<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Quarterly Period Ended September 30, 1999
[ ] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Commission File No. 1-7170
IMCO Recycling Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
75-2008280
(I.R.S. Employer Identification No.)
5215 North O'Connor Blvd., Suite 940
Central Tower at Williams Square
Irving, Texas 75039
(Address of principal executive offices) (Zip Code)
(972) 401-7200
(Registrant's telephone number, including area code)
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 X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the close of business on October 29, 1999.
Common Stock, $0.10 par value, 16,548,714
-----------------------------------------
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
- -------
IMCO RECYCLING INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
-------------- ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ 2,802 $ 6,075
Accounts receivable, net of allowance of $2,682 and $1,616 at
September 30, 1999 and December 31, 1998, respectively 120,703 84,446
Inventories 60,780 50,921
Deferred income taxes 2,407 4,093
Other current assets 5,881 6,302
-------------- ------------
Total Current Assets 192,573 151,837
Property and equipment, net 185,491 168,505
Excess of acquisition cost over the fair value of net assets acquired,
net of accumulated amortization of $10,140 and $7,156 at
September 30, 1999 and December 31, 1998, respectively 118,114 112,559
Investments in joint ventures 14,223 14,502
Other assets, net 6,733 9,155
-------------- ------------
$517,134 $456,558
============== ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 87,180 $ 67,089
Accrued liabilities 12,953 10,365
Current maturities of long-term debt 195 1,415
-------------- ------------
Total Current Liabilities 100,328 78,869
Long-term debt 194,992 168,700
Deferred income taxes 13,755 12,820
Other long-term liabilities 8,426 8,861
STOCKHOLDERS' EQUITY
Preferred stock; par value $.10; 8,000,000 shares authorized;
none issued - -
Common stock; par value $.10; 40,000,000 shares authorized;
17,108,620 issued at September 30, 1999; 17,048,585 issued
at December 31, 1998 1,711 1,705
Additional paid-in capital 106,837 106,046
Retained earnings 100,509 87,214
Accumulated other comprehensive loss from foreign currency
translation adjustments (2,124) (902)
Treasury stock, at cost; 575,906 shares at September 30, 1999;
530,539 shares at December 31, 1998 (7,300) (6,755)
-------------- ------------
Total Stockholders' Equity 199,633 187,308
-------------- ------------
$517,134 $456,558
============== ============
</TABLE>
Page 2
<PAGE>
IMCO RECYCLING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(in thousands, except per share data)
<TABLE>
<CAPTION>
For the three months For the nine months
ended September 30, ended September 30,
------------------------------ ------------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues $191,464 $153,651 $551,427 $405,372
Cost of sales 172,194 136,959 495,377 360,880
------------- ------------- ------------- -------------
Gross profits 19,270 16,692 56,050 44,492
Selling, general and administrative expense 7,530 5,828 20,465 14,013
Amortization expense 1,222 1,092 3,449 2,573
Interest expense 3,064 2,633 8,989 6,432
Interest and other income (275) (381) (826) (580)
Equity in earnings of affiliates (798) (429) (1,818) (1,457)
------------- ------------- ------------- -------------
Earnings before provision for income taxes and
minority interests 8,527 7,949 25,791 23,511
Provision for income taxes 2,830 2,942 9,291 8,679
------------- ------------- ------------- -------------
Earnings before minority interests 5,697 5,007 16,500 14,832
Minority interests, net of provision for income taxes 52 39 241 242
------------- ------------- ------------- -------------
Net earnings $ 5,645 $ 4,968 $ 16,259 $ 14,590
============= ============= ============= =============
Net earnings per common share:
Basic $ 0.34 $ 0.29 $ 0.99 $ 0.87
Diluted $ 0.34 $ 0.29 $ 0.98 $ 0.87
Weighted average shares outstanding:
Basic 16,512 16,904 16,495 16,685
Diluted 16,682 16,988 16,628 16,841
Dividends declared per common share $ 0.06 $ 0.05 $ 0.18 $ 0.15
</TABLE>
Page 3
<PAGE>
IMCO RECYCLING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
<TABLE>
<CAPTION>
For the nine months ended
September 30,
---------------------------------
1999 1998
-------------- --------------
<S> <C> <C>
OPERATING ACTIVITIES
Net earnings $ 16,259 $ 14,590
Depreciation and amortization 19,927 16,524
Provision (benefit) for deferred income taxes 2,621 (1,550)
Equity in earnings of affiliates (1,818) (1,456)
Other noncash charges 1,815 1,400
Changes in operating assets and liabilities:
Accounts receivable (34,716) 850
Inventories (7,113) 2,234
Other current assets 797 (1,102)
Accounts payable and accrued liabilities 20,385 2,706
-------------- --------------
Net cash provided from operating activities 18,157 34,196
INVESTING ACTIVITIES
Payments for property and equipment (20,617) (25,338)
Acquisitions, net of cash acquired (21,480) (59,502)
Other (899) 33
-------------- --------------
Net cash used by investing activities (42,996) (84,807)
FINANCING ACTIVITIES
Net proceeds from long-term revolver 28,000 58,775
Proceeds from issuance of long-term debt 679 2,121
Principal payments of long-term debt (3,609) (835)
Dividends paid (2,963) (2,511)
Purchases of treasury stock (649) (1,438)
Other 164 (149)
-------------- --------------
Net cash provided from financing activities 21,622 55,963
-------------- --------------
Effect of exchange rate differences on cash and cash equivalents (56) 65
Net (decrease) increase in cash and cash equivalents (3,273) 5,417
Cash and cash equivalents at January 1 6,075 405
-------------- --------------
Cash and cash equivalents at September 30 $ 2,802 $ 5,822
============== ==============
SUPPLEMENTARY INFORMATION
Cash payments for interest $ 9,135 $ 6,375
Cash payments for income taxes $ 7,408 $ 8,292
Fair value of the shares and warrants issued in the acquisition of
U. S. Zinc Corporation - $ 8,500
</TABLE>
Page 4
<PAGE>
IMCO RECYCLING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
SEPTEMBER 30, 1999
(dollars in tables are in thousands, except per share data)
NOTE A - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three and nine month periods ended
September 30, 1999 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1999. The accompanying financial
statements include the accounts of IMCO Recycling Inc. and all of its
subsidiaries (the "Company"). All significant intercompany accounts and
transactions have been eliminated. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1998.
Certain reclassifications have been made to prior year statements to conform to
the current year presentation.
NOTE B - INVENTORIES
The components of inventories are:
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
-------------- --------------
<S> <C> <C>
Finished goods $27,530 $26,668
Raw materials 31,160 23,012
Supplies 2,090 1,241
-------------- --------------
$60,780 $50,921
============== ==============
</TABLE>
NOTE C - LONG-TERM DEBT
In February 1999, the Company borrowed, under its long-term revolving credit
facility, approximately $22,000,000 to fund the acquisitions of substantially
all of the assets of an aluminum alloying facility located in Shelbyville,
Tennessee and a zinc oxide production facility located in Clarksville,
Tennessee.
Page 5
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At September 30, 1999 the Company had $180,000,000 in indebtedness outstanding
under its long-term revolving credit facility.
On October 25, 1999, the Company amended and restated the terms of its long-term
credit facility with its lenders (the "Second Amended and Restated Credit
Agreement"). The Second Amended and Restated Credit Agreement provides for a
credit facility of up to $250,000,000. The Company has the option to request
increases to the revolving credit commitment of up to $50,000,000 in the
aggregate, and, subject to approval by the lenders, these additional commitments
could increase the revolving credit facility to $300,000,000. The Second
Amended and Restated Credit Agreement allows the Company to issue up to
$125,000,000 in convertible subordinated debt, subject to certain terms and
conditions. In addition, up to $12,000,000 available under the Second Amended
and Restated Credit Agreement may be used, by the Company, for letters of
credit. The entire balance of debt outstanding under the Second Amended and
Restated Credit Agreement will mature in December 2003. Indebtedness under the
Second Amended and Restated Credit Agreement bears interest, at the Company's
option, at fluctuating interest rates based upon an alternate base rate (which
may be the prime rate), or a rate based upon the applicable LIBOR rate plus a
credit margin which is based upon the Company's ratio of total debt to total
capitalization. In addition, the Company must pay a commitment fee for
unborrowed amounts available under the revolving facility at a rate based upon
the Company's ratio of debt to total capitalization. As of October 25, 1999, the
Company had $194,000,000 of indebtedness outstanding under the Second Amended
and Restated Credit Agreement and had approximately $54,800,000 available for
borrowing.
The Second Amended and Restated Credit Agreement imposes certain restrictions on
the Company, including: (i) a prohibition against incurring certain additional
indebtedness, (ii) maintenance of certain financial ratios, (iii) limitations on
dividends on and repurchases of shares of capital stock, and (iv) limitations on
capital expenditures, investments and acquisitions, except for mergers,
consolidations and acquisitions in any fiscal year having an aggregate
consideration of up to $75,000,000. The annual limitations for cash dividends
on capital stock are as follows: $6,000,000 per year for 1999 and 2000, and
$8,000,000 for each year after 2000. In addition, the Second Amended and
Restated Credit Agreement authorizes repurchases of up to 398,900 shares of the
Company's common stock not to exceed a purchase price of $15,000,000. The
indebtedness under the Second Amended and Restated Credit Agreement is secured
by substantially all of the Company's personal property (including inventories,
accounts receivable and equipment) and a first lien mortgage on certain real
property related to seven of the Company's operating plants, as well as a pledge
of the capital stock of certain of the Company's subsidiaries.
Page 6
<PAGE>
NOTE D - NET EARNINGS PER SHARE
The following table sets forth the reconciliation between weighted average
shares used for calculating basic and diluted earnings per share:
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
----------------------------- -----------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Weighted average shares outstanding
for basic earnings per share 16,512 16,904 16,495 16,685
Effect of employee stock options 170 84 133 156
------------- ------------- ------------- -------------
Weighted average shares outstanding
for diluted earnings per share 16,682 16,988 16,628 16,841
============= ============= ============= =============
</TABLE>
NOTE E - OPERATIONS
The Company's operations, like those of other basic industries, are subject to
federal, state, local and foreign laws, regulations and ordinances that (1)
govern activities or operations that may have adverse environmental effects,
such as discharges to air and water, as well as handling and disposal practices
for solid and hazardous wastes and (2) impose liability for costs of cleaning
up, and certain damages resulting from past spills, disposals or other releases
of hazardous substances (together, "Environmental Laws"). It is possible that
more rigorous Environmental Laws will be enacted that could require the Company
to make substantial expenditures in addition to those referred to in this Form
10-Q.
From time to time, operations of the Company have resulted or may result in
certain noncompliance with applicable requirements under Environmental Laws.
However, the Company believes that any such noncompliance under such
Environmental Laws would not have a material adverse effect on the Company's
financial position or results of operations.
The Illinois Environmental Protection Agency ("IEPA") has notified the Company
that two of the Company's zinc subsidiaries are potentially responsible parties
("PRP") pursuant to the Illinois Environmental Protection Act for the cleanup of
contamination at a site in Marion County, Illinois to which these subsidiaries,
among others, in the past sent zinc oxide for processing and resale. These
subsidiaries have joined a group of PRPs that is planning to negotiate with the
IEPA regarding the cleanup of the site. Although the site has not been fully
investigated and final cleanup costs have not yet been determined, based on
current cost estimates and information regarding the amount and type of
materials sent to the site by the subsidiaries, the Company does not believe,
while
Page 7
<PAGE>
there can be no assurance, that its potential liability (if any) at this site
will have a material adverse effect on its financial position or results of
operations.
NOTE F - OTHER COMPREHENSIVE INCOME
As of September 30, 1999 the Company's foreign currency translation adjustment
increased to $2,124,000 from $902,000 as of December 31, 1998. This resulted in
other comprehensive income of $1,035,000 for the three month period ended
September 30, 1999 and a loss of $1,222,000 for the nine month period ended
September 30, 1999. Foreign currency translation adjustments resulted in income
of $154,000 for the three month period and $291,000 for the nine month period
ended September 30, 1998. This resulted in total comprehensive income of
$6,680,000 for the three month period ended September 30, 1999 and $15,037,000
for the nine month period ended September 30, 1999, compared to $5,122,000 and
$14,881,000, respectively, for the same periods in 1998.
NOTE G - NEW ACCOUNTING PRONOUNCEMENTS
The Company adopted SOP 98-1, Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use, effective January 1, 1999. The adoption
of SOP 98-1 did not have a material impact on the Company's results of
operations for the three and nine month periods ended September 30, 1999.
In July 1999, the Financial Accounting Standards Board delayed the effective
date of Statement No. 133, "Accounting for Derivative Instruments and Hedging
Activities," for one year to fiscal years beginning after June 15, 2000. The
Company plans to adopt the statement effective January 1, 2001. The Company is
currently evaluating the impact of Statement No. 133.
NOTE H - SEGMENT REPORTING
The Company has two reportable segments: aluminum and zinc. The aluminum
segment represents all of the Company's aluminum melting, processing, alloying,
brokering and salt cake recovery activities, including investments in joint
ventures. In addition, this segment includes magnesium melting activities which
represent less than 1% of consolidated revenues and production. The Company's
zinc segment represents all of the Company's zinc melting, processing and
brokering activities.
Page 8
<PAGE>
There had been no material change in the Company's segment classifications as of
September 30, 1999 as compared to December 31, 1998.
