lender ever receives,
or collects, interest in excess of the maximum lawful
AMENDED AND RESTATED CREDIT AGREEMENT, Page 61
amount of interest, such amount which is or
would be in excess of the maximum amount permitted by applicable law shall be applied as a payment
and reduction of the principal of the obligations outstanding hereunder, and, if the principal of
the obligations outstanding hereunder has been paid in full or would be paid in full by all or part
of such application, any remaining excess shall forthwith be paid to the Borrower. In determining
whether or not the interest contracted for, charged, reserved or received exceeds the Maximum Rate,
Borrower and each Lender shall, to the extent permitted by applicable law, (a) characterize any
non-principal payment as an expense, fee, or premium rather than as interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread the total
amount of interest contracted for, charged, reserved and received throughout the entire
contemplated term of the obligations outstanding hereunder so that interest for the entire term
does not exceed the Maximum Rate.
(c) The provisions of Chapter 346 of the Finance Code of Texas are specifically declared by
the parties hereto not to be applicable to this Agreement or to the transactions contemplated
hereby.
Section 9.14. No Fiduciary Relationship. The relationship between the Borrower and
the Guarantors on the one hand and the Administrative Agent and each Lender on the other is solely
that of debtor and creditor, and neither the Administrative Agent nor any Lender has any fiduciary
or other special relationship with either the Borrower or any Guarantor, and no term or condition
of any of the Loan Documents shall be construed so as to deem the relationship between the Borrower
and the Guarantors on the one hand and the Administrative Agent and each Lender on the other to be
other than that of debtor and creditor.
Section 9.15. Construction. The Borrower, the Guarantors (by its execution of the
Loan Documents to which it is a party), the Administrative Agent and each Lender acknowledges that
each of them has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review the Loan Documents with its legal counsel and that the Loan Documents shall
be construed as if jointly drafted by the parties thereto.
Section 9.16. Independence of Covenants. All covenants under the Loan Documents shall
be given independent effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default if such action is
taken or such condition exists.
Section 9.17. USA PATRIOT Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Act) hereby
notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Borrower, which information includes the name and
address of the Borrower and other information that will allow such Lender to identify the Borrower
in accordance with the Act.
AMENDED AND RESTATED CREDIT AGREEMENT, Page 62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
|
|
|
|
|
|
|
|
|
EAGLE MATERIALS INC. (formerly Centex
Construction Products, Inc.) |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Arthur R. Zunker, Jr., Chief Financial Officer |
|
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank and
successor by merger to Bank One, N.A.)
individually and as Administrative Agent, |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
David L. Howard, Vice President |
|
|
|
|
|
|
|
|
|
PNC BANK, N.A. |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BANK OF TEXAS, N.A. |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUNTRUST BANK |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BRANCH BANKING AND TRUST COMPANY |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
AMENDED AND RESTATED CREDIT AGREEMENT, Page 63
|
|
|
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WELLS FARGO BANK, N.A. |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BNP PARIBAS |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A. |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
THE NORTHERN TRUST COMPANY |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMERICA BANK |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
AMENDED AND RESTATED CREDIT AGREEMENT, Page 64
|
|
|
|
|
|
|
|
|
UNION BANK OF CALIFORNIA, N.A. |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
AMENDED AND RESTATED CREDIT AGREEMENT, Page 65
LIST OF SCHEDULES AND EXHIBITS
Schedules:
|
|
|
|
|
Schedule 1.01(a)
|
|
|
|
Existing Letters of Credit |
Schedule 2.01
|
|
|
|
Commitments |
Schedule 3.05
|
|
|
|
Existing Liens |
Schedule 3.06
|
|
|
|
Disclosed Matters |
Schedule 3.12
|
|
|
|
Subsidiaries |
Schedule 3.13
|
|
|
|
Existing Indebtedness |
Schedule 6.04
|
|
|
|
Existing Investments |
Schedule 6.08
|
|
|
|
Existing Restrictions |
Exhibits:
|
|
|
|
|
Exhibit A
|
|
|
|
Form of Assignment and Assumption |
Exhibit B
|
|
|
|
Form of Opinion of Borrowers Counsel |
Exhibit C
|
|
|
|
Form of Guaranty Agreement |
Exhibit D
|
|
|
|
Form of Notice of Borrowing |
Exhibit E
|
|
|
|
Form of Increased Commitment Supplement |
LIST OF SCHEDULES AND EXHIBITS, Solo Page
EXHIBIT A
TO
EAGLE MATERIALS INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Form of Assignment and Assumption
Exhibit A, Form of ASSIGNMENT AND ASSUMPTION, Cover Page
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
Assignor) and [Insert name of Assignee] (the Assignee). Capitalized terms used
but not defined herein shall have the meanings given to them in the Amended and Restated Credit
Agreement identified below (as amended, the Credit Agreement), receipt of a copy of
which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex
1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guaranties, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the Assigned Interest). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
|
|
|
|
|
1.
|
|
Assignor: |
|
|
|
|
|
|
|
2.
|
|
Assignee: |
|
|
|
|
|
|
[and is an Affiliate/Approved Fund of [identify Lender]] |
|
|
|
|
|
3.
|
|
Borrower:
|
|
Eagle Materials Inc.(formerly Centex Construction Products, Inc.) |
|
|
|
|
|
4.
|
|
Administrative Agent:
|
|
JPMorgan Chase Bank, N.A. as the administrative agent under the Credit Agreement |
|
|
|
|
|
5.
|
|
Credit Agreement:
|
|
The $350,000,000 Amended and Restated Credit Agreement dated as of December 16, 2004
among Eagle Materials Inc., the Lenders parties thereto and JPMorgan Chase Bank, N.A. as
Administrative Agent. |
ASSIGNMENT AND ASSUMPTION, Page 1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6.
|
|
Assigned Interest: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Facility Assigned
|
|
Aggregate Amount of
|
|
Amount of
|
|
|
|
|
|
|
|
|
Commitment/Loans
|
|
Commitment/Loans
|
|
Percentage Assigned
|
|
|
|
|
for all Lenders
|
|
Assigned
|
|
of Commitment/Loans
|
|
|
|
|
|
$ |
|
|
|
$ |
|
|
|
% |
|
|
|
|
|
|
$ |
|
|
|
$ |
|
|
|
% |
|
|
|
|
|
|
$ |
|
|
|
$ |
|
|
|
% |
|
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
|
|
|
|
|
|
|
ASSIGNOR |
|
|
|
|
|
|
|
|
|
[NAME OF ASSIGNOR] |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASSIGNEE |
|
|
|
|
|
|
|
|
|
[NAME OF ASSIGNEE] |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
ASSIGNMENT AND ASSUMPTION, Page 2
[Consented to and] Accepted:
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank),as
Administrative Agent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Consented to:] |
|
|
|
|
|
|
|
|
|
EAGLE MATERIALS INC. |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
ASSIGNMENT AND ASSUMPTION, Page 3
ANNEX 1
EAGLE MATERIALS INC.