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
----------------------------- -----------------------------
1999 1998 1999 1998
------------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues:
Aluminum $143,502 $109,768 $412,913 $354,903
Zinc 47,962 43,883 138,550 50,469
Intersegment elimination - - (36) -
------------- ------------ ------------ ------------
Total revenues $191,464 $153,651 $551,427 $405,372
============= ============ ============ ============
Income:
Aluminum $14,306 $12,879 $42,892 $40,518
Zinc 5,269 3,594 12,443 3,938
------------- ------------ ------------ ------------
Total segment income 19,575 16,473 55,335 44,456
Unallocated amounts:
General and administrative expense 6,882 5,180 17,776 12,520
Amortization Expense 1,222 1,092 3,449 2,573
Interest expense 3,064 2,633 8,989 6,432
Interest and other income (120) (381) (670) (580)
------------- ------------ ------------ ------------
Earnings before provision for income
taxes and minority interests $ 8,527 $ 7,949 $25,791 $23,511
============= ============ ============ ============
</TABLE>
Page 9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
- ------- CONDITION AND RESULTS OF OPERATIONS
Most of the Company's processing consists of aluminum tolled for its customers.
Tolling revenues reflect only the processing cost and the Company's profit
margin. To a lesser but increasing extent, the Company's processing also
consists of the processing, recovery and specialty alloying of aluminum and zinc
metal and the production of other value-added zinc products for sale by the
Company. The revenues from these sales transactions include the cost of the
metal, as well as the processing cost and the Company's profit margin.
Accordingly, tolling business produces lower revenues and costs of sales than
does the product sales business. Variations in the mix between these two types
of transactions could cause revenue amounts to change significantly from period
to period while not significantly affecting gross profit. As a result, the
Company considers processing volume to be a more important determinant of
performance than revenues.
The companies recently acquired by the Company (see "ACQUISITIONS" below) are
primarily engaged in product sales activities as opposed to tolling; therefore,
the Company has experienced higher levels of product sales relative to tolling
in 1999 than in prior periods. This higher level of sales has also increased
the Company's working capital requirements and, as a result, will subject the
Company to the additional risks associated with price fluctuations in the zinc
and aluminum commodity markets.
The following table shows total pounds processed, the percentage of total pounds
processed represented by tolled metal, total revenues and total gross profits
(in thousands, except percentages):
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
----------------------------------- ------------------------------------
1999 1998 1999 1998
--------------- --------------- --------------- ----------------
<S> <C> <C> <C> <C>
Pounds processed 717,550 666,255 2,114,976 1,836,847
Percentage of pounds tolled 62% 66% 61% 70%
Revenues $191,464 $153,651 $551,427 $405,372
Gross profits $ 19,270 $ 16,692 $ 56,050 $ 44,492
</TABLE>
ACQUISITIONS
In July 1998, the Company completed the acquisition of U. S. Zinc Corporation
("U. S. Zinc") for an aggregate purchase price of approximately $72,000,000.
In February 1999, the Company acquired substantially all of the assets of an
aluminum alloying facility located in Shelbyville, Tennessee from Alcan Aluminum
Corporation for approximately $11,000,000 in cash (not including acquisition
costs). Also in February
Page 10
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1999, the Company acquired, through its wholly-owned subsidiary, Midwest Zinc
Corporation, substantially all of the assets of a zinc oxide production facility
located in Clarksville, Tennessee from North American Oxide, LLC for
approximately $11,000,000 in cash (not including acquisition costs). Both the
acquisitions were accounted for using the purchase method of accounting, and
their results of operations are included herein since their dates of
acquisition.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1998 AND NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO NINE MONTHS ENDED
SEPTEMBER 30, 1998
PRODUCTION. For the three and nine month periods ended September 30, 1999, the
- -----------
Company melted 8% and 15%, respectively, more metal than it did during the same
periods in 1998. The aluminum and zinc segments accounted for 87% and 13%,
respectively, of the overall production increase for the three month period and
60% and 40%, respectively, of the overall production increase for the nine month
period. Tolling activity for the three and nine month periods ended September
30, 1999 represented 62% and 61%, respectively, of total pounds processed,
compared to 66% and 70%, respectively, for the same periods in 1998. The
Company currently believes the percentage of tolling business in 1999 will more
accurately reflect the levels which can be expected in future periods.
The following table shows the total pounds processed and the percentage tolled
for the aluminum and zinc segments (in thousands, except percentages):
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
----------------------------- ------------------------------
1999 1998 1999 1998
------------- ------------ ------------- -------------
<S> <C> <C> <C> <C>
Pounds Processed:
Aluminum 650,906 606,047 1,921,771 1,755,140
Zinc 66,644 60,208 193,205 81,707
------------- ------------ ------------- -------------
Total Pounds Processed 717,550 666,255 2,114,976 1,836,847
============= ============ ============= =============
Percentage Tolled:
Aluminum 67% 71% 66% 72%
Zinc 5% 9% 5% 20%
Total Percentage Tolled 62% 66% 61% 70%
</TABLE>
Page 11
<PAGE>
ALUMINUM PRODUCTION: For the three and nine month periods ended September 30,
1999, the Company melted 7% and 9%, respectively, more aluminum than it did
during the same periods in 1998. The increase in aluminum production for the
third quarter was primarily due to the following: (1) a significant increase at
the Company's Morgantown, Kentucky facility (which was expanded late in the
third quarter of 1998), (2) processing from the Shelbyville, Tennessee facility
(acquired in February 1999), (3) higher production at the Swansea, Wales
facility (which is now operating near its capacity after beginning processing in
late 1997) and (4) increases in production at the Post Falls, Idaho and
Wendover, Utah facilities due to an increase in scrap supply. The Morgantown,
Kentucky, Shelbyville, Tennessee and Swansea, Wales facilities accounted for
almost all of the increase in aluminum production for the nine month period
ended September 30, 1999. The increases in aluminum production for both the
three and nine month periods were partially offset by lower volumes at two of
the Company's facilities located in east Tennessee due to a lack of supply of
used beverage cans available for recycling from a large customer. The decrease
in aluminum percentage tolled is primarily due to the acquisition of the
Shelbyville, Tennessee facility, the production of which is dedicated primarily
for products sales serving the transportation market.
ZINC PRODUCTION: For the three and nine month periods ended September 30, 1999,
the Company melted 11% and 136%, respectively, more zinc than it did during the
same periods in 1998. The February 1999 acquisition of the Clarksville,
Tennessee facility accounted for virtually all of the increase in zinc
production for the third quarter, and the acquisition of U.S. Zinc accounted for
virtually all of the increase in zinc production for the nine month period.
The decrease in zinc percentage tolled is primarily due to the Company's 1999
and 1998 acquisitions.
REVENUES. For the three and nine month periods ended September 30, 1999, the
- ---------
Company's consolidated revenues increased 25% and 36%, respectively, compared to
the same periods in 1998. The aluminum and zinc segments accounted for 89% and
11%, respectively, of the overall revenue increase for the three month period
and 40% and 60%, respectively, of the overall revenue increase for the nine
month period.
Increased product sales relative to tolling transactions expose the Company to a
greater degree of market risk because of fluctuations in the price of scrap
metal which the Company must buy as raw material and fluctuations in the then-
prevailing aluminum and zinc market prices at which the Company sells the
resulting processed metal. The Company's aluminum specialty alloying
activities, which serve the transportation market, and the Company's zinc
segment, primarily consist of product sale business.
Page 12
<PAGE>
The following table shows the total revenues for the aluminum and zinc segments
(in thousands):
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
---------------------------- ------------------------------
1999 1998 1999 1998
------------- ------------ ------------- -------------
<S> <C> <C> <C> <C>
Revenues:
Aluminum $143,502 $109,768 $412,913 $354,903
Zinc 47,962 43,883 138,550 50,469
Intersegment elimination - - (36) -
------------- ------------ ------------- -------------
Total Revenues $191,464 $153,651 $551,427 $405,372
============= ============ ============= =============
</TABLE>
ALUMINUM REVENUES: For the three and nine month periods ended September 30,
1999, the Company's aluminum revenues increased 31% and 16%, respectively,
compared to the same periods in 1998. For both the three and nine month
periods, aluminum revenues increased due to the combination of (1) higher
aluminum product sale prices, (2) higher aluminum production volumes as a result
of a facility expansion and an acquisition (see "ALUMINUM PRODUCTION" above) and
(3) a decrease in the proportion of volumes from tolling versus product sales
(see "ALUMINUM PRODUCTION" above). As discussed earlier, increased product
sales generally result in a higher increase in revenues than a similar increase
in tolling business.
ZINC REVENUES: For the three and nine month periods ended September 30, 1999,
the Company's zinc revenues increased 9% and 175%, respectively, compared to the
same periods in 1998. For both the three and nine month periods, zinc revenues
increased primarily due to the combination of higher zinc production volumes,
with the 1998 and 1999 acquisitions (see "ZINC PRODUCTION" above), and higher
zinc product sale prices.
GROSS PROFITS. For the three and nine month periods ended September 30, 1999,
- --------------
the Company's consolidated gross profits increased 15% and 26%, respectively,
compared to the same periods in 1998, which increase was primarily attributable
to a proportionate increase in total segment income for the three and nine month
periods ended September 30, 1999, of 19% and 24%, respectively. The aluminum and
zinc segments accounted for 46% and 54%, respectively, of the overall segment
income increase for the third quarter and 22% and 78%, respectively, of the
overall segment income increase for the nine month period ended September 30,
1999.
Page 13
<PAGE>
The following table shows the total income for the aluminum and zinc segments
and a reconciliation of segment income to the Company's consolidated gross
profits (in thousands):
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
---------------------------- ----------------------------
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Segment Income:
Aluminum $14,306 $12,879 $42,892 $40,518
Zinc 5,269 3,594 12,443 3,938
------------ ------------ ------------ ------------
Total segment income 19,575 16,473 55,335 44,456
Items not included in gross profits:
Plant selling expense 648 648 2,689 1,493
Equity in earnings of affiliates (798) (429) (1,818) (1,457)
Other income (155) - (156) -
------------ ------------ ------------ ------------
Gross Profits $19,270 $16,692 $56,050 $44,492
============ ============ ============ ============
</TABLE>
ALUMINUM INCOME: For the three and nine month periods ended September 30, 1999,
the Company's aluminum income increased 11% and 6%, respectively, compared to
the same periods in 1998. The increases for both the three and nine month
periods were primarily due to higher overall aluminum production volumes (see
"ALUMINUM PRODUCTION" above). For the third quarter, the relative increase in
aluminum income was greater than the increase in aluminum processing volumes,
principally due to efficiencies gained at the Company's Morgantown, Kentucky
facility. The increase in aluminum income was partially offset by lower margins
and operating rates at certain facilities (those principally serving the
packaging market) caused by the continuing narrow spreads between primary
aluminum prices and certain scrap aluminum prices.
ZINC INCOME: For the three and nine month periods ended September 30, 1999, the
Company's zinc income increased 47% and 216%, respectively, compared to the same
periods in 1998. The increases for both the three and nine month periods were
primarily due to the higher overall zinc production volumes (see "ZINC
PRODUCTION" above). In addition, the relative increase in zinc income was
greater than the increase in zinc processing volumes due to higher zinc product
sale prices and benefits from integrating the Company's previously owned zinc
business with the acquired U.S. Zinc and Clarksville, Tennessee facilities.
SG&A EXPENSES. Selling, general and administrative expenses for the three month
- --------------
periods ended September 30, 1999 and 1998 were $7,530,000 and $5,828,000,
respectively, an increase of 29%. Selling, general and administrative expenses
for the
Page 14
<PAGE>
nine month periods ended September 30, 1999 and 1998 were $20,465,000 and
$14,013,000, respectively, an increase of 46%. The increase for both the three
and nine month periods ended September 30, 1999, is primarily due to higher
employee costs attributable to the acquisitions of the U.S. Zinc and the
Shelbyville, Tennessee and Clarksville, Tennessee facilities.
AMORTIZATION EXPENSE. Amortization expense for the three month periods ended
- ---------------------
September 30, 1999 and 1998 was $1,222,000 and $1,092,000 respectively, an
increase of 12%. Amortization expense for the nine month periods ended
September 30, 1999 and 1998 was $3,449,000 and $2,573,000, respectively, an
increase of 34%. The increase for both the three and nine month periods ended
September 30, 1999, is due almost entirely to amortization of additional
goodwill recorded as a result of the U.S. Zinc, Shelbyville, Tennessee and
Clarksville, Tennessee acquisitions (see "ACQUISITIONS" above).
INTEREST EXPENSE. Interest expense for the three month periods ended September
- -----------------
30, 1999 and 1998 was $3,064,000 and $2,633,000, respectively, an increase of
16%. Interest expense was $8,989,000 for the first nine months of 1999, or 40%
higher than $6,432,000 for the first nine months of 1998. The increases for
both the three month and nine month periods ended September 30, 1999 are the
result of higher amounts of debt outstanding in 1999 compared to 1998, primarily
resulting from the 1998 and 1999 acquisitions (see "LIQUIDITY AND CAPITAL
RESOURCES" below).
NET EARNINGS. Net earnings increased 14% to $5,645,000 for the three month
- -------------
period ended September 30, 1999 compared to $4,968,000 for the same period in
1998 and increased 11% to $16,259,000 for the first nine months of 1999 compared
to $14,590,000 for the same period in 1998. The increase was primarily the
result of improved performance by the zinc segment as well as increased
processing volume provided by new plant construction, expansions and
acquisitions completed in 1998 and 1999. Partially offsetting the volume
increase was an increase in interest expense, amortization expense and selling,
general and administration expense due to a higher level of borrowing, the
effects of recent acquisitions and the operation of more production facilities,
respectively. The Company's effective income tax rate decreased to 33% from 37%
for the third quarter of 1999 and 1998, respectively, and decreased to 36% from
37% for the nine month periods ended September 30, 1999 and 1998, respectively,
due to adjustments recorded in the third quarter of 1999, relating to lower than
anticipated 1998 federal income taxes owed.