AMENDED AND RESTATED CREDIT AGREEMENT
DATED
16 DECEMBER 2004
STANDARD TERMS AND CONDITIONS
FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of the Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of the
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Texas.
ANNEX 1 to Assignment and Assumption, Solo Page
EXHIBIT B
TO
EAGLE MATERIALS INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Form of Opinion of Counsel for the Borrower
16 December 2004
To the Lenders and the Administrative
Agent Referred to Below
c/o JPMorgan Chase Bank, N.A. as
Administrative Agent
2200 Ross Avenue, 3rd Floor
Dallas, Texas, TX 75201
Dear Sirs:
We have acted as counsel for Eagle Materials Inc. (formerly Centex Construction Products,
Inc.), a Delaware corporation (the Borrower) and the guarantors listed in Appendix 1 attached
hereto (the Guarantors) (the Borrower and the Guarantors being collectively referred to hereafter
as the Obligated Parties) in connection with the Amended and Restated Credit Agreement dated as
of December 16, 2004 (the Credit Agreement) among the Borrower, the banks and other financial
institutions identified therein as Lenders, and JPMorgan Chase Bank, N.A. as Administrative Agent.
Terms defined in the Credit Agreement are used herein with the same meanings.
We have examined originals or copies, certified or otherwise identified to our satisfaction,
of such documents, corporate records, certificates of public officials and other instruments and
have conducted such other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Each of the Obligated Parties (a) is a business entity duly organized, validly existing and
in good standing under the laws of its state of formation, (b) has all requisite corporate, limited
liability company or partnership power and authority to carry on its business as now conducted and
(c) except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
2. The Transactions are within each of the Obligated Parties corporate, limited liability
company or partnership powers and have been duly authorized by all necessary corporate, company or
partnership action and, if required, stockholder, member, manager or partner action. Each of the
Obligated Parties has duly executed and delivered the Loan Documents to which it is a party and
such Loan Documents constitute the legal, valid and binding obligation of each of the Obligated
Parties which are parties thereto, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
EXHIBIT B, OPINION OF COUNSEL FOR THE BORROWER, Page 1
3. The Transactions (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have been obtained or made
and are in full force and effect, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of Borrower or any of the Subsidiaries or any
order of any Governmental Authority, (c) to the best of our knowledge after due inquiry, will not
violate or result in a default under any indenture, agreement or other instrument binding upon
Borrower or any of the Subsidiaries or any of their respective assets, or give rise to a right
thereunder to require any payment to be made by Borrower or any of the Subsidiaries, and (d) to the
best of our knowledge after due inquiry, will not result in the creation or imposition of any Lien
on any asset of Borrower or any Subsidiary.
4. To the best of our knowledge after due inquiry, there are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority pending against or threatened against or
affecting Borrower or any Subsidiary (a) as to which there is a reasonable expectation of an
adverse determination and that, if adversely determined, could reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect (other than the Disclosed Matters) or (b)
that involve the Loan Documents or the Transactions.
We are members of the bar of the State of Texas and the foregoing opinion is limited to the
laws of the State of Texas, the General Corporation Law of each state in which any Obligated Party
is organized and the Federal laws of the United States of America. This opinion is rendered solely
to you in connection with the above matter. This opinion may not be relied upon by you for any
other purpose or relied upon by any other Person (other than your successors and assigns as Lenders
and Persons that acquire participations in your Loans) without our prior written consent.
Very truly yours,
EXHIBIT B, OPINION OF COUNSEL FOR THE BORROWER, Page 2
APPENDIX 1
TO
LEGAL OPINION
Guarantors
AMERICAN GYPSUM COMPANY
AMERICAN GYPSUM MARKETING COMPANY
CCP CEMENT COMPANY
CCP CONCRETE/AGGREGATES LLC
CCP GYPSUM COMPANY
CCP LAND COMPANY
CENTEX CEMENT CORPORATION
CENTEX MATERIALS LLC
HOLLIS & EASTERN RAILROAD COMPANY LLC
MATHEWS READYMIX LLC
M&W DRYWALL SUPPLY COMPANY
MOUNTAIN CEMENT COMPANY
NEVADA CEMENT COMPANY
REPUBLIC PAPERBOARD COMPANY LLC
TLCC GP LLC
TLCC LP LLC
TEXAS CEMENT COMPANY
WESTERN AGGREGATES LLC (formerly Western Aggregates, Inc.)
WESTERN CEMENT COMPANY OF CALIFORNIA
EXHIBIT B, OPINION OF COUNSEL FOR THE BORROWER, Page 3
EXHIBIT C
TO
EAGLE MATERIALS INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Form of Subsidiary Guaranty
EXHIBIT C, FORM OF GUARANTY AGREEMENT, Cover Page
AMENDED AND RESTATED GUARANTY AGREEMENT
WHEREAS, EAGLE MATERIALS INC. (formerly Centex Construction Products, Inc.), a Delaware
corporation (the Borrower) has entered into that certain Amended and Restated Credit
Agreement dated as of December 16, 2004, among Borrower, the lenders party thereto (the
Lenders), and JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank), as the
administrative agent for such Lenders (the Agent) (such Amended and Restated Credit
Agreement, as it may hereafter be amended or otherwise modified from time to time, being
hereinafter referred to as the Credit Agreement, and capitalized terms not otherwise
defined herein shall have the same meaning as set forth in the Credit Agreement);
WHEREAS, certain of the parties hereto have executed and delivered that certain Guaranty
Agreement dated as of December 18, 2003 in connection with and for the benefit of the lenders under
the Prior Agreement (as defined in the Credit Agreement and such Guaranty Agreement, herein the
Prior Guaranty) and the execution of this Amended and Restated Guaranty Agreement (herein
the Guaranty Agreement) is a condition to the Agents and each Lenders obligations under
the Credit Agreement and amends and restates the Prior Guaranty in its entirety;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each of the undersigned Subsidiaries and any Subsidiary hereafter added as a
Guarantor hereto pursuant to a Subsidiary Joinder Agreement in the form attached hereto as
Exhibit A (individually a Guarantor and collectively the Guarantors), hereby
irrevocably and unconditionally guaranties to the Agent, the Lenders, the Issuing Banks and their
respective Related Parties (collectively the Creditors) the full and prompt payment and
performance of the Guarantied Indebtedness (hereinafter defined), this Guaranty Agreement being
upon the following terms:
1. The term Guarantied Indebtedness, as used herein, means: (i) all obligations,
indebtedness, and liabilities of the Borrower to any Creditor arising pursuant to the Credit
Agreement, any note executed pursuant thereto or any other Loan Document, whether now existing or
hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several, including, without limitation, the obligation
of the Borrower to repay the Loans, the LC Disbursements, interest on the Loans and LC
Disbursements, and all fees, costs, and expenses (including attorneys fees and expenses) provided
for in the Credit Agreement and the notes executed pursuant thereto and (ii) all obligations,
indebtedness, and liabilities of the Borrower or any Subsidiaries, or any one of them, to any
Lender or any Affiliate of any Lender arising pursuant to any Swap Agreements entered into by such
Creditor with the Borrower or any Subsidiaries, or any one of them, whether now existing or
hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several, including, without limitation, all fees, costs,
and expenses (including attorneys fees and expenses) provided for in such Swap Agreements. The
Guarantied Indebtedness shall include any and all post-petition interest and expenses
(including attorneys fees) whether or not allowed under any bankruptcy, insolvency, or other
similar law; provided that the Guarantied Indebtedness shall be limited, with respect to
each Guarantor, to an aggregate amount equal to the largest amount that would not render such
Guarantors obligations hereunder subject to avoidance under Section 544 or 548 of the United
States Bankruptcy Code or under any applicable state law relating to fraudulent transfers or
conveyances.
2. The Guarantors together desire to allocate among themselves (collectively, the
Contributing Guarantors), in a fair and equitable manner, their obligations arising under
this Guaranty Agreement. Accordingly, in the event any payment or distribution is made by a
Guarantor under this Guaranty Agreement (a Funding Guarantor) that exceeds its Fair Share
(as defined below), that Funding Guarantor shall be entitled to a contribution from each of the
other Contributing Guarantors in the amount
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 1
of such other Contributing Guarantors Fair Share Shortfall (as defined below), with the
result that all such contributions will cause each Contributing Guarantors Aggregate Payments (as
defined below) to equal its Fair Share. Fair Share means, with respect to a Contributing
Guarantor as of any date of determination, an amount equal to (i) the ratio of (x) the Adjusted
Maximum Amount (as defined below) with respect to such Contributing Guarantor to (y) the aggregate
of the Adjusted Maximum Amounts with respect to all Contributing Guarantors, multiplied
by (ii) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty Agreement in respect of the obligations guarantied. Fair Share
Shortfall means, with respect to a Contributing Guarantor as of any date of determination, the
excess, if any, of the Fair Share of such Contributing Guarantor over the Aggregate Payments of
such Contributing Guarantor. Adjusted Maximum Amount means, with respect to a
Contributing Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Contributing Guarantor under this Guaranty Agreement determined in accordance
with the provisions hereof; provided that, solely for purposes of calculating the Adjusted
Maximum Amount with respect to any Contributing Guarantor for purposes of this paragraph 2, the
assets or liabilities arising by virtue of any rights to or obligations of contribution hereunder
shall not be considered as assets or liabilities of such Contributing Guarantor. Aggregate
Payments means, with respect to a Contributing Guarantor as of any date of determination, the
aggregate amount of all payments and distributions made on or before such date by such Contributing
Guarantor in respect of this Guaranty Agreement (including, without limitation, in respect of this
paragraph 2). The amounts payable as contributions hereunder shall be determined as of the date on
which the related payment or distribution is made by the applicable Funding Guarantor. The
allocation among Contributing Guarantors of their obligations as set forth in this paragraph 2
shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder.
3. This instrument shall be an absolute, continuing, irrevocable and unconditional guaranty of
payment and performance, and not a guaranty of collection, and each Guarantor shall remain liable
on its obligations hereunder until the payment and performance in full of the Guarantied
Indebtedness. No set-off, counterclaim, recoupment, reduction, or diminution of any obligation, or
any defense of any kind or nature which Borrower or any Subsidiary may have against any Creditor or
any other party, or which any Guarantor may have against Borrower or any Subsidiary, any Creditor
or any other party, shall be available to, or shall be asserted by, any Guarantor against any
Creditor or any subsequent holder of the Guarantied Indebtedness or any part thereof or against
payment of the Guarantied Indebtedness or any part thereof.
4. If a Guarantor becomes liable for any indebtedness owing by Borrower or any Subsidiary to
any Creditor by endorsement or otherwise, other than under this Guaranty Agreement, such liability
shall not be in any manner impaired or affected hereby, and the rights of the Creditors hereunder
shall be cumulative of any and all other rights that any Creditor may ever have against such
Guarantor. The exercise by any Creditor of any right or remedy hereunder or under any other
instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any
other right or remedy.
5. In the event of default by Borrower or any Subsidiary in payment or performance of the
Guarantied Indebtedness, or any part thereof, when such Guarantied Indebtedness becomes due,
whether by its terms, by acceleration, or otherwise, the Guarantors shall, jointly and severally,
promptly pay the amount due thereon to Agent, without notice or demand, in lawful currency of the
United States of America, and it shall not be necessary for Agent or any other Creditor, in order
to enforce such payment by any Guarantor, first to institute suit or exhaust its remedies against
Borrower, any Subsidiary or others liable on such Guarantied Indebtedness, or to enforce any rights
against any collateral which shall ever have been given to secure such Guarantied Indebtedness. In
the event such payment is made by a Guarantor, then such Guarantor shall be subrogated to the
rights then held by Agent and any other Creditor with respect to the Guarantied Indebtedness to the
extent to which the Guarantied Indebtedness
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 2
was discharged by such Guarantor and, in addition, upon payment by such Guarantor of any sums
to Agent or any other Creditor hereunder, all rights of such Guarantor against Borrower, any
Subsidiary, any other guarantor or any collateral arising as a result therefrom by way of right of
subrogation, reimbursement, or otherwise shall in all respects be subordinate and junior in right
of payment to the prior indefeasible payment in full of the Guarantied Indebtedness. All payments
received by the Agent hereunder shall be applied by the Agent to payment of the Guarantied
Indebtedness in the order provided for in Section 2.17 of the Credit Agreement.