LIQUIDITY AND CAPITAL RESOURCES
CASH FLOWS FROM OPERATIONS. Operations provided $18,157,000 and $34,196,000 of
- --------------------------
cash during the first nine months of 1999 and 1998, respectively. Changes in
operating assets and liabilities utilized $20,647,000 of cash for the first nine
months of 1999 compared to generating cash of $4,688,000 for the same period in
1998. The change in usage of net operating assets and liabilities was primarily
due to the
Page 15
<PAGE>
increase in revenues in 1999, as discussed above, which resulted in increases in
receivables and inventories. The change in usage of net operating assets and
liabilities was partially offset by higher net earnings in 1999 of $16,259,000
compared to $14,590,000 for 1998, and higher depreciation and amortization of
$19,927,000 in 1999 compared to $16,524,000 in 1998. Accounts receivable,
inventories and accounts payable were at higher levels at September 30, 1999
compared to December 31, 1998, due primarily to increased product sales during
1999.
CASH FLOWS FROM INVESTING ACTIVITIES. During the nine months ended September
- ------------------------------------
30, 1999, net cash used by investing activities was $42,996,000 compared to
$84,807,000 for the same period in 1998. During the first quarter of 1999, the
Company spent approximately $21,600,000 (net of cash acquired) on the
acquisitions of the Shelbyville and Clarksville, Tennessee facilities. During
the third quarter of 1998, the Company spent approximately $59,500,000 (net of
cash acquired) on the acquisition of the U. S. Zinc business (see "ACQUISITIONS"
above). In addition, the Company's total payments for property, plant and
equipment in the first nine months of 1999 decreased to $20,617,000, compared to
$25,338,000 spent in the first nine months of 1998. Capital expenditures for
property, plant and equipment in 1999 are expected to be approximately
$35,000,000. Major 1999 projects include the installation of an Enterprise
Resource Planning (ERP) software system, installation of new furnaces at the
Millington, Tennessee and Uhrichsville, Ohio facilities and the construction of
a new aluminum alloying facility near Saginaw, Michigan.
CASH FLOWS FROM FINANCING ACTIVITIES. Net cash provided by financing activities
- ------------------------------------
was $21,622,000 for the nine months ended September 30, 1999, compared to
$55,963,000 for the same period of 1998. In the first nine months of 1999, the
Company borrowed $28,000,000 under its revolving line of credit, most of which
was used in the acquisitions of the Shelbyville and Clarksville, Tennessee
facilities (see "ACQUISITIONS" above), and the remainder used to finance
additional working capital requirements. In the nine month period ended
September 30, 1998 the Company had net borrowings of $58,775,000 on its long-
term revolving credit facility, the majority of which was used to fund the cash
portion of the acquisition of U.S. Zinc and to repay a portion of U.S. Zinc's
outstanding indebtedness under its working capital line of credit facility. At
September 30, 1999 the Company had $180,000,000 in indebtedness outstanding
under its long-term revolving credit facility. In addition, there were standby
letters of credit outstanding with several banks totaling $2,245,000.
Financing activities also included cash payments of $2,963,000 in dividends for
the first nine months of 1999 compared to $2,511,000 for the same period in
1998. In addition, for the nine months ended September 30, 1999 and 1998,
$649,000 and $1,438,000, respectively, was used to purchase 55,000 and 126,800,
respectively, shares of common stock in open market transactions.
On October 25, 1999, the Company amended and restated the terms of its long-term
credit facility with its lenders (the "Second Amended and Restated Credit
Agreement").
Page 16
<PAGE>
The Second Amended and Restated Credit Agreement provides for a credit facility
of up to $250,000,000. The Company has the option to request increases to the
revolving credit commitment of up to $50,000,000 in the aggregate, and, subject
to approval by the lenders, these additional commitments could increase the
revolving credit facility to $300,000,000. The Second Amended and Restated
Credit Agreement allows the Company to issue up to $125,000,000 in convertible
subordinated debt, subject to certain terms and conditions. In addition, up to
$12,000,000 available under the Second Amended and Restated Credit Agreement may
be used, by the Company, for letters of credit. The entire balance of debt
outstanding under the Second Amended and Restated Credit Agreement will mature
in December 2003. Indebtedness under the Second Amended and Restated Credit
Agreement bears interest, at the Company's option, at fluctuating interest rates
based upon an alternate base rate (which may be the prime rate), or a rate based
upon the applicable LIBOR rate plus a credit margin which is based upon the
Company's ratio of total debt to total capitalization. In addition, the Company
must pay a commitment fee for unborrowed amounts available under the revolving
facility at a rate based upon the Company's ratio of debt to total
capitalization.
The Second Amended and Restated Credit Agreement imposes certain restrictions on
the Company, including: (i) a prohibition against incurring certain additional
indebtedness, (ii) maintenance of certain financial ratios, (iii) limitations on
dividends on and repurchases of shares of capital stock, and (iv) limitations on
capital expenditures, investments and acquisitions, except for mergers,
consolidations and acquisitions in any fiscal year having an aggregate
consideration of up to $75,000,000. The annual limitations for cash dividends
on capital stock are as follows: $6,000,000 per year for 1999 and 2000, and
$8,000,000 for each year after 2000. In addition, the Second Amended and
Restated Credit Agreement authorizes repurchases of up to 398,900 shares of the
Company's common stock not to exceed a purchase price of $15,000,000. The
indebtedness under the Second Amended and Restated Credit Agreement is secured
by substantially all of the Company's personal property (including inventories,
accounts receivable and equipment) and a first lien mortgage on certain real
property related to seven of the Company's operating plants, as well as a pledge
of the capital stock of certain of the Company's subsidiaries.
As of October 25, 1999, the Company had $194,000,000 of indebtedness outstanding
under the Second Amended and Restated Credit Agreement and had approximately
$54,800,000 available for borrowing. The Company believes that its cash on
hand, the availability of funds under its revolving line of credit and its
anticipated internally generated funds will be sufficient to fund its current
needs, including its expected capital spending plans. The Company has
experienced and expects to continue to experience substantial capital funding
requirements for its new facilities, potential acquisitions and capital and
environmental improvement programs.
Page 17
<PAGE>
ENVIRONMENTAL
The Company's operations, like those of other basic industries, are subject to
federal, state, local and foreign laws, regulations and ordinances that (1)
govern activities or operations that may have adverse environmental effects,
such as discharges to air and water, as well as handling and disposal practices
for solid and hazardous wastes and (2) impose liability for costs of cleaning
up, and certain damages resulting from past spills, disposals or other releases
of hazardous substances (together, "Environmental Laws"). It is possible that
more rigorous Environmental Laws will be enacted that could require the Company
to make substantial expenditures in addition to those referred to in this Form
10-Q and in other filings made by the Company.
From time to time, operations of the Company have resulted or may result in
certain noncompliance with applicable requirements under such Environmental
Laws. However, the Company believes that any such noncompliance under such
Environmental Laws would not have a material adverse effect on the Company's
financial position or results of operations.
The Illinois Environmental Protection Agency ("IEPA") has notified the Company
that two of the Company's zinc subsidiaries are potentially responsible parties
("PRP") pursuant to the Illinois Environmental Protection Act for the cleanup of
contamination at a site in Marion County, Illinois to which these subsidiaries,
among others, in the past sent zinc oxide for processing and resale. These
subsidiaries have joined a group of PRPs that is planning to negotiate with the
IEPA regarding the cleanup of the site. Although the site has not been fully
investigated and final cleanup costs have not yet been determined, based on
current cost estimates and information regarding the amount and type of
materials sent to the site by the subsidiaries, the Company does not believe,
while there can be no assurance, that its potential liability (if any) at this
site will have a material adverse effect on its financial position or results of
operations.
YEAR 2000 COMPLIANCE
The Company relies on software and hardware technology for its information and
data processing and for the delivery of its services and products. The Company
has implemented a comprehensive plan to address potential Year 2000 compliance
problems resulting from the computer programs written utilizing two digits,
instead of four, to represent the year. The Company's embedded systems (or non-
information technology systems) include office equipment such as phone and
voicemail systems, fax machines, copiers, and postage machines, as well as
environmental and manufacturing control systems at its plants. These
environmental and manufacturing systems at Company plant locations consist of
items such as scales, process controllers, programmable logic controllers,
adjustable frequency drives, and radiation detection systems.
Page 18
<PAGE>
The Company has completed a physical inventory of its information technology
computer hardware and software and its embedded systems at each facility. The
Company's assessment phase entailed obtaining manufacturer and developer Year
2000 compliance information about embedded systems and software.
All personal computer hardware compliance testing and remediation has been
completed. Testing of embedded systems and desktop application software is
substantially complete and is expected to be complete by late November 1999.
The Company believes that its primary operations and accounting software are
Year 2000 compliant. Because of the Company's recent growth and the need to
integrate its financial and operating systems, the Company has implemented the
financial portion of an enterprise-wide information technology system, which has
been tested to be Year 2000 compliant. This integrated system enables the
Company to gather more timely and uniform operating and financial information.
The Company identified potential Year 2000 compliance issues with certain of its
subsidiaries and a joint venture partner and is expected to complete the
software and hardware upgrades and/or installations necessary to achieve Year
2000 compliance by early December 1999.
The Company's cumulative Year 2000 project expenditures have been immaterial to
date, and based upon results of current testing, the estimated remaining Year
2000 costs are not expected to be material to the Company's results of
operations or financial position. The Company currently believes that it will
be able to manage its total Year 2000 transition without any material adverse
effect on its business, financial position or results of operations.
The Company cannot presently determine the impact on its customers and suppliers
in the event that they may not be Year 2000 compliant, and in such event,
whether such noncompliance may have a material adverse effect on the Company's
results of operations or financial position. The Company has contacted its
customers and suppliers (through written questionnaires and verbal inquiries) to
determine the status of their respective Year 2000 compliance programs and is
currently reviewing the responses and taking additional actions, such as further
inquiries and personal follow up interviews, on an as needed basis.
An unexpected or widespread Year 2000 problem involving the Company and/or its
suppliers and customers could result in a significant interruption to the
Company's normal business operations or activities, which could have a material
adverse effect on the Company's business reputation, results of operations and
financial position. The Company believes that it has prepared adequate Year
2000 contingency plans with respect to its internal information technology
systems and its embedded technology; however, the Company does not have a
detailed contingency plan in place to deal with
Page 19
<PAGE>
unexpected or widespread Year 2000 problems which may arise from external
sources, including disruptions of its fuel and energy sources.
CAUTIONARY STATEMENT FOR PURPOSES OF FORWARD-LOOKING STATEMENTS
Certain information contained in this ITEM 2. "MANAGEMENT'S DISCUSSION AND
-------
ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" (as well as certain
oral statements made by or on behalf of the Company) may be deemed to be
forward-looking statements within the meaning of The Private Securities
Litigation Reform Act of 1995 and are subject to the "Safe Harbor" provisions in
that enacted legislation. This information includes, without limitation,
statements concerning future capacity, volumes, revenues, earnings, costs,
margins and expenses; the ability of the Company to be able to continue to grow
its business at recent rates of growth; the expected effects of strikes or work
stoppages at Company or customer facilities; future acquisitions or corporate
combinations; expected effects of recent acquisitions; future prices for metals;
projected completion dates and anticipated technological advances; prospects for
the Company's joint venture partners to purchase a portion of the Company's
joint venture interests; future (or extensions of existing) long-term supply
contracts with its customers; the outcome of and any liabilities resulting from
any claims, investigations or proceedings against the Company or its
subsidiaries; future levels of dividends (if any); the future mix of business
(product sales vs. tolling); future costs and asset recoveries; future
operations, demand and industry conditions; future capital expenditures and
future financial condition; becoming "Year 2000" compliant; and the impact of
the "Year 2000" transition on the operations, results of operations and
financial condition of the Company, its customers and suppliers. When used in
or incorporated by reference into this Quarterly Report on Form 10-Q, the words
"anticipate," "estimate," "expect," "may," "project" and similar expressions are
intended to be among the statements that identify forward-looking statements.
These forward-looking statements are based on current expectations and involve a
number of risks and uncertainties. Although the Company believes that the
expectations reflected in such forward-looking statements are reasonable, it can
give no assurance that such expectations will prove to be correct. Important
factors that could affect the Company's actual results and cause actual results
to differ materially from those results that might be projected, forecasted,
estimated or budgeted by the Company in these forward-looking statements
include, but are not limited to, the following: fluctuations in operating levels
at the Company's facilities, the mix of product sales business as opposed to
tolling business, retention and financial condition of major customers, effects
of future costs, collectibility of receivables, the inherent unpredictability of
adversarial or administrative proceedings, effects of environmental and other
governmental regulations, currency exchange rate fluctuations, trends in the
Company's key markets, the price of and supply and demand for aluminum and zinc
(and their derivatives) on world markets, the effect of any continued shortage
in used aluminum beverage containers and can scrap at certain facilities, a
continuation of reduced spreads between primary aluminum prices
Page 20
<PAGE>
and certain aluminum scrap prices, business conditions and growth in the
aluminum and zinc industries and aluminum and zinc recycling industries, the
extent of "Year 2000" compliance by the Company's suppliers and customers and
the Company's information and embedded technology, and future levels and timing
of capital expenditures.
These statements are further qualified by the following:
* Estimates of future operating rates at the Company's plants are based on
current expectations by management of the Company of future levels of volumes
and prices for the Company's services or metal, and are subject to
fluctuations in customer demand for the Company's services and prevailing
conditions in the metal markets, as well as certain components of the
Company's cost of operations, including energy and labor costs. Many of the
factors affecting revenues and costs are outside of the control of the
Company, including weather conditions, general economic and financial market
conditions, and governmental regulation and factors involved in
administrative and other proceedings. The future mix of product sales vs.
tolling business is dependent on customers' needs and overall demand, world
and U.S. market conditions then prevailing in the respective metal markets,
and the operating levels at the Company's various facilities at the relevant
time.