6. If acceleration of the time for payment of any amount payable by Borrower or any Subsidiary
under the Guarantied Indebtedness is stayed upon the insolvency, bankruptcy, or reorganization of
Borrower or any Subsidiary, all such amounts otherwise subject to acceleration under the terms of
the Guarantied Indebtedness shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by Agent or any other Creditor.
7. Each Guarantor hereby agrees that its obligations under this Guaranty Agreement shall not
be released, discharged, diminished, impaired, reduced, or affected for any reason or by the
occurrence of any event, including, without limitation, one or more of the following events,
whether or not with notice to or the consent of any Guarantor: (a) the taking or accepting of
collateral as security for any or all of the Guarantied Indebtedness or the release, surrender,
exchange, or subordination of any collateral now or hereafter securing any or all of the Guarantied
Indebtedness; (b) any partial release of the liability of any Guarantor hereunder, or the full or
partial release of any other guarantor from liability for any or all of the Guarantied
Indebtedness; (c) any disability of Borrower or any Subsidiary, or the dissolution, insolvency, or
bankruptcy of Borrower, any Subsidiary, any Guarantor, or any other party at any time liable for
the payment of any or all of the Guarantied Indebtedness; (d) any renewal, extension, modification,
waiver, amendment, or rearrangement of any or all of the Guarantied Indebtedness or any instrument,
document, or agreement evidencing, securing, or otherwise relating to any or all of the Guarantied
Indebtedness; (e) any adjustment, indulgence, forbearance, waiver, or compromise that may be
granted or given by Agent or any other Creditor to Borrower, any Subsidiary, any Guarantor, or any
other party ever liable for any or all of the Guarantied Indebtedness; (f) any neglect, delay,
omission, failure, or refusal of Agent or any other Creditor to take or prosecute any action for
the collection of any of the Guarantied Indebtedness or to foreclose or take or prosecute any
action in connection with any instrument, document, or agreement evidencing, securing, or otherwise
relating to any or all of the Guarantied Indebtedness; (g) the unenforceability or invalidity of
any or all of the Guarantied Indebtedness or of any instrument, document, or agreement evidencing,
securing, or otherwise relating to any or all of the Guarantied Indebtedness; (h) any payment by
Borrower, any Subsidiary or any other party to Agent or any other Creditor is held to constitute a
preference under applicable bankruptcy or insolvency law or if for any other reason Agent or any
other Creditor is required to refund any payment or pay the amount thereof to someone else; (i) the
settlement or compromise of any of the Guarantied Indebtedness; (j) the non-perfection of any
security interest or lien securing any or all of the Guarantied Indebtedness; (k) any impairment of
any collateral securing any or all of the Guarantied Indebtedness; (l) the failure of Agent or any
other Creditor to sell any collateral securing any or all of the Guarantied Indebtedness in a
commercially reasonable manner or as otherwise required by law; (m) any change in the corporate
existence, structure, or ownership of Borrower or any Subsidiary; or (n) any other circumstance
which might otherwise constitute a defense available to, or discharge of, Borrower, any Subsidiary
or any other Guarantor (other than payment of the Guarantied Indebtedness).
8. Each Guarantor represents and warrants to Agent and the Lenders as follows:
(a) All representations and warranties in the Credit Agreement relating to it are true and
correct as of the date hereof and on each date the representations and warranties hereunder are
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 3
restated pursuant to the Credit Agreement with the same force and effect as if such
representations and warranties had been made on and as of such date.
(b) It has, independently and without reliance upon any Creditor and based upon such documents
and information as it has deemed appropriate, made its own analysis and decision to enter into this
Guaranty Agreement.
(c) It has adequate means to obtain from Borrower and the Subsidiaries on a continuing basis
information concerning the financial condition and assets of Borrower and the Subsidiaries and it
is not relying upon any Creditor to provide (and no Creditor shall have any duty to provide) any
such information to it either now or in the future.
(2) The value of the consideration received and to be received by each Guarantor as a result
of Borrowers and the Lenders entering into the Credit Agreement and the Borrower and the
Subsidiaries entering into the Swap Agreements and each Guarantors executing and delivering this
Guaranty Agreement is reasonably worth at least as much as the liability and obligation of each
Guarantor hereunder, and such liability and obligation, the Credit Agreement and such Swap
Agreements have benefited and may reasonably be expected to benefit each Guarantor directly or
indirectly.
9. Each Guarantor covenants and agrees that, as long as the Guarantied Indebtedness or any
part thereof is outstanding or any Lender has any commitment under the Credit Agreement, it will
comply with all covenants set forth in the Credit Agreement specifically applicable to it.
10. When an Event of Default exists and subject to the terms of Section 2.17 of the Credit
Agreement, Agent and each other Creditor shall have the right to set-off and apply against this
Guaranty Agreement or the Guarantied Indebtedness or both, at any time and without notice to any
Guarantor, any and all deposits (general or special, time or demand, provisional or final) or other
sums at any time credited by or owing from Agent and each other Creditor to any Guarantor whether
or not the Guarantied Indebtedness is then due and irrespective of whether or not Agent or any
other Creditor shall have made any demand under this Guaranty Agreement. Each Creditor agrees
promptly to notify the Borrower (with a copy to the Agent) after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff and
application. The rights and remedies of Agent and other Creditors hereunder are in addition to
other rights and remedies (including, without limitation, other rights of set-off) which Agent or
any other Creditor may have.
11. (a) Each Guarantor hereby agrees that the Subordinated Indebtedness (as defined below)
shall be subordinate and junior in right of payment to the prior payment in full of all Guarantied
Indebtedness as herein provided. The Subordinated Indebtedness shall not be payable, and no
payment of principal, interest or other amounts on account thereof, and no property or guaranty of
any nature to secure or pay the Subordinated Indebtedness shall be made or given, directly or
indirectly by or on behalf of any Debtor (hereafter defined) or received, accepted, retained or
applied by any Guarantor unless and until the Guarantied Indebtedness shall have been paid in full
in cash; except that prior to the occurrence and continuance of an Event of Default, each Debtor
shall have the right to make payments and a Guarantor shall have the right to receive payments on
the Subordinated Indebtedness from time to time in the ordinary course of business. After the
occurrence and during the continuance of an Event of Default, no payments may be made or given on
the Subordinated Indebtedness, directly or indirectly, by or on behalf of any Debtor or received,
accepted, retained or applied by any Guarantor unless and until the Guarantied Indebtedness shall
have been paid in full in cash. If any sums shall be paid to a Guarantor by any Debtor or any
other Person on account of the Subordinated Indebtedness when such payment is not permitted
hereunder, such sums shall be held in trust by such Guarantor for the benefit of Agent and the
other Creditors and shall forthwith be paid to the Agent and applied by Agent against the
Guarantied
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 4
Indebtedness in accordance with this Guaranty Agreement. For purposes of this Guaranty
Agreement and with respect to a Guarantor, the term Subordinated Indebtedness means all
indebtedness, liabilities, and obligations of Borrower or any other Subsidiary (Borrower and such
other Subsidiaries herein the Debtors) to such Guarantor, whether such indebtedness,
liabilities, and obligations now exist or are hereafter incurred or arise, or are direct, indirect,
contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of
whether such indebtedness, liabilities, or obligations are evidenced by a note, contract, open
account, or otherwise, and irrespective of the Person or Persons in whose favor such indebtedness,
obligations, or liabilities may, at their inception, have been, or may hereafter be created, or the
manner in which they have been or may hereafter be acquired by such Guarantor.
(b) Each Guarantor agrees that any and all Liens (including any judgment liens), upon any
Debtors assets securing payment of any Subordinated Indebtedness shall be and remain inferior and
subordinate to any and all Liens upon any Debtors assets securing payment of the Guarantied
Indebtedness or any part thereof, regardless of whether such Liens in favor of a Guarantor, Agent
or any other Creditor presently exist or are hereafter created or attached. Without the prior
written consent of Agent, no Guarantor shall (i) file suit against any Debtor or exercise or
enforce any other creditors right it may have against any Debtor, or (ii) foreclose, repossess,
sequester, or otherwise take steps or institute any action or proceedings (judicial or otherwise,
including without limitation the commencement of, or joinder in, any liquidation, bankruptcy,
rearrangement, debtors relief or insolvency proceeding) to enforce any obligations of any Debtor
to such Guarantor or any Liens held by such Guarantor on assets of any Debtor.
(c) In the event of any receivership, bankruptcy, reorganization, rearrangement, debtors
relief, or other insolvency proceeding involving any Debtor as debtor, Agent shall have the right
to prove and vote any claim under the Subordinated Indebtedness and to receive directly from the
receiver, trustee or other court custodian all dividends, distributions, and payments made in
respect of the Subordinated Indebtedness until the Guarantied Indebtedness has been paid in full in
cash. Agent may apply any such dividends, distributions, and payments against the Guarantied
Indebtedness in accordance with the Credit Agreement.
12. Except for modifications made pursuant to the execution and delivery of a Subsidiary
Joinder Agreement (which needs to be signed only by the Subsidiary party thereto) and the release
of any Guarantor from its obligations hereunder (which shall require the consent of all Lenders
unless such release is authorized by Section 9.02 of the Credit Agreement); no amendment or waiver
of any provision of this Guaranty Agreement or consent to any departure by any Guarantor therefrom
shall in any event be effective unless the same shall be in writing and signed by Agent and
Required Lenders except as otherwise provided in the Credit Agreement. No failure on the part of
Agent or any other Creditor to exercise, and no delay in exercising, any right, power, or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, power, or privilege. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
13. To the extent permitted by law, any acknowledgment or new promise, whether by payment of
principal or interest or otherwise and whether by Borrower or others (including any Guarantor),
with respect to any of the Guarantied Indebtedness shall, if the statute of limitations in favor of
a Guarantor against Agent or any other Creditor shall have commenced to run, toll the running of
such statute of limitations and, if the period of such statute of limitations shall have expired,
prevent the operation of such statute of limitations.
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 5
14. This Guaranty Agreement is for the benefit of the Creditors and their successors and
assigns, and in the event of an assignment of the Guarantied Indebtedness, or any part thereof, the
rights and benefits hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty Agreement is binding not only on each Guarantor,
but on each Guarantors successors and assigns.
15. Each Guarantor recognizes that Agent and the Lenders are relying upon this Guaranty
Agreement and the undertakings of each Guarantor hereunder in making extensions of credit to
Borrower under the Credit Agreement and further recognizes that the execution and delivery of this
Guaranty Agreement is a material inducement to Agent and the Lenders in entering into the Credit
Agreement and continuing to extend credit thereunder. Each Guarantor hereby acknowledges that
there are no conditions to the full effectiveness of this Guaranty Agreement.
16. Any notice or demand to any Guarantor under or in connection with this Guaranty Agreement
shall be deemed effective if given to the Guarantor, care of Borrower in accordance with the notice
provisions in the Credit Agreement.
17. The Guarantors shall, jointly and severally, pay on demand all reasonable attorneys fees
and all other reasonable costs and expenses incurred by Agent and the other Creditors in connection
with the administration, enforcement, or collection of this Guaranty Agreement.
18. Except as otherwise specifically provided in the Credit Agreement, each Guarantor hereby
waives promptness, diligence, notice of any default under the Guarantied Indebtedness, demand of
payment, notice of acceptance of this Guaranty Agreement, presentment, notice of protest, notice of
dishonor, notice of the incurring by Borrower of additional indebtedness, notice of intent to
accelerate, notice of acceleration and all other notices and demands with respect to the Guarantied
Indebtedness and this Guaranty Agreement.
19. The Credit Agreement, and all of the terms thereof, are incorporated herein by reference,
the same as if stated verbatim herein, and each Guarantor agrees that Agent and the Lenders may
exercise any and all rights granted to any of them under the Credit Agreement without affecting the
validity or enforceability of this Guaranty Agreement.
20. THIS GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF EACH GUARANTOR, AGENT AND
THE OTHER CREDITORS WITH RESPECT TO EACH GUARANTORS GUARANTY OF THE GUARANTIED INDEBTEDNESS AND
SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF, INCLUDING THE PRIOR GUARANTY. THIS
GUARANTY AGREEMENT IS INTENDED BY EACH GUARANTOR, AGENT AND THE OTHER CREDITORS AS A FINAL AND
COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY AGREEMENT, AND NO COURSE OF DEALING AMONG ANY
GUARANTOR, AGENT AND ANY OTHER CREDITOR, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC
EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS
GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS AMONG ANY GUARANTOR, AGENT AND ANY OTHER
CREDITOR. This Guaranty Agreement amends and restates in its entirety the Prior Guaranty.