* The price of primary aluminum, zinc and other metals is subject to worldwide
market forces of supply and demand and other influences. Prices can be
volatile, which could affect the Company's product sales metals business. The
Company's use of contractual arrangements including long-term agreements and
forward contracts, may reduce the Company's exposure to this volatility but
does not eliminate it. Lower market prices for primary metals may adversely
affect the demand for the Company's recycled metals.
* The markets for most aluminum and zinc products are highly competitive. The
major primary aluminum producers are larger than the Company in terms of
total assets and operations and have greater financial resources. In
addition, aluminum competes with other materials such as steel, vinyl,
plastics and glass, among others, for various applications in the Company's
key markets. Unanticipated actions or developments by or affecting the
Company's competitors and/or willingness of customers to accept substitutions
for aluminum products could affect the Company's financial position and
results of operations.
* Fluctuations in the costs of fuels, raw materials and labor can affect the
Company's financial position and results of operations.
* The Company's key transportation market is cyclical, and sales within that
market in particular can be influenced by economic conditions. Strikes and
work stoppages by automotive customers of the Company may have a material
adverse effect on the Company's financial condition and results of
operations.
Page 21
<PAGE>
* The Company spends substantial capital and operating sums on an ongoing basis
to comply with environmental laws. In addition, the Company is involved in
certain investigations and actions in connection with environmental
compliance and past disposals of solid waste. Estimating future environmental
compliance and remediation costs is imprecise due to the continuing evolution
of environmental laws and regulatory requirements and uncertainties about
their application to the Company's operations, the availability and
applicability of technology and the allocation of costs among principally
responsible parties. Unanticipated material legal proceedings or
investigations could affect the Company's financial position and results of
operations.
REVIEW BY INDEPENDENT ACCOUNTANTS
The Company's independent accountants, Ernst & Young LLP, have reviewed the
Company's consolidated financial statements at September 30, 1999, and for the
three and nine month periods then ended prior to filing, and their report is
included herein.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
- -------
There have been no material changes regarding market risk and the Company's
derivative instruments during the third quarter of 1999. Accordingly, no
additional disclosures have been provided in accordance with Regulation S-K Item
305 (c).
PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
- -------
On August 26, 1999, the Company acquired, in a privately negotiated transaction,
all of the capital stock of B&F Metals, Inc. in exchange for 17,890 shares of
the Company's Common Stock, which were issued pursuant to the exemption from
registration under Rule 505 of Regulation D promulgated under the Securities Act
of 1933.
On October 25, 1999, the Company amended and restated its long-term revolving
credit facility with its lenders; Chase Securities Inc., as lead arranger and
book manager; Bank of America, N.A., as syndication agent; PNC Bank, National
Association, as documentation agent; and Chase Bank of Texas, National
Association, as administrative agent for the lenders, pursuant to the terms of
the Second Amended and Restated Credit Agreement dated as of October 25, 1999.
The Second Amended and Restated Credit Agreement contains terms and covenants
which impose certain restrictions on the Company. See "NOTE C" of "Notes to
Consolidated Financial Statements" in ITEM
Page 22
<PAGE>
1 and ITEM 2--"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS--LIQUIDITY AND CAPITAL RESOURCES-CASH FLOWS FROM FINANCING
ACTIVITIES," which are incorporated herein by reference.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- -------
(a) The following exhibits are included herein:
10.1 Second Amended and Restated Credit Agreement dated October 25, 1999
by and among the Company; Subsidiary Guarantors named therein; the
Lenders thereunder; Bank of America, N.A.; PNC Bank, National
Association and Chase Bank of Texas, National Association
15.1 Acknowledgment letter regarding unaudited financial information from
Ernst & Young LLP
27 Financial Data Schedule
(b) Reports on Form 8-K:
None filed during the quarter ended September 30, 1999.
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.
IMCO Recycling Inc.
(Registrant)
Date: November 9, 1999 By: /s/ Robert R. Holian
-----------------------------------
Robert R. Holian
Senior Vice President
Controller and Chief Accounting Officer
Page 23
<PAGE>
Independent Accountants' Review Report
Stockholders and
Board of Directors
IMCO Recycling Inc.
We have reviewed the accompanying consolidated balance sheet of IMCO Recycling
Inc. as of September 30, 1999, and the related consolidated statements of
earnings for the three-month and nine-month periods ended September 30, 1999 and
1998, and the consolidated statements of cash flows for the nine-month periods
ended September 30, 1999 and 1998. These financial statements are the
responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted
in accordance with generally accepted auditing standards, which will be
performed for the full year with the objective of expressing an opinion
regarding the financial statements taken as a whole. Accordingly, we do not
express such an opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to the accompanying consolidated financial statements referred to above
for them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of IMCO Recycling Inc. as of December
31, 1998, and the related consolidated statements of earnings, stockholders'
equity, and cash flows for the year then ended, not presented herein, and in our
report dated February 1, 1999, we expressed an unqualified opinion on those
consolidated financial statements. In our opinion, the information set forth in
the accompanying consolidated balance sheet as of December 31, 1998, is fairly
stated, in all material respects, in relation to the consolidated balance sheet
from which it has been derived.
/S/ ERNST & YOUNG LLP
Dallas, Texas
October 26, 1999
<PAGE>
EXHIBIT 10.1
================================================================================
IMCO RECYCLING INC.
as Borrower
and
SUBSIDIARY GUARANTORS
-----------------------------------
$250,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 25, 1999
-----------------------------------
BANK OF AMERICA, N.A.
as Syndication Agent
PNC BANK, NATIONAL ASSOCIATION
as Documentation Agent
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
formerly known as
Texas Commerce Bank National Association,
as Administrative Agent
-----------------------------------
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
================================================================================
<PAGE>
TABLE OF CONTENTS
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<S> <C>
Section 1. Definitions and Accounting Matters......................................................................... 1
---------------------------------- -
1.01. Certain Defined Terms...................................................................................... 1
--------------------- -
1.02. Accounting Terms and Determinations........................................................................ 27
----------------------------------- --
1.03. Types of Revolving Credit Loans............................................................................ 27
------------------------------- --
1.04. Rules of Construction...................................................................................... 27
--------------------- --
1.05. Assignment of Certain Outstanding Revolving Credit Loans................................................... 28
-------------------------------------------------------- --
1.06. Effect on Existing Credit Agreement and Other Basic Documents.............................................. 29
------------------------------------------------------------- --
Section 2. Revolving Credit Commitments, Revolving Credit Loans, Notes, Revolving Credit Commitment Reductions and
-------------------------------------------------------------------------------------------------------
Prepayments................................................................................................ 29
----------- --
2.01. Revolving Credit Loans..................................................................................... 29
---------------------- --
2.02. Borrowings................................................................................................. 30
---------- --
2.03. Letters of Credit.......................................................................................... 30
----------------- --
2.04. Termination and Reduction of Revolving Credit Commitments.................................................. 35
--------------------------------------------------------- --
2.05. Fees 35
---- --
2.06. Lending Offices............................................................................................ 35
--------------- --
2.07. Several Obligations........................................................................................ 35
------------------- --
2.08. Notes: Register........................................................................................... 36
---------------- --
2.09. Optional Prepayments and Conversions or Continuations of Revolving Credit Loans............................ 36
------------------------------------------------------------------------------- --
2.10. Mandatory Reductions of Revolving Credit Commitments....................................................... 37
---------------------------------------------------- --
2.11. Replacement of Lenders..................................................................................... 40
---------------------- --
2.12. Optional Revolving Credit Commitment Increase.............................................................. 41
---------------------------------------------
Section 3. Payments of Principal and Interest......................................................................... 43
---------------------------------- --
3.01. Repayment of Revolving Credit Loans........................................................................ 43
----------------------------------- --
3.02. Interest................................................................................................... 43
-------- --
Section 4. Payments; Pro Rata Treatment; Computations; Etc............................................................ 45
----------------------------------------------- --
4.01. Payments................................................................................................... 45
-------- --
4.02. Pro Rata Treatment......................................................................................... 45
------------------ --
4.03. Computations............................................................................................... 46
------------ --
4.04. Minimum Amounts............................................................................................ 46
--------------- --
4.05. Certain Notices............................................................................................ 46
--------------- --
4.06. Non-Receipt of Funds by the Administrative Agent........................................................... 47
------------------------------------------------ --
4.07. Right of Setoff; Sharing of Payments, Etc.................................................................. 48
----------------------------------------- --
4.08. Maximum Rate............................................................................................... 49
------------ --
Section 5. Yield Protection, Etc...................................................................................... 50
--------------------- --
5.01. Additional Costs........................................................................................... 50
---------------- --
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(Continued)
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<S> <C>
5.02. Limitation on Types of Revolving Credit Loans.............................................................. 51
--------------------------------------------- --
5.03. Illegality................................................................................................. 52
---------- --
5.04. Treatment of Affected Revolving Credit Loans............................................................... 52
-------------------------------------------- --
5.05. Compensation............................................................................................... 53
------------ --
5.06. Net Payments............................................................................................... 53
------------ --
Section 6. Guarantee.................................................................................................. 55
--------- --
6.01. The Guarantee.............................................................................................. 55
------------- --
6.02. Obligations Unconditional.................................................................................. 56
------------------------- --
6.03. Reinstatement.............................................................................................. 57
------------- --
6.04. Subrogation; Subordination................................................................................. 57
-------------------------- --
6.05. Remedies................................................................................................... 58
-------- --
6.06. Waivers.................................................................................................... 58
------- --
6.07. Continuing Guarantee....................................................................................... 59
-------------------- --
6.08. General Limitation on Guarantee Obligations................................................................ 59
------------------------------------------- --
Section 7. Conditions Precedent....................................................................................... 59
-------------------- --
7.01. [Reserved]................................................................................................. 59
--
7.02. Initial and Subsequent Extensions of Credit................................................................ 59
------------------------------------------- --
7.03. Conditions to Effectiveness of this Agreement.............................................................. 60
--------------------------------------------- --
Section 8. Representations and Warranties............................................................................. 62
------------------------------ --
8.01. Corporate Existence........................................................................................ 62
------------------- --
8.02. Financial Condition; Etc................................................................................... 62
------------------------ --
8.03. Litigation................................................................................................. 63
---------- --
8.04. No Breach; No Default...................................................................................... 63
--------------------- --
8.05. Action..................................................................................................... 64
------ --
8.06. Approvals.................................................................................................. 64
--------- --
8.07. ERISA...................................................................................................... 64
----- --
8.08. Taxes...................................................................................................... 65
----- --
8.09. Investment Company Act; Public Utility Holding Company Act; Other Restrictions............................. 65
------------------------------------------------------------------------------ --
8.10. No Burdensome Restrictions................................................................................. 65
-------------------------- --
8.11. Capitalization............................................................................................. 65
-------------- --
8.12. Environmental Matters...................................................................................... 65
--------------------- --
8.13. Use of Proceeds............................................................................................ 66
--------------- --
8.14. Subsidiaries............................................................................................... 66
------------ --
8.15. Properties................................................................................................. 66
---------- --
8.16. Security Interest.......................................................................................... 67
----------------- --
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TABLE OF CONTENTS
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(Continued)
<TABLE>
<CAPTION>
Page
----
<S> <C>
8.17. Compliance with Laws....................................................................................... 67
-------------------- --
8.18. True and Complete Disclosure............................................................................... 67
---------------------------- --
8.19. Solvency................................................................................................... 67
-------- --
8.20. Employee and Labor Matters................................................................................. 67
-------------------------- --
8.21. Intellectual Property...................................................................................... 68
--------------------- --
8.22. Representations and Warranties in Documents................................................................ 68
------------------------------------------- --
8.23. Year 2000.................................................................................................. 68
--------- --
Section 9. Covenants.................................................................................................. 68
--------- --
9.01. Financial Statements, Etc.................................................................................. 69
------------------------- --
9.02. Litigation, Etc............................................................................................ 71
--------------- --
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection Rights; Performance of Obligations; Etc....... 71
---------------------------------------------------------------------------------------------------- --
9.04. Insurance.................................................................................................. 72
--------- --
9.05. Issuance or Disposals of Capital Stock of Subsidiaries..................................................... 72
------------------------------------------------------ --
9.06. Fundamental Changes; Acquisitions; Dispositions............................................................ 72
----------------------------------------------- --
9.07. Liens and Related Matters.................................................................................. 74
------------------------- --
9.08. Indebtedness............................................................................................... 76
------------ --
9.09. Investments................................................................................................ 77
----------- --
9.10. Dividend Payments.......................................................................................... 81
----------------- --
9.11. Financial Covenants........................................................................................ 82
------------------- --
9.12. Pledge of Additional Collateral............................................................................ 83
------------------------------- --
9.13. Security Interests......................................................................................... 83
------------------ --
9.14. Compliance with Environmental Laws......................................................................... 83
---------------------------------- --
9.15. Lines of Business.......................................................................................... 84
----------------- --
9.16. Transactions with Affiliates............................................................................... 84
---------------------------- --
9.17. Limitation on Accounting Changes; Limitation on Investment Company Status.................................. 84
------------------------------------------------------------------------- --
9.18. Modifications of Certain Documents, Etc.................................................................... 84
--------------------------------------- --
9.19. Subordinated Debt.......................................................................................... 84
----------------- --
9.20. Limitation on Certain Restrictions Affecting Subsidiaries.................................................. 85
--------------------------------------------------------- --
9.21. Additional Obligors........................................................................................ 85
------------------- --
9.22. Restriction on Leases...................................................................................... 85
--------------------- --
9.23. Sale or Discount of Receivables............................................................................ 85
------------------------------- --
9.24. Contingent Obligations..................................................................................... 86
---------------------- --
9.25. Post Amendment and Restatement Obligations................................................................. 86
------------------------------------------ --
Section 10. Events of Default.......................................................................................... 87
----------------- --
</TABLE>
-iii-
<PAGE>
TABLE OF CONTENTS
-----------------
(Continued)
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 11. The Administrative Agent................................................................................... 90
------------------------ --
11.01. Appointment, Powers and Immunities......................................................................... 90
---------------------------------- --
11.02. Reliance by Administrative Agent........................................................................... 91
-------------------------------- --
11.03. Defaults................................................................................................... 92
-------- --
11.04. Rights as a Lender......................................................................................... 92
----------------- --
11.05. Indemnification............................................................................................ 92
--------------- --
11.06. Non-Reliance on Administrative Agent and Other Lenders..................................................... 93
------------------------------------------------------ --
11.07. Failure to Act............................................................................................. 93
-------------- --
11.08. Resignation or Removal of Administrative Agent............................................................. 94
---------------------------------------------- --
11.09. Consents Under Other Basic Documents....................................................................... 94
------------------------------------ --
11.10. Collateral Sub-Agents...................................................................................... 94
--------------------- --
11.11. Exculpatory Provisions..................................................................................... 94
---------------------- --
Section 12. Miscellaneous.............................................................................................. 95
------------- --
12.01. Waiver..................................................................................................... 95
------ --
12.02. Notices.................................................................................................... 95
------- --
12.03. Expenses, Etc.............................................................................................. 95
------------- --
12.04. Amendments, Etc............................................................................................ 97
--------------- --
12.05. Successors and Assigns..................................................................................... 99
---------------------- --
12.06. Assignments and Participations............................................................................. 99
------------------------------ --
12.07. Survival................................................................................................... 101
-------- ---
12.08. Captions................................................................................................... 102
-------- ---
12.09. Counterparts............................................................................................... 102
------------ ---
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc.................................................... 102
------------------------------------------------------- ---
12.11. Confidentiality............................................................................................ 102
--------------- ---
12.12. Independence of Representations, Warranties and Covenants.................................................. 102
--------------------------------------------------------- ---
12.13. Severability............................................................................................... 103
------------ ---
12.14. Entirety................................................................................................... 103
-------- ---
12.15. Acknowledgments............................................................................................ 103
--------------- ---
12.16. Release of Collateral...................................................................................... 103
--------------------- ---
12.17. Security Documents, Etc.................................................................................... 103
----------------------- ---
Signatures................................................................................................................ S-1
</TABLE>
-iv-
<PAGE>
ANNEX A - Revolving Credit Commitments
ANNEX B - Existing Letters of Credit
ANNEX C - Approved Terms of Subordinated Debt and Trust
Preferred Securities
SCHEDULE 1.01(a) - Subsidiary Guarantors
SCHEDULE 1.01(b) - Mortgaged Real Property
SCHEDULE 1.05 - Revolving Loans to be Assigned
SCHEDULE 8.02 - Certain Contingent Obligations
SCHEDULE 8.03 - Litigation
SCHEDULE 8.06 - Approvals
SCHEDULE 8.12 - Environmental Matters
SCHEDULE 8.14 - Subsidiaries of Borrower
SCHEDULE 8.20 - Labor Matters
SCHEDULE 9.07 - Certain Existing Liens
SCHEDULE 9.08 - Certain Indebtedness to Remain Outstanding
SCHEDULE 9.09 - Investments
SCHEDULE 9.25 - Filings to be Terminated
EXHIBIT A - Form of Note
EXHIBIT B - [Reserved]
EXHIBIT C - Form of Interest Rate Certificate
EXHIBIT D - [Reserved]
EXHIBIT E - Form of Opinion of Counsel to the Obligors
EXHIBIT F - Form of Notice of Assignment
EXHIBIT G - [Reserved]
EXHIBIT H - Form of Section 5.06 Certificate
EXHIBIT I - Form of Notice of Borrowing
EXHIBIT J - Form of Notice of Conversion/Continuation
EXHIBIT K - Form of Joinder Agreement
-v-
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 25, 1999,
among: IMCO RECYCLING INC., a Delaware corporation ("Borrower," which term
--------
shall include its successors and assigns); the Subsidiary Guarantors party
hereto; each of the lenders that is a signatory hereto identified under the
caption "LENDERS" on the signature pages hereto or that, pursuant to Section
2.12 or Section 12.06(b), shall become a "Lender" hereunder (individually, a
"Lender" and, collectively, the "Lenders"); BANK OF AMERICA, N.A., as
- ------- -------
syndication agent (in such capacity, together with its successors in such
capacity, the "Syndication Agent"); PNC BANK, NATIONAL ASSOCIATION as
-----------------
Documentation Agent (in such capacity, together with its successors in such
capacity, the "Documentation Agent"); and CHASE BANK OF TEXAS, NATIONAL
-------------------
ASSOCIATION (formerly known as Texas Commerce Bank National Association)
("Chase"), as administrative agent for the Lenders (in such capacity, together
-----
with its successors in such capacity, the "Administrative Agent").
--------------------
WHEREAS, Borrower, the Lenders, the Subsidiary Guarantors, Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as arranger and
syndication agent, and the Administrative Agent originally entered into that
certain Credit Agreement dated as of January 21, 1997 (the "Original Credit
---------------
Agreement"), and that certain Amended and Restated Credit Agreement dated as of
- ---------
November 5, 1997, which amended and restated the Original Credit Agreement in
its entirety (the "Existing Credit Agreement");
-------------------------
WHEREAS, Borrower, the Lenders, the Subsidiary Guarantors, the Syndication
Agent, the Documentation Agent and the Administrative Agent are entering into
this Second Amended and Restated Credit Agreement in order to amend and restate
the Existing Credit Agreement to provide for (a) an increase in the Revolving
Credit Commitments to $250,000,000, subject to increase and reduction as herein
set forth, and (b) other changes to the Existing Credit Agreement, as evidenced
hereby;
WHEREAS, Borrower, the Lenders, the Subsidiary Guarantors, the Syndication
Agent, the Documentation Agent and the Administrative Agent intend that (a) all
obligations under the Existing Credit Agreement of the parties shall continue to
exist under and be evidenced by this Agreement and the other Basic Documents,
and (b) except as expressly stated herein or amended hereby, the Existing Credit
Agreement and the other Basic Documents are ratified and confirmed as remaining
unmodified and in full force and effect with respect to all obligations.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree that the Existing Credit Agreement
is hereby amended and restated in its entirety as follows:
Section 1. Definitions and Accounting Matters.
----------------------------------
1.01. Certain Defined Terms. As used herein, the following terms shall
---------------------
have the following meanings:
<PAGE>
"Acquisition" means any transaction or series of related transactions
-----------
for the direct or indirect (a) acquisition of all or substantially all of
the Property of a Person, or of any business or division of a Person, (b)
acquisition of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger or consolidation
or any other combination with another Person.
"Additional Collateral" is defined in Section 9.12.
---------------------
"Additional Lender" is defined in Section 2.12.
-----------------
"Adjusted Net Income" shall mean, for any Measurement Period, the
-------------------
consolidated net income (loss) of Borrower and its Consolidated
Subsidiaries calculated on a consolidated basis in accordance with GAAP,
adjusted by excluding (to the extent taken into account in the calculation
of such consolidated net income (loss)) the effect of (a) gains for such
period from Dispositions (including Excluded Dispositions), other than the
Disposition of inventory and equipment in the ordinary course of business,
and the tax consequences thereof, (b) any non-recurring or extraordinary
items of income and the non-cash portion of any extraordinary item of
expense for such period, (c) the portion of net income (loss) of any Person
(other than a Subsidiary) in which Borrower or any Subsidiary has an
ownership interest, except to the extent of the amount of cash dividends or
other cash distributions actually paid to Borrower or (subject to clause
(e) below) any Subsidiary during such period, (d) the net income (loss) of
any Person combined with Borrower or any Subsidiary on a "pooling of
interests" basis attributable to any period prior to the date of
combination and (e) the net income of any Subsidiary to the extent that the
declaration or payment of dividends or similar distribution by such
Subsidiary was not for the relevant period permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary or its stockholders.
"Administrative Agent" is defined in the introduction to this
--------------------
Agreement.
"Advance Date" is defined in Section 4.06.
------------
"Affiliate" shall mean, with respect to any Person, any other Person
---------
which directly or indirectly controls, or is under common control with, or
is controlled by, such Person and, if such Person is an individual, any
member of the immediate family (including parents, spouse and children) of
such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person
who is controlled by any such member or trust. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and
------- -------------
"under common control with") shall mean possession, directly or indirectly,
--------------------------
of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise); provided, however, that, in any
-------- -------
event, any Person which
-2-
<PAGE>
owns directly or indirectly 10% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership interests
of any other Person (other than as a limited partner or non-managing member
of such other Person) will be deemed to control such corporation or other
Person. Notwithstanding the foregoing, solely for purposes of Section 9.16,
Borrower shall not be deemed an Affiliate of any Subsidiary and no Wholly
Owned Subsidiary shall be deemed an Affiliate of any other Wholly Owned
Subsidiary or Borrower.
"Affiliate Transaction" is defined in Section 9.16.
---------------------
"Agreement" shall mean this Credit Agreement, as amended from time to
---------
time.
"Alternate Base Rate" shall mean for any day, a rate per annum that is
------------------- --- -----
the higher of (i) the Federal Funds Rate, plus 0.50%, and (ii) the Prime
----
Rate.
"Alternate Base Rate Loans" shall mean Revolving Credit Loans that
-------------------------
bear interest at rates based upon the Alternate Base Rate.
"Applicable Lending Office" shall mean, for each Lender and for each
-------------------------
Type of Revolving Credit Loan, the "Lending Office" of such Lender (or of
an Affiliate of such Lender) designated for such Type of Revolving Credit
Loan on the signature pages hereof or such other office of such Lender (or
of an Affiliate of such Lender) as such Lender may from time to time
specify to the Administrative Agent and Borrower as the office by which its
Revolving Credit Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean (i) during the period commencing on the
-----------------
date hereof and continuing until the Delivery Date, 1.125% per annum; and
(ii) thereafter, a percentage per annum based on the Debt to Capitalization
--- -----
Ratio determined from the most recently delivered Interest Rate Certificate
and financial statements under Section 9.01(a), (b) and (e), which
percentage per annum shall be equal to (a) prior to the issuance of the
--- -----
Subordinated Debt and the Trust Preferred Securities, if any, the
percentage per annum set forth opposite such Debt to Capitalization Ratio
--- -----
below:
<TABLE>
<CAPTION>
===========================================================================
Debt to Alternate
Capitalization Ratio Base Rate Loans LIBOR Loans
---------------------------------------------------------------------------
<S> <C> <C>
equal to or greater than
0.55:1.0 0.00% 1.250%
---------------------------------------------------------------------------
equal to or greater than
0.45:1.0 and less than
0.55:1.0 0.00% 1.125%
---------------------------------------------------------------------------
equal to or greater than
0.40:1.0 and less than
0.45:1.0 0.00% 1.00%
---------------------------------------------------------------------------
equal to or greater than
0.35:1.0 and less than
0.40:1.0 0.00% 0.875%
---------------------------------------------------------------------------
equal to or greater than
0.30:1.0 and less than
0.35:1.0 0.00% 0.750%
---------------------------------------------------------------------------
less than 0.30:1.0 0.00% 0.625%
===========================================================================
</TABLE>
-3-
<PAGE>
; and (b) after the issuance of the Subordinated Debt and the Trust
Preferred Securities, if any, the percentage per annum set forth opposite
--- -----
such Debt to Capitalization Ratio below:
<TABLE>
<CAPTION>
===========================================================================
Debt to Alternate
Capitalization Ratio Base Rate Loans LIBOR Loans
---------------------------------------------------------------------------
<S> <C> <C>
equal to or greater than
0.40:1.0 0.00% 1.250%
--------------------------------------------------------------------------
equal to or greater than
0.35:1.0 and less than
0.40:1.0 0.00% 1.125%
---------------------------------------------------------------------------
equal to or greater than
0.30:1.0 and less than
0.35:1.0 0.00% 1.000%
---------------------------------------------------------------------------
less than 0.30:1.0 0.00% 0.875%
===========================================================================
</TABLE>
Any change in the Debt to Capitalization Ratio shall be effective to adjust
the Applicable Margin as of the date of receipt by the Administrative Agent
of the Interest Rate Certificate delivered for any period ending on or
after December 31, 1999, and most recently delivered pursuant to Section
9.01(e). If Borrower fails to deliver the Interest Rate Certificates and
financial statements after December 31, 1999 within the times specified in
Sections 9.01(a), (b) and (e), such ratio shall be deemed to be equal to or
greater than 0.55 to 1.0 until Borrower delivers such Interest Rate
Certificates and financial statements.