However, for all matters arising prior to the date hereof (including, without limitation, the
accrual and payment of interest and fees, and matters relating to indemnification), the terms of
the Prior Guaranty (as unmodified by this Guaranty Agreement) shall control and are hereby ratified
and confirmed. Each Guarantor represents and warrants
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 6
that as of the date hereof there are no
claims or offsets against or rights of recoupment with respect to or defenses or counterclaims to
its obligations under the Prior Guaranty. TO INDUCE THE LENDERS AND ADMINISTRATIVE AGENT TO ENTER
INTO THE CREDIT AGREEMENT, EACH GUARANTOR WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES OR
COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE HEREOF AND RELATING TO THE PRIOR
GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. This Guaranty Agreement shall be construed in accordance with and governed by the law of
the State of Texas. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE STATE COURTS OF THE STATE OF TEXAS SITTING IN
DALLAS COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF TEXAS, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE OR, TO THE EXTENT PERMITTED BY LAW,
IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT
THAT ANY CREDITOR MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY
AGREEMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. Each
Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Guaranty Agreement in any court
referred to in this Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Each party to this Guaranty Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01 of the Credit Agreement.
Nothing in this Guaranty Agreement will affect the right of any party to this Guaranty Agreement to
serve process in any other manner permitted by law.
22. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 7
EXECUTED as of the date first written above.
|
|
|
|
|
GUARANTORS: |
|
|
|
AMERICAN GYPSUM COMPANY |
|
|
AMERICAN GYPSUM MARKETING COMPANY |
|
|
CCP CEMENT COMPANY |
|
|
CCP CONCRETE/AGGREGATES LLC |
|
|
CCP GYPSUM COMPANY |
|
|
CCP LAND COMPANY |
|
|
CENTEX CEMENT CORPORATION |
|
|
HOLLIS & EASTERN RAILROAD COMPANY LLC |
|
|
MATHEWS READYMIX LLC |
|
|
M&W DRYWALL SUPPLY COMPANY |
|
|
MOUNTAIN CEMENT COMPANY |
|
|
NEVADA CEMENT COMPANY |
|
|
REPUBLIC PAPERBOARD COMPANY LLC |
|
|
TEXAS CEMENT COMPANY |
|
|
WESTERN AGGREGATES LLC (formerly Western |
|
|
Aggregates, Inc.) |
|
|
WESTERN CEMENT COMPANY OF CALIFORNIA |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
Arthur R. Zunker, Jr., Senior Vice President |
|
|
|
|
Finance and Treasurer of each Guarantor |
|
|
|
|
|
|
|
CENTEX MATERIALS LLC |
|
|
TLCC GP LLC |
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
Arthur R. Zunker, Jr., Manager of the Guarantors |
|
|
|
|
listed |
|
|
|
|
|
|
|
TLCC LP LLC |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
Nicholas Stiren, Manager of the Guarantor listed |
AMENDED AND RESTATED GUARANTY AGREEMENT, Page 8
EXHIBIT A
TO
GUARANTY AGREEMENT
Subsidiary Joinder Agreement
EXHIBIT A to GUARANTY AGREEMENT, Cover Page
SUBSIDIARY JOINDER AGREEMENT
This SUBSIDIARY JOINDER AGREEMENT (the Agreement) dated as of _________, _________is
executed by the undersigned (the Guarantor) for the benefit of JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank) in its capacity as agent for the lenders party to the
hereafter identified Credit Agreement and for the benefit of such lenders and certain other
creditors in connection with that certain Amended and Restated Credit Agreement dated as of
December 16, 2004 among Eagle Materials Inc. (formerly Centex Construction Products, Inc. and
herein Borrower), the lenders party thereto, JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), as the administrative agent for the Lenders (the Agent) (such Amended and
Restated Credit Agreement, as it may hereafter be amended or otherwise modified from time to time,
being hereinafter referred to as the Credit Agreement, and capitalized terms not otherwise
defined herein shall have the same meaning as set forth in the Credit Agreement).
The Guarantor is a newly formed or newly acquired Subsidiary and is required to execute this
Agreement pursuant to Section 5.09 of the Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:
1. The Guarantor hereby assumes all the obligations of a Guarantor under the Subsidiary
Guaranty and agrees that it is a Guarantor and bound as a Guarantor under the terms of the
Subsidiary Guaranty as if it had been an original signatory thereto. In accordance with the
foregoing and for valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor irrevocably and unconditionally guaranties to the Agent and the other
Creditors the full and prompt payment and performance of the Guarantied Indebtedness (as defined in
the Subsidiary Guaranty) upon the terms and conditions set forth in the Subsidiary Guaranty.
2. This Agreement shall be deemed to be part of, and a modification to, the Subsidiary
Guaranty and shall be governed by all the terms and provisions of the Subsidiary Guaranty, which
terms are incorporated herein by reference, are ratified and confirmed and shall continue in full
force and effect as valid and binding agreements of Guarantor enforceable against Guarantor. The
Guarantor hereby waives notice of Agents, the Issuing Banks or any other Lenders acceptance of
this Agreement.
IN WITNESS WHEREOF, the Guarantor has executed this Agreement as of the day and year first
written above.
|
|
|
|
|
|
|
|
|
Guarantor: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
SUBSIDIARY JOINDER AGREEMENT, Solo Page
EXHIBIT D
TO
EAGLE MATERIALS INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Form of Notice of Borrowing
EXHIBIT D, FORM OF NOTICE OF BORROWING, Cover Page
[Date]
JPMorgan Chase Bank, N.A., as Administrative
Agent for the Lenders referred to below
2200 Ross Avenue, 3rd Floor
Dallas, TX 75201
Attn: David L. Howard
Telecopy: 214-965-2044
and
JPMorgan Chase Bank, N.A.
1111 Fannin St., 10th Floor
Houston, Texas 77002
Attn: Rese Comley
Telecopy: 713-750-2892
Ladies and Gentlemen:
The undersigned, Eagle Materials Inc. (the Borrower), refers to the Amended and
Restated Credit Agreement dated as of December 16, 2004 among the Borrower, the Lenders named
therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative
Agent (as amended, modified, extended or restated from time to time, the Agreement).
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Agreement.