"Applicable Revolving Credit Commitment Fee Percentage" shall mean (i)
-----------------------------------------------------
during the period commencing on the date hereof and continuing until the
Delivery Date, 0.300% per annum, and (ii) thereafter, a percentage per
---
annum based on the Debt to Capitalization Ratio determined from the most
-----
recently delivered Interest Rate Certificate and financial statements under
Section 9.01(a), (b) and (e), which percentage per annum shall be equal to
--- -----
(a) prior to the issuance of the Subordinated Debt and the Trust Preferred
Securities, if any, the percentage per annum set forth opposite such Debt
--- -----
to Capitalization Ratio below:
<TABLE>
<CAPTION>
==========================================================================
Applicable
Debt to Revolving Credit
Capitalization Ratio Commitment Fee Percentage
---------------------------------------------------------------------------
<S> <C>
equal to or greater than
0.45:1.0 0.300%
--------------------------------------------------------------------------
equal to or greater than
0.35:1.0 and less than
0.45:1.0 0.250%
---------------------------------------------------------------------------
equal to or greater than
0.30:1.0 and less than
0.35:1.0 0.225%
--------------------------------------------------------------------------
less than 0.30:1.0 0.1875%
==========================================================================
</TABLE>
; and (b) after the issuance of the Subordinated Debt and the Trust
Preferred Securities, if any, the percentage per annum set forth opposite
--- -----
such Debt to Capitalization Ratio below:
-4-
<PAGE>
<TABLE>
<CAPTION>
==========================================================================
Applicable
Debt to Revolving Credit
Capitalization Ratio Commitment Fee Percentage
---------------------------------------------------------------------------
<S> <C>
equal to or greater than 0.35:1.0 0.300%
----------------------------------------------=============================
less than 0.35:1.0 0.250%
===========================================================================
</TABLE>
Any change in the Debt to Capitalization Ratio shall be effective to adjust
the Applicable Revolving Credit Commitment Fee Percentage as of the date of
receipt by the Administrative Agent of the Interest Rate Certificate
delivered for any period ending on or after December 31, 1999 and most
recently delivered pursuant to Section 9.01(e). If Borrower fails to
deliver the Interest Rate Certificates and financial statements after
December 31, 1999 within the times specified in Sections 9.01(a), (b) and
(e), such ratio shall be deemed to be equal to or greater than 0.45 to 1.0
until Borrower delivers such Interest Rate Certificates and financial
statements.
"Assignor" is defined in Section 1.05.
--------
"Assignee" is defined in Section 1.05.
--------
"Bankruptcy Code", shall mean the Federal Bankruptcy Code of 1978, as
---------------
amended.
"Basic Documents" shall mean this Agreement, each Joinder Agreement,
---------------
the Notes, the Letter of Credit Documents, the Security Documents and any
Swap Contract with any Lender or any Affiliate of any Lender.
"Benefit Arrangement" shall mean at any time an employee benefit plan
-------------------
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.
"Borrower" is defined in the introduction to this Agreement.
--------
"Business Day" shall mean any day (a) on which commercial banks are
------------
not authorized or required to close in Dallas, Texas and (b) if such day
relates to a borrowing of, a payment or prepayment of principal of or
interest on, a Continuation or Conversion of or into, or an Interest Period
for, a LIBOR Loan or a notice by Borrower with respect to any such
borrowing, payment, prepayment, Continuation, Conversion or Interest
Period, that is also a day on which dealings in Dollar deposits are carried
out in the London interbank market.
"Capital Expenditures" shall mean, for any period, any direct or
--------------------
indirect (by way of acquisition of securities of a Person or the
expenditure of cash or the incurrences of Indebtedness) expenditures in
respect of the purchase or other acquisition of fixed or capital assets,
excluding (i) normal replacement and maintenance programs properly charged
to
-5-
<PAGE>
current operations, (ii) Acquisitions permitted pursuant to Section
9.09(k) or (u), and (iii) expenditures in an amount not to exceed the Net
Available Proceeds of any Casualty Event or any Taking, Destruction or loss
of title with respect to Real Property in each case to the extent such Net
Available Proceeds are not required to be applied to the prepayment of the
Revolving Credit Loans in accordance with Section 2.10(a)(i) or Section
2.10(a)(v), as applicable.
"Capital Lease" as applied to any Person, shall mean any lease of any
-------------
Property by that Person as lessee which, in conformity with GAAP, is
required to be classified and accounted for as a capital lease on the
balance sheet of that Person.
"Capital Lease Obligations", shall mean, for any Person, all
-------------------------
obligations of such Person to pay rent or other amounts under a Capital
Lease, and, for purposes of this Agreement, the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with
GAAP.
"Casualty Event" shall mean, with respect to any Property of any
--------------
Person, any loss of or damage to, or any condemnation or other taking of,
such Property for which such Person or any of its Subsidiaries receives
insurance proceeds or proceeds of a condemnation award or other
compensation. Casualty Event shall not include any Taking or Destruction
or loss of title to Real Property.
"CERCLA" is defined in Section 8.12(a)(ii).
------
"Change in Law" shall mean the introduction of any law or regulation,
-------------
or any change in law or regulation, or the interpretation or administration
of any law.
"Change of Control" shall mean any transaction or event (including,
-----------------
without limitation, an issuance, sale or exchange of capital stock, a
merger or consolidation, or a dissolution or liquidation) as a direct or
indirect result of which (i) any Person or any group shall (directly or
indirectly) beneficially own in the aggregate shares of capital stock of
Borrower having 33-1/3% or more of the aggregate voting power of all shares
of capital stock of Borrower at the time outstanding, or (ii) during any
period of two consecutive years, individuals who at the beginning of such
period constituted the board of directors of Borrower (together with any
new directors whose election by such board of directors or whose nomination
for election by the shareholders of Borrower was approved by a vote of at
least a majority of the directors of Borrower then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the board of directors of Borrower then in office.
For purposes of this definition, the terms "beneficially own" and "group"
---------------- -----
shall have the respective meanings ascribed to them pursuant to Section
13(d) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated
thereunder.
-6-
<PAGE>
"Chase" is defined in the introduction to this Agreement.
-----
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Collateral" shall mean all of the Pledged Collateral and Mortgaged
----------
Real Property.
"Collateral Account" is defined in Section 4.01 of the Security
------------------
Agreement. After the Collateral Release Date, "Collateral Account" shall
mean an account established for purposes of utilizing the option available
to Borrower under the second paragraph of each of Sections 2.10(c) and (d)
according to documentation satisfactory to the Administrative Agent.
"Collateral Release Date" is defined in Section 12.16.
-----------------------
"Commitment Increase" is defined in Section 2.12.
-------------------
"Commitment Letter" shall mean that certain commitment letter between
-----------------
Chase, CSI, and Borrower dated August 25, 1999, together with Exhibit A
thereto and incorporated therein.
"Commonwealth" is defined in the definition of Commonwealth Option.
------------
"Commonwealth Option" shall mean that certain right of Commonwealth
-------------------
Aluminum Corporation, an Ohio corporation (together with its successors and
assigns, "Commonwealth") to purchase the aluminum recycling facility (the
------------
"Facility") currently owned and operated by IMCO Recycling of Ohio Inc., a
---------
Subsidiary, pursuant to the terms and conditions of that certain Supply
Agreement dated April 1, 1999, by and between Borrower and Commonwealth
(the "Commonwealth Supply Agreement"), as such agreement may be amended and
-----------------------------
in effect from time to time in accordance with its terms and this
Agreement.
"Commonwealth Right of First Refusal" shall mean the Right of First
-----------------------------------
Refusal dated as of April 1, 1999 by and between Borrower and Commonwealth,
entered into pursuant to the terms and conditions of the Commonwealth
Supply Agreement, as such agreement may be amended and in effect from time
to time in accordance with its terms and this Agreement.
"Commonwealth Supply Agreement" is defined in the definition of
-----------------------------
Commonwealth Option.
"Consolidated EBITDA" shall mean, for any Measurement Period, the
-------------------
remainder of (a) the sum (without duplication) of the amounts for such
period of (i) Adjusted Net Income, (ii) income tax expense (including
reserves for deferred taxes not payable currently) to the extent deducted
in determining Adjusted Net Income for such period, (iii) interest expense
to the extent deducted in determining Adjusted Net Income for such period,
(iv) depreciation
-7-
<PAGE>
expense and amortization expense (including, but not limited to,
amortization of intangibles and goodwill) to the extent deducted in
determining Adjusted Net Income for such period and (v) the non-cash
component of any item of expense to the extent deducted in determining
Adjusted Net Income for such period, other than to the extent requiring an
accrual or reserve for future cash expenses, minus (b) the amount for such
-----
period of interest income to the extent included in determining Adjusted
Net Income for such period, all as determined on a consolidated basis for
Borrower and its Consolidated Subsidiaries. Prior to the first such time as
there shall have been delivered pursuant to Section 9.01 financial
statements of Borrower for four full fiscal quarters of Borrower after the
date of consummation of any Acquisition, Consolidated EBITDA for any
Measurement Period shall be adjusted on a pro forma basis consistent with
--- -----
GAAP to give effect to such Acquisition as if it had occurred on the first
day of such Measurement Period.
"Consolidated Interest Expense" shall mean, for any period, for
-----------------------------
Borrower and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), all cash interest
expense in respect of Indebtedness during such period (whether or not
actually paid during such period). After the issuance of the Subordinated
Debt and the Trust Preferred Securities, if any, "Consolidated Interest
Expense" shall include interest on the Subordinated Debt, whether paid or
accrued.
"Consolidated Net Worth" shall mean at a particular date, the sum
----------------------
(without duplication) of (a) all amounts which would be included under
shareholders' equity on a consolidated balance sheet of Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance
with GAAP as at such date, plus (b) the amount of the outstanding Trust
Preferred Securities, if any.
"Consolidated Rental Payments" shall mean, for any period, the
----------------------------
aggregate amount of all rents paid or incurred under all operating leases
of Borrower and its Consolidated Subsidiaries as lessees (net of sublease
income).
"Consolidated Subsidiary" shall mean, for any Person, each Subsidiary
-----------------------
of such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated
with the financial statements of such Person in accordance with GAAP.
"Contingent Obligations" shall mean, as to any Person, without
----------------------
duplication, (a) any obligation of such Person guaranteeing or expressly
intended to guarantee by its terms any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
------------------- -------
obligor") in any manner, whether directly or indirectly, including any
-------
"keep-well" or "make-well" agreement, guarantee of return on equity or
other obligation of such Person and including any obligation of such
Person, whether or not contingent, to (i) purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) advance or supply funds (A) for the purchase or payment of
any such primary obligation or (B) to maintain working capital or equity
capital of the primary obligor
-8-
<PAGE>
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise assure or hold harmless the owner of such primary obligation
against loss in respect thereof; or (b) any direct or indirect liability of
such Person, whether or not contingent, with or without recourse, (i) with
respect to any Surety Instrument (other than any Letter of Credit) issued
for the account of such Person or as to which such Person is otherwise
liable for reimbursement of drawings or payments, (ii) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered, or (iii) in
respect of any Swap Contract; provided, however, that the term Contingent
-------- -------
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person
reasonably and in good faith.
"Continue", "Continuation" and "Continued" shall refer to the
-------- ------------ ---------
continuation pursuant to Section 2.09 of a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
------- ---------- ---------
pursuant to Section 2.09 of one Type of Revolving Credit Loan into another
Type of Revolving Credit Loan, which may be accompanied by the transfer by
a Lender (at its sole discretion) of a Revolving Credit Loan from one
Applicable Lending Office to another.
"Covered Taxes" is defined in Section 5.06(a).
-------------
"Creditor" shall mean the Administrative Agent, the Issuing Lender or
--------
any Lender.
"CSI" shall mean Chase Securities Inc.
---
"Debt Conversion Event" shall mean the earliest to occur of (a) any
---------------------
default or event of default (however defined or designated) in any
instrument or agreement governing, evidencing or creating the Trust
Preferred Securities or the Subordinated Debt, if any, (b) any non-payment,
postponement or deferral of distributions, dividends or interest on the
Trust Preferred Securities or the Subordinated Debt, if any, whether or not
expressly permitted by the terms thereof, (c) any mandatory redemption of
the Trust Preferred Securities or the Subordinated Debt, if any, or (d) any
event howsoever designated, the effect of which would result in the
dissolution or termination of the issuer of any Trust Preferred Securities
or
-9-
<PAGE>
would cause the holders of any Trust Preferred Securities to become holders
of the Subordinated Debt.
"Debt to Capitalization Ratio" shall mean, at any date, the ratio of
----------------------------
Total Debt to Total Capitalization at such date.
"Default" shall mean an event that with notice or lapse of time or
-------
both would become an Event of Default.
"Delivery Date" shall mean the date an Interest Rate Certificate is
-------------
delivered to the Lenders for the fiscal quarter ended December 31, 1999, as
required by Section 9.01(e).
"Destruction" shall mean any material damage to, or loss or
-----------
destruction of, any Real Property or Mortgaged Real Property. Destruction
shall not include any Casualty Event.
"Disposition" shall mean any conveyance, sale, lease assignment,
-----------
transfer or other disposition (including by way of merger or consolidation
and including any sale-leaseback transaction) of any Property (including
shares of capital stock of any Subsidiary or joint venture of any Person)
(whether now owned or hereafter acquired) by Borrower or any Subsidiary to
any Person and any liquidating or other non-ordinary course dividend or
distribution received by Borrower or any Subsidiary in respect of any joint
venture or similar enterprise, excluding, however, any Excluded
Disposition.
"Disposition Event" shall mean the receipt by Borrower or any
-----------------
Subsidiary of cash proceeds or cash distributions of any kind from Property
received in consideration for a Disposition.
"Dividend Payment" shall mean dividends (in cash, Property or
----------------
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of Borrower or any Subsidiary, or of any Equity Rights, but
excluding dividends payable in respect of shares of common stock through
the issuance of additional shares of common stock and any redemption or
exchange of any capital stock for common stock.
"Document" shall mean the Commonwealth Option and the Commonwealth
--------
Right of First Refusal.
"Documentation Agent" is defined in the introduction to this
-------------------
Agreement.
"Dollars" and "$" shall mean lawful money of the United States of
------- -
America.
"Eligible Person" shall mean (i) a commercial bank organized under the
---------------
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least
-10-
<PAGE>
$100,000,000; (ii) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country,
----
and having a combined capital and surplus in a dollar equivalent amount of
at least $100,000,000; provided, however, that such bank is acting through
-------- -------
a branch or agency located in the country in which it is organized or
another country that is also a member of the OECD; (iii) a Person that is
primarily engaged in the business of commercial banking and that is (A) a
Subsidiary of a Lender, (B) a Subsidiary of a Person of which a Lender is a
Subsidiary, or (C) a Person of which a Lender is a Subsidiary; (iv) any
Affiliate of a Lender; (v) an insurance company, mutual fund or other
financial institution organized under the laws of the United States, any
state thereof, any other country that is a member of the OECD or a
political subdivision of any such country with assets, or assets under
management, in a dollar equivalent amount of at least $100,000,000; and (v)
any other entity (other than a natural person) which is an "accredited
investor" (as defined in Regulation D under the Securities Act of 1933, as
amended) which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual funds, and
investment funds. With respect to any Lender that is a fund that invests in
loans, any other fund that invests in loans and is managed or advised by
the same investment advisor of such Lender or by an Affiliate of such
investment advisor shall be treated as a single Eligible Person.
"Environmental Claim" shall mean, with respect to any Person, any
-------------------
written notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging such Person's liability for any
------
costs, cleanup costs, governmental response costs, damages to natural
resources or other Property, personal injuries, fines or penalties arising
out of or resulting from (i) the presence, or Release into the environment,
of any Hazardous Material at any location, whether or not owned by such
Person, or (ii) any violation of any Environmental Law. The term
"Environmental Claim" shall include any claim by any Person seeking
--------------------
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or
arising from alleged injury or threat of injury to health, safety or the
environment.
"Environmental Laws", shall mean any and all present and future
------------------
applicable Federal, state, local and foreign laws, rules or regulations,
any orders, decrees, judgments or injunctions and the common law in each
case as now or hereafter in effect, relating to pollution or protection of
human health, safety or the environment, including without limitation,
ambient air, indoor air, soil, surface water, ground water, wetlands, land
or subsurface strata, including, without limitation, those relating to
Releases or threatened Releases of Hazardous Materials into the
environment, or otherwise relating to the manufacture, processing,
generation, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials.
"Equity Issuance" shall mean any of (a) any issuance or sale by
---------------
Borrower or any Subsidiary after the Original Closing Date of (i) any
capital stock (including any capital stock issued upon exercise of any
Equity Rights) or any Equity Rights or (ii) any other
-11-
<PAGE>
security or instrument representing an equity interest (or the right to
obtain any equity interest) in the issuing or selling Person or (b) the
receipt by Borrower or any Subsidiary after the Original Closing Date of
any capital contribution (whether or not evidenced by any equity security
issued by the recipient of such contribution).
"Equity Rights" shall mean, with respect to any Person, any
-------------
outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including any stockholders, or voting
trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital
stock of any class, or partnership or other ownership interests of any type
in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended.
"ERISA Group" shall mean Borrower, any subsidiary and all members of a
-----------
controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Event of Default" see Section 10.
----------------
"Excluded Dispositions" shall mean (i) Dispositions for fair market
---------------------
value resulting in no more than $1,000,000 in proceeds in any fiscal year;
(ii) an exchange of equipment or inventory for like equipment or inventory,
provided that the Person effecting such exchange receives substantially
equivalent value in such exchange for the Property disposed of; (iii) any
transaction permitted by Section 9.06 (other than clause (j) or (k)
thereof), any Lien permitted by Section 9.07, any Investment permitted by
Section 9.09 and any Dividend Payment permitted by Section 9.10; (iv) any
issuance of capital stock by any Subsidiary to directors to qualify
directors if required by applicable law if resulting in de minimis
-- -------
proceeds; (v) the sale of inventory in the ordinary course of business; and
(vi) the transfer of all Property of Borrower or any Subsidiary used at or
in connection with the Facility to Commonwealth (which at the time of such
transfer and at all times prior to the delivery of capital stock or other
ownership interests therein to Commonwealth pursuant to the exercise of the
Commonwealth Option, shall be 100% owned by Borrower or a Wholly Owned
Subsidiary) in connection with the exercise by Commonwealth of the
Commonwealth Option.
"Existing Credit Agreement" is defined in the introduction to this
-------------------------
Agreement.
"Existing Letters of Credit" shall mean the letters of credit issued
--------------------------
or deemed issued under the Original Credit Agreement or the Existing Credit
Agreement and outstanding on the date hereof, which letters of credit are
described in Annex B.
-------
"Facility" is defined in the definition of Commonwealth Option.
--------
-12-
<PAGE>
"Federal Funds Rate" shall mean, for any day, the rate per annum
------------------ --- -----
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided, however, that (a) if the
-------- -------
day for which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding
Business Day and (b) if such rate is not so published for any Business Day,
the Federal Funds Rate for such Business Day shall be the average rate
quoted to the Administrative Agent on such Business Day on such
transactions by three federal funds brokers of recognized standing, as
determined by the Administrative Agent.
"Fee Letter" shall mean the Fee Letter dated August 25, 1999, by and
----------
between Chase, CSI and Borrower and any additional fee letter entered into
by such parties in connection with this Agreement.
"Foreign Pension Plan" shall mean any plan, fund (including, without
--------------------
limitation, any superannuation fund) or other similar program established
or maintained outside the United States of America by Borrower or any one
or more Subsidiaries primarily for the benefit of employees of Borrower or
such Subsidiaries residing outside the United States of America, which
plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to
be made upon termination of employment, and which plan is not subject to
ERISA, or any such plan as to which Borrower or any Subsidiary may have any
liability.
"Foreign Subsidiary" shall mean any direct or indirect Subsidiary
------------------
organized outside of the United States as defined in Section 7701(a)(9) of
the Code (or any successor provision).
"GAAP" shall mean generally accepted accounting principles set forth
----
as of the relevant date in the opinions and pronouncements of the
Accounting Principles Board of the American institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature
and authority within the U.S. accounting profession), which are applicable
to the circumstances as of the date of determination.
"Governmental Authority" shall mean any government or political
----------------------
subdivision or any agency, authority, board, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or
domestic, or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Guarantee" shall mean the guarantee of each Subsidiary Guarantor
---------
pursuant to Section 6.
-13-
<PAGE>
"Guaranteed Obligations" see Section 6.01.
----------------------
"Hazardous Material" shall mean any pollutant, contaminant, toxic,
------------------
hazardous or extremely hazardous substance, constituent or waste, or any
other constituent, waste, material, compound or substance including,
without limitation, petroleum including crude oil or any fraction thereof,
or any petroleum product, subject to regulation under any Environmental
Law.
"Increase Amount" is defined in Section 2.12.
---------------
"Increase Request" is defined in Section 2.12.
----------------
"Increasing Lender" is defined in Section 2.12.
-----------------
"Indebtedness" shall mean, for any Person, without duplication, (a)
------------
all indebtedness for borrowed money of such Person; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase price
of Property or services (other than trade payables and accrued expenses not
overdue by more than 60 days incurred in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment
obligations of such Person with respect to Surety Instruments (such as, for
example, unpaid reimbursement obligations in respect of a drawing under a
letter of credit); (d) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of Property or
businesses; (e) all indebtedness of such Person created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to Property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such Property); (f) all Capital Lease Obligations of such Person; (g) all
net obligations of such Person with respect to Swap Contracts (such
obligations to be equal at any time to the aggregate net amount that would
have been payable by such Person at the most recent fiscal quarter end in
connection with the termination of such Swap Contracts at such fiscal
quarter end); (h) all indebtedness of other Persons referred to in clauses
(a) through (g) above secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien upon or in Property (including accounts and contracts rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness; and (j) all Contingent
Obligations of such Person in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (h) above.
Indebtedness shall not include accounts extended by suppliers in the
ordinary course on normal trade terms in connection with the purchase of
goods and services. The Indebtedness of any Person shall include any
Indebtedness of any partnership in which such Person is the general
partner.
"Indemnitee" is defined in Section 12.03.
----------
-14-
<PAGE>
"Index Debt" shall mean the senior, unsecured, non-externally credit
----------
enhanced, long-term indebtedness for borrowed money of Borrower.
"Intellectual Property" is defined in Section 8.21.
---------------------
"Interest Coverage Ratio" shall mean, for any Measurement Period, the
-----------------------
ratio of (a) the remainder of Consolidated EBITDA for such period less
Capital Expenditures for such period to (b) Consolidated Interest Expense
for such period.
"Interest Period" shall mean, with respect to any LIBOR Loan, each
---------------
period commencing on the date such LIBOR Loan is made or Converted from an
Alternate Base Rate Loan or the last day of the next preceding Interest
Period for such LIBOR Loan and (subject to the requirements of Sections
2.01(a), 2.01(b) and 2.09) ending on the numerically corresponding day in
the first, second, third or sixth calendar month thereafter, as Borrower
may select as provided in Section 4.05, except that each Interest Period
that commences on the last Business Day of a calendar month (or on any day
for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (i)
if any Interest Period for any Revolving Credit Loan would otherwise end
after the Revolving Credit Commitment Termination Date, such Interest
Period shall end on the Revolving Credit Commitment Termination Date; (ii)
each Interest Period that would otherwise end on a day that is not a
Business Day shall end on the next succeeding Business Day (or, if such
next succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day); and (iii) notwithstanding clauses (i)
and (ii) above, no Interest Period shall have a duration of less than one
month and, if the Interest Period for any LIBOR Loan would otherwise be a
shorter period, such LIBOR Loan shall not be available hereunder as a LIBOR
Loan for such period.
"Interest Rate Certificate" shall mean an Officers' Certificate
-------------------------
substantially in the form of Exhibit C, delivered pursuant to Section
---------
9.01(e), demonstrating in reasonable detail the calculation of the Debt to
Capitalization Ratio as of the last day of the subject period.
"Investment" shall mean, for any Person: (a) the acquisition (whether
----------
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person; (b) the making of any deposit with, or
advance, loan or other extension of credit to, any other Person (including
the purchase of Property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such Property to such
Person); (c) any capital contribution to (by means of any transfer of cash
or other Property to others or any payment for Property or services for the
account or use of others) any other Person; (d) the entering into, or
direct or indirect incurrence of, any Contingent Obligation with respect to
Indebtedness or other liability of any other Person; (e) the entering into
of any Swap Contract; or (e) any agreement to make any Investment
(including any "short sale" or any
-15-
<PAGE>
sale of any securities at a time when such securities are not owned by the
Person entering into such sale).
"Investment Grade Date" shall mean the date on which Standard & Poor's
---------------------
Corporation and Moody's Investors Services, Inc. (or their respective
successors) have given a rating for the Index Debt of at least BBB-/Baa3.
"Issuing Lender" shall mean Chase Bank of Texas, National Association
--------------
or any of its Affiliates, or such other Lender or Lenders selected by the
Administrative Agent reasonably satisfactory to Borrower, as the issuer of
Letters of Credit under Section 2.03, together with its successors and
assigns in such capacity.
"Joinder Agreement" shall mean an agreement substantially in the form
-----------------
of Exhibit K.
---------
"Lease" shall mean any lease, sublease, franchise agreement, license,
-----
occupancy or concession agreement.
"Lender" and "Lenders" are defined in the introduction to this
------ -------
Agreement.
"Letter of Credit" shall mean (i) any letter of credit issued pursuant
----------------
to Section 2.03 on or after the date hereof, and (ii) the Existing Letters
of Credit.
"Letter of Credit Documents" shall mean, with respect to any Letter of
--------------------------
Credit, collectively, any other agreements, instruments, guarantees or
other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations
of the parties concerned or at risk with respect to such Letter of Credit
or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Lender, such Lender's
-------------------------
participation interest (or, in the case of the Issuing Lender, the Issuing
Lender's retained interest) in the Issuing Lender's liability under Letters
of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any
--------------------------
time and in respect of any Letter of Credit, the sum of (a) the undrawn
face amount of such Letter of Credit, plus (b) the aggregate unpaid
----
principal amount of all Reimbursement Obligations of Borrower at such time
due and payable in respect of all drawings made under such Letter of
Credit.
"Leverage Ratio" shall mean, at any date, the ratio of (a) Total Debt
--------------
at such date to (b) Consolidated EBITDA for the Measurement Period ended on
or immediately prior to such date.
-16-
<PAGE>
"LIBOR Base Rate" shall mean, with respect to any LIBOR Loan for any
---------------
Interest Period therefor, the rate per annum at which the Lender which is
--- -----
the Administrative Agent is offered deposits in Dollars at approximately
11:00 a.m. London time (or as soon thereafter as practicable) on the date
two Business Days prior to its portion of the first day of such Interest
Period in the London interbank market for delivery on the first day of such
Interest Period, for the number of days comprised therein and in an amount
comparable to its portion of the amount of the LIBOR Loans to be
outstanding during such Interest Period.
"LIBOR Rate" shall mean, for any LIBOR Loan for any Interest Period
----------
therefor, a rate per annum (rounded upwards, if necessary, to the nearest
--- ------
1/100 of 1%) determined by the Administrative Agent to be equal to the
LIBOR Base Rate for such LIBOR Loan for such Interest Period divided by 1
minus the Reserve Requirement (if any) for such LIBOR Loan for such
Interest Period.
"LIBOR Loans" shall mean Revolving Credit Loans that bear interest at
-----------
rates based on rates referred to in the definition of "LIBOR Rate".
"Lien" shall mean, with respect to any Property, any mortgage, lien,
----
pledge, claim, charge, security interest or encumbrance of any kind, or any
other type of preferential arrangement in respect of such Property,
including any easement, right-of-way or other encumbrance on title to Real
Property. For purposes of the Basic Documents, a Person shall be deemed to
own subject to a Lien any Property that it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement (other than an operating
lease) relating to such Property.
"Losses" of any Person shall mean the losses, liabilities, claims
------
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits,
reasonable and documented costs or disbursements of any kind or nature
whatsoever (including reasonable fees and expenses of counsel in connection
with any Proceeding commenced or threatened in writing, whether or not such
Person shall be designated a party thereto) at any time (including
following the payment of the obligations) incurred by, imposed on or
asserted against such Person.