1. The Borrower hereby gives you notice pursuant to Section 2.03 of the Agreement that
it requests a Borrowing under the Agreement, and sets forth below the terms on which such Borrowing
is requested to be made:
|
|
|
|
|
|
|
|
|
(A)
|
|
Date of Borrowing (which is a Business Day)
|
|
|
|
|
|
|
|
|
|
|
|
(B)
|
|
Type of Loan (i.e., ABR Borrowing or Eurodollar Borrowing)
|
|
|
|
|
|
|
|
|
|
|
|
(C)
|
|
Facility (i.e., Revolver or Swingline)
|
|
|
|
|
|
|
|
|
|
|
|
(D)
|
|
Principal amount of Borrowing4
|
|
|
|
|
|
|
|
|
|
|
|
(E)
|
|
Interest Period and the last day thereof5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(F)
|
|
Total outstanding Revolving Loans (including, if applicable, |
|
|
|
|
|
|
Borrowing requested)
|
|
$ |
|
|
|
|
|
|
|
|
|
(G)
|
|
Total outstanding Swingline Loans (including, if applicable, |
|
|
|
|
|
|
Borrowing requested)
|
|
$ |
|
|
|
4 |
|
Not less than $1,000,000 (and in integral multiples of $100,000) with respect to Revolving Loans. Not less than
$100,000 (and in integral multiples of $100,000) with respect to Swingline Loans. |
|
5 |
|
Which shall be subject to the definition of Interest Period and end not later than the Maturity Date. |
NOTICE OF BORROWING, Page 1
|
|
|
|
|
|
|
|
|
(H)
|
|
Total LC Exposure
|
|
$ |
|
|
|
|
|
|
|
|
|
(I)
|
|
Total Revolving Exposure (sum of (F), (G) and (H))
|
|
$ |
|
|
|
|
|
|
|
|
|
(J)
|
|
Total Commitments
|
|
$ |
|
|
|
|
|
|
|
|
|
(K)
|
|
Availability ((J) (I))
|
|
$ |
2. The Borrower instructs you to disburse the proceeds of the requested Borrowing into the
following account:
Account Name:
Bank Name:
ABA Routing No.:
Bank Account No.:
Ref.:
The Borrower represents and warrants that the conditions to lending specified in Section
4.02(a) and (b) of the Agreement have been satisfied and that after giving effect to
the Borrowing requested hereby, the total Revolving Credit Exposures of all Lenders shall not
exceed the total Commitment.
|
|
|
|
|
|
|
|
|
Very truly yours, |
|
|
|
|
|
|
|
|
|
EAGLE MATERIALS INC. |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
NOTICE OF BORROWING, Page 2
EXHIBIT E
TO
EAGLE MATERIALS INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Form of Increased Commitment Supplement
EXHIBIT C, Cover Page
INCREASED COMMITMENT SUPPLEMENT
This
INCREASED COMMITMENT SUPPLEMENT (this Supplement) is dated as of _________, 20_________ and
entered into by and among EAGLE MATERIALS INC. (formerly Centex Construction Products, Inc.), a
Delaware corporation (the Borrower), each of the banks or other lending institutions which is a
signatory hereto (the Lenders), JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase
Bank), as Administrative Agent for itself and the other lenders (in such capacity, together with
its successors in such capacity, the Agent), and is made with reference to that certain Amended
and Restated Credit Agreement dated as of December 16, 2004 (as amended, the Credit Agreement),
by and among the Borrower, certain lenders and JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), as Administrative Agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, pursuant to Section 2.19 of the Credit Agreement, the Borrower and the
Lenders are entering into this Increased Commitment Supplement to provide for the increase of the
aggregate Commitments;
WHEREAS, each Lender [party hereto and already a party to the Credit Agreement] wishes to
increase its Commitment [, and each Lender, to the extent not already a Lender party to the Credit
Agreement (herein a New Lender), wishes to become a Lender party to the Credit
Agreement];
WHEREAS, the Lenders are willing to agree to supplement the Credit Agreement in the manner
provided herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
Section 1. Increase in Commitments. Subject to the terms and conditions hereof, each
Lender severally agrees that its Commitment shall be increased to [or in the case of a New Lender,
shall be] the amount set forth opposite its name on the signature pages hereof.
Section 2. [New Lenders. Each New Lender (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the most recent financial statements of the Borrower
delivered under Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Supplement; (ii) agrees
that it has, independently and without reliance upon the Agent, any other Lender or any of their
Related Parties and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Supplement; (iii) agrees that it will,
independently and without reliance upon the Agent, any other Lender or any of their Related Parties
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 the Credit Agreement; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such
powers and discretion under the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental thereto; and (v)
agrees that it is a Lender under the Credit Agreement and will perform in accordance
|
|
|
1
Bracketed alternatives should be included
if there are New Banks. |
INCREASED COMMITMENT SUPPLEMENT, Page 1
with their terms all of the obligations that by the terms of the Credit Agreement are required
to be performed by it as a Lender.
Section 3. Conditions to Effectiveness. Section 1 of this Supplement shall
become effective only upon the satisfaction of the following conditions precedent:
(a) receipt by the Agent of an opinion of counsel to the Borrower as to the
matters referred to in Section 3.01, 3.02 and 3.03 of the Credit
Agreement (with the term Agreement as used therein meaning this Supplement for
purposes of such opinion), dated the date hereof, satisfactory in form and substance
to the Agent;
(b) receipt by the Agent of certified copies of all corporate action taken by
the Borrower to authorize the execution, delivery and performance of this
Supplement; and
(c) receipt by the Agent of a certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Supplement and the other documents to be
delivered hereunder.
Section 4. Representations and Warranties. In order to induce the Lenders to enter
into this Supplement and to supplement the Credit Agreement in the manner provided herein, Borrower
represents and warrants to Agent and each Lender that (a) the representations and warranties
contained in Article III of the Credit Agreement are and will be true, correct and complete
in all material respects on and as of the effective date hereof to the same extent as though made
on and as of that date and for that purpose, this Supplement shall be deemed to be included as part
of the Agreement referred to therein, and (b) no event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Supplement that would
constitute a Default.
Section 5. Effect of Supplement. The terms and provisions set forth in this
Supplement shall modify and supersede all inconsistent terms and provisions set forth in the Credit
Agreement and except as expressly modified and superseded by this Supplement, the terms and
provisions of the Credit Agreement are ratified and confirmed and shall continue in full force and
effect. The Borrower, the Agent, and the Lenders party hereto agree that the Credit Agreement as
supplemented hereby shall continue to be legal, valid, binding and enforceable in accordance with
their respective terms. Any and all agreements, documents, or instruments now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit
Agreement as supplemented hereby, are hereby amended so that any reference in such documents to the
Agreement shall mean a reference to the Agreement as supplemented hereby.
Section 6. Applicable Law. This Supplement shall be governed by, and construed in
accordance with, the laws of the State of Texas and applicable laws of the United States of
America.
Section 7. Counterparts, Effectiveness. This Supplement may be executed in any number
of counterparts, by different parties hereto in separate counterparts and on telecopy counterparts,
each of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all signature pages are
physically attached to the same document. This Supplement (other than the provisions of
Section 1 hereof, the effectiveness of which is governed by Section 3 hereof) shall
become effective upon the execution of a counterpart hereof by the Borrower, the Lenders and
receipt by the Borrower and the Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
INCREASED COMMITMENT SUPPLEMENT, Page 4
Section 8. ENTIRE AGREEMENT. THIS SUPPLEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND ALL PREVIOUS
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO
THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EAGLE MATERIALS INC. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
New Total Commitment:
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A. (formerly known as |
|
|
|
|
|
|
JPMorgan Chase Bank), as the Administrative Agent |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
[Lender] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
|
|
|
[NEW LENDER] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCREASED COMMITMENT SUPPLEMENT, Page 3
CONSENT OF GUARANTORS
Each Guarantor: (i) consents and agrees to this Supplement; (ii) agrees that each of the
Subsidiary Guaranty is in full force and effect and continues to be its legal, valid and binding
obligation enforceable in accordance with its respective terms; and (iii) agrees that the
obligations, indebtedness and liabilities of the Borrower arising as a result of the increase in
the Commitments contemplated hereby are Guaranteed Indebtedness as defined in the Subsidiary
Guaranty.
|
|
|
|
|
|
|
|
|
GUARANTORS: |
|
|
|
|
|
|
|
|
|
AMERICAN GYPSUM COMPANY |
|
|
AMERICAN GYPSUM MARKETING COMPANY |
|
|
CCP CEMENT COMPANY |
|
|
CCP CONCRETE/AGGREGATES LLC |
|
|
CCP GYPSUM COMPANY |
|
|
CCP LAND COMPANY |
|
|
CENTEX CEMENT CORPORATION |
|
|
HOLLIS & EASTERN RAILROAD COMPANY LLC |
|
|
MATHEWS READYMIX LLC |
|
|
M&W DRYWALL SUPPLY COMPANY |
|
|
MOUNTAIN CEMENT COMPANY |
|
|
NEVADA CEMENT COMPANY |
|
|
REPUBLIC PAPERBOARD COMPANY LLC |
|
|
TEXAS CEMENT COMPANY |
|
|
WESTERN AGGREGATES LLC (formerly Western Aggregates, Inc.) |
|
|
WESTERN CEMENT COMPANY OF CALIFORNIA |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Arthur R. Zunker, Jr., Senior Vice President
Finance and Treasurer of each Guarantor |
|
|
|
|
|
|
|
|
|
|
|
CENTEX MATERIALS LLC |
|
|
TLCC GP LLC |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Arthur R. Zunker, Jr., Manager of the Guarantors
listed |
|
|
|
|
|
|
|
|
|
|
|
TLCC LP LLC |
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nicholas Stiren, Manager of the Guarantor listed |
|
|
INCREASED COMMITMENT SUPPLEMENT, Page 4
exv31w1
Exhibit 31.1
Certification of Periodic Report Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Steven R. Rowley, certify that:
1. I have reviewed this report on Form 10-Q of Eagle Materials Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of operations
and cash flows of the registrant as of, and for, the periods presented in this report;
4. The
registrants other certifying officer(s) and I are responsible for establishing and maintaining
disclosure controls and procedures [as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)] and
internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over
financial reporting to be designed under our supervision, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented
in this report our conclusions about the effectiveness of the disclosure controls and procedures,
as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial
reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth
fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the audit
committee of registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect the registrants
ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a
significant role in the registrants internal control over financial reporting.
Dated: February 6, 2006
|
|
|
|
|
By:
|
|
/s/ Steven R. Rowley |
|
|
|
|
Steven R. Rowley
President and Chief Executive Officer
|
|
|
exv31w2
Exhibit 31.2
Certification of Periodic Report Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Arthur R. Zunker, Jr., certify that:
1. I have reviewed this report on Form 10-Q of Eagle Materials Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of operations
and cash flows of the registrant as of, and for, the periods presented in this report;
4. The
registrants other certifying officer(s) and I are responsible for establishing and maintaining
disclosure controls and procedures [as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)] and
internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over
financial reporting to be designed under our supervision, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented
in this report our conclusions about the effectiveness of the disclosure controls and procedures,
as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial
reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth
fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the audit
committee of registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect the registrants
ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a
significant role in the registrants internal control over financial reporting.
Dated: February 6, 2006
|
|
|
|
|
By:
|
|
/s/ Arthur R. Zunker, Jr. |
|
|
|
|
Arthur R. Zunker, Jr.
Chief Financial Officer
|
|
|
exv32w1
Exhibit 32.1
Certification of Periodic Report Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report of Eagle Materials Inc. and subsidiaries (the
Company) on Form 10-Q for the period ended December 31, 2005 as filed with the Securities and
Exchange Commission on the date hereof (the Report), I, Steven R. Rowley, President and Chief
Executive Officer of the Company, certify, pursuant to 18 U.S.C. section 1350, as adopted pursuant
to section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:
|
(i) |
|
the Report fully complies with the requirements of section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and |
|
|
(ii) |
|
the information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company. |
Dated: February 6, 2006
|
|
|
|
|
By:
|
|
/s/ Steven R. Rowley |
|
|
|
|
Steven R. Rowley
President and Chief Executive Officer
|
|
|
exv32w2
Exhibit 32.2
Certification of Periodic Report Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report of Eagle Materials Inc. and subsidiaries (the
Company) on Form 10-Q for the period ended December 31, 2005 as filed with the Securities and
Exchange Commission on the date hereof (the Report), I, Arthur R. Zunker, Jr., Chief Financial
Officer of the Company, certify, pursuant to 18 U.S.C. section 1350, as adopted pursuant to section
906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:
|
(i) |
|
the Report fully complies with the requirements of section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and |
|
|
(ii) |
|
the information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company. |
Dated: February 6, 2006
|
|
|
|
|
By:
|
|
/s/ Arthur R. Zunker, Jr. |
|
|
|
|
Arthur R. Zunker, Jr.
Chief Financial Officer
|
|
|