"Majority Lenders" shall mean, subject to the last paragraph of
----------------
Section 12.04, Lenders holding greater than 50% of the sum of (without
duplication) (a) the aggregate principal amount of outstanding Revolving
Credit Loans, plus (b) the aggregate amount of all Letter of Credit
----
Liabilities, plus (c) the aggregate Unutilized Revolving Credit Commitments
----
then in effect.
"Margin Stock" shall mean margin stock within the meaning of
------------
Regulations T, U and X.
-17-
<PAGE>
"Material Adverse Effect" shall mean any of (a) a material adverse
-----------------------
effect on the business, assets, properties, liabilities, results of
operations, condition (financial or otherwise), business prospects or
solvency of Borrower and the Subsidiaries taken as a whole, (b) a material
adverse effect on the ability of the Obligors to perform their obligations
under any Basic Document or (c) an adverse effect on the legality, binding
effect or enforceability of any provision of any Basic Document or
affecting the rights and remedies of the Lenders thereunder.
"Material Plan" means at any time a Plan or Plans having aggregate
-------------
Unfunded Liabilities in excess of $1,000,000.
"Maximum Amount" and "Maximum Rate" respectively mean, for a Lender,
-------------- ------------
the maximum non-usurious amount and the maximum non-usurious rate of
interest that, under applicable law, such Lender is permitted to contract
for, charge, take, reserve, or receive on the Obligations.
"Measurement Period" shall mean the most recent four full fiscal
------------------
quarters of Borrower for which financial statements have been provided
pursuant to Section 9.01.
"Mortgage" shall mean the various mortgages and deeds of trust entered
--------
into in connection with the Original Credit Agreement and the Existing
Credit Agreement, each of which evidence a Lien on Mortgaged Real Property
in favor of Administrative Agent for the benefit of the Lenders, as each
may at any time be amended, modified or supplemented in accordance with the
terms thereof and hereof.
"Mortgaged Real Property" shall mean each Real Property set forth on
-----------------------
Schedule 1.01(b) which is subject to a Mortgage.
----------------
"Multiemployer Plan" shall mean at any time an employee pension
------------------
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"NAIC" shall mean the National Association of Insurance Commissioners.
----
"Net Available Proceeds" shall mean:
----------------------
(i) in the case of any Disposition Event, the amount of Net Cash
Payments received by Borrower or any Subsidiary in connection with
such Disposition Event;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by Borrower
-18-
<PAGE>
or any Subsidiary in respect of such Casualty Event net of (A)
reasonable expenses incurred by Borrower and the Subsidiaries in
connection therewith, (B) repayments of Indebtedness (other than
Indebtedness hereunder) to the extent secured by a Lien on such
Property and (C) any income and transfer taxes payable by Borrower or
any Subsidiary in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate amount
of all cash received by Borrower and the Subsidiaries in respect
thereof net of all reasonable investment banking fees, discounts and
commissions, legal fees, consulting fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses, actually incurred and satisfactorily documented in
connection therewith;
(iv) in the case of any Taking or Destruction, the Net Award or
Net Proceeds, as applicable, resulting therefrom; and
(v) with respect to any loss of title to all or any portion of
any Mortgaged Real Property or Real Property, any title insurance
proceeds resulting therefrom.
"Net Award" shall mean the proceeds, award or payment received by any
---------
obligor or any of its Subsidiaries in respect of any Taking, together with
any interest thereon, less the amount of any reasonable expenses incurred
in litigating, arbitrating, compromising or settling any claim arising out
of any such Taking.
"Net Cash Payments" shall mean, with respect to any Disposition Event,
-----------------
the aggregate amount of all cash payments (including any cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received) received by Borrower or any
Subsidiary directly or indirectly in connection with such Disposition
Event; provided, however, that Net Cash Payments shall be net (without
-------- -------
duplication) of (i) the amount of all reasonable fees and expenses paid by
Borrower and the subsidiaries in connection with such Disposition Event
(the "Relevant Disposition"); (ii) any taxes paid or estimated to be
--------------------
payable by Borrower and the subsidiaries as a result of the Relevant
Disposition; (iii) any repayments by Borrower or any Subsidiary of
Indebtedness to the extent that (a) such Indebtedness is secured by a Lien
on the Property that is the subject of the Relevant Disposition and (b) the
transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property; and
(iv) amounts required to be paid to any Person (other than Borrower and the
Subsidiaries) owning a beneficial interest in the assets subject to such
Relevant Disposition.
"Net Proceeds" shall mean the proceeds of any insurance or other
------------
payment received by any obligor or any of its subsidiaries in connection
with any Destruction, together with any interest earned thereon, less the
amount of any reasonable expenses incurred in litigating, arbitrating,
compromising or settling any claim arising out of such Destruction.
-19-
<PAGE>
"Notes" shall mean the promissory notes provided for by Section
-----
2.08(a) and Section 2.12 and all promissory notes delivered in substitution
or exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
"Notice of Assignment" shall mean a notice of assignment pursuant to
--------------------
Section 12.06 substantially in the form of Exhibit F.
---------
"Obligations" shall mean all amounts, direct or indirect, contingent
-----------
or absolute, of every type or description, and at any time existing, owing
to any Creditor pursuant to the terms of any Basic Document or secured by
any of the Security Documents.
"Obligors" shall mean Borrower and the Subsidiary Guarantors.
--------
"Officers' Certificate" shall mean, as applied to any corporation, a
---------------------
certificate executed on behalf of such corporation by its Chairman of the
Board (if an officer) or its Chief Executive Officer or one of its Vice
Presidents and by its Chief Financial Officer, Vice President-Finance or
its Treasurer or any Assistant Treasurer in their official (and not
individual) capacities; provided, however, that every Officers' Certificate
-------- -------
with respect to the compliance with a condition precedent to the making of
any Revolving Credit Loan or the taking of any other action hereunder shall
include (i) a statement that the officers making or giving such officers,
Certificate have read such condition and any definitions or other
provisions contained in this Agreement relating thereto and (ii) a
statement as to whether, in the opinion of the signers, such condition has
been complied with.
"Original Credit Agreement" is defined in the introduction to this
-------------------------
Agreement.
"Original Closing Date" shall mean the date upon which the initial
---------------------
extension of credit under the Original Credit Agreement was made (January
21, 1997).
"Original Lenders" shall mean the Lenders named on the signature page
----------------
hereof.
"Other Taxes" is defined in Section 5.06(c).
-----------
"Payor" is defined in Section 4.06.
-----
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
----
successor thereto.
"Permitted Investments" shall mean, for any Person: (a) direct
---------------------
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or by any agency thereof, in either case maturing not more than
one year from the date of acquisition thereof by such Person; (b) time
deposits, certificates of deposit, bankers' acceptances (including
eurodollar deposits) issued by any bank or trust company organized under
the laws of the United States of
-20-
<PAGE>
America or any state thereof and having capital, surplus and undivided
profits of at least $500,000,000 and a deposit rating of investment grade;
(c) commercial paper rated A-1 or better by Standard & Poor's Corporation
or P-1 or better by Moody's Investors Service, Inc., respectively, maturing
not more than 180 days from the date of acquisition thereof by such Person;
and (d) money market mutual funds that invest primarily in the foregoing
items.
"Permitted Liens" is defined in Section 9.07.
---------------
"Person" shall mean any individual, corporation, limited liability
------
company, company, voluntary association, partnership, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality
or political subdivision thereof).
"Plan" shall mean at any time an employee pension benefit plan (other
----
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Code and either
(i) is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pledged Collateral" shall have the meaning set forth in the Security
------------------
Agreement.
"Post-Default Rate" shall mean, in respect of any principal of any
-----------------
Revolving Credit Loan, any Reimbursement Obligation or any other amount
payable under this Agreement, any Note or any other Basic Document that is
not paid when due (whether at stated maturity, by acceleration, by optional
or mandatory prepayment or otherwise), a rate per annum during the period
--- -----
from and including the due date to but excluding the date on which such
amount is paid in full equal to the lesser of (a) the Maximum Rate, or (b)
the sum of 2%, plus the Alternate Base Rate as in effect from time to time,
----
plus the Applicable Margin for Alternate Base Rate Loans; provided,
---- --------
however, that, if the amount so in default is principal of a LIBOR Loan and
-------
the due date thereof is a day other than the last day of the Interest
Period therefor, the "Post-Default Rate" for such principal shall be, for
the period from and including such due date to but excluding the last day
of such Interest Period, the lesser of (a) the Maximum Rate, or (b) the sum
of 2%, plus the interest rate for such LIBOR Loan as provided in Section
----
3.02(b) and, thereafter, the rate provided for above in this definition.
"Prime Rate" shall be the rate most recently announced by Chase at its
----------
principal office in Houston, Texas as its "Prime Rate." Prime Rate is one
of Chase's base rates and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto, and is
evidenced by the reporting thereof after its announcement in such internal
publication or publications as Chase may designate. Any change in the
interest rate resulting from a change in such Prime Rate shall become
effective on the Business Day on which each change in Prime Rate is
announced by Chase.
-21-
<PAGE>
"Principal Office" shall mean the principal office of the
----------------
Administrative Agent, located on the date hereof in Houston, Texas.
"Prior Liens" shall mean Liens which, pursuant to the provisions of
-----------
any Security Document, are or may be superior to the Lien of such Security
Document.
"Proceeding" shall mean any claim, counterclaim, action, judgment,
----------
suit, hearing, governmental investigation, arbitration or proceeding,
including by or before any Governmental Authority.
"Property" shall mean any right or interest in or to property or
--------
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including capital stock or other ownership
interests of any Person.
"Proposed Lender" is defined in Section 2.11.
---------------
"Quarterly Dates" shall mean the last Business Day of March, June,
---------------
September and December in each year, commencing with the last Business Day
of December 1999.
"Real Property" shall mean all right, title and interest of Borrower
-------------
or any Subsidiary (including, without limitation, any leasehold estate) in
and to a parcel of real property owned or operated by Borrower or any
Subsidiary together with, in each case, all improvements and appurtenant
fixtures, equipment, personal property, easements and other property and
rights incidental to the ownership, lease or operation thereof.
"Register" is defined in Section 2.08.
--------
"Regulation D" shall mean Regulation D of the Board of Governors of
------------
the Federal Reserve System (or any successor) as the same may be modified
and supplemented and in effect from time to time.
"Regulations T, U and X" shall mean, respectively, Regulations T, U
----------------------
and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from
time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
-----------------
after the Original Closing Date in Federal, state or foreign law or
regulations (including Regulation D) or the adoption or making after such
date of any interpretation, directive or request applying to a class of
banks or other financial institutions including such Lender of or under any
Federal, state or foreign law or regulations (whether or not having the
force of law and whether or not failure to comply therewith would be
unlawful) by any court or governmental or monetary authority or any other
regulatory agency with proper authority, including non-governmental
agencies or bodies, charged with the interpretation or administration
thereof or by the NAIC.
-22-
<PAGE>
"Reimbursement Obligations" shall mean, at any time, the obligations
-------------------------
of Borrower then outstanding, or that may thereafter arise in respect of
all Letters of Credit then outstanding, to reimburse amounts paid by the
Issuing Lender in respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration
into the environment.
"Relevant Parties" and "Relevant Party" are defined in Section 10(b).
---------------- --------------
"Replaced Lender" is defined in Section 2.11.
---------------
"Required Payment" is defined in Section 4.06.
----------------
"Requirement of Law" as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Reserve Requirement" shall mean, for any Interest Period for any
-------------------
LIBOR Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in
Regulation D). LIBOR Loans shall be deemed to constitute Eurocurrency
liabilities and to be subject to such reserve requirements without benefit
of or credit for proration, exceptions or offsets which may be available
from time to time to any Lender under Regulation D. Without limiting the
effect of the foregoing, the Reserve Requirement shall include any other
reserves required to be maintained by such member banks by reason of any
Regulatory change with respect to (i) any category of liabilities that
includes deposits by reference to which the LIBOR Base Rate is to be
determined as provided in the definition of "LIBOR Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets
that includes LIBOR Loans.
"Response Date" is defined in Section 2.12.
-------------
"Restoration" is defined in each Mortgage.
-----------
"Revolving Credit Commitment" shall mean, for each Lender, on any date
---------------------------
of determination, the obligation of such Lender to make Revolving Credit
Loans in an aggregate principal amount at any one time outstanding up to
but not exceeding the amount set opposite the name of such Lender on Annex
-----
A under the caption "Revolving Credit
-
-23-
<PAGE>
Commitment" (as the same may be reduced from time to time pursuant to
Section 2.04(b), increased pursuant to Section 2.12 or changed pursuant to
Section 12.06(b)).
"Revolving Credit Commitment Percentage" shall mean, with respect to
--------------------------------------
any Lender, on any date of determination, the ratio of (a) the amount of
the Revolving Credit Commitment of such Lender to (b) the aggregate amount
of the Revolving Credit Commitments of all of the Lenders. The Revolving
Credit Commitment Percentage of each Lender as of the date hereof after
giving effect to this Agreement is set forth on Schedule 1.05.
-------------
"Revolving Credit Commitment Termination Date" shall mean the last
--------------------------------------------
Business Day in December, 2003.
"Revolving Credit Commitments" shall mean the aggregate sum of the
----------------------------
Revolving Credit Commitment of all of the Lenders. The initial aggregate
principal amount of the Revolving Credit Commitments is $250,000,000.
"Revolving Credit Loans" is defined in Section 2.01(a).
----------------------
"Section 5.06 Certificate" is defined in Section 5.06(b).
------------------------
"Security Agreement" shall mean that certain Security Agreement dated
------------------
as of January 21, 1997, among the Obligors (whether as original parties
thereto or by execution of a Joinder Agreement) and the Administrative
Agent, as the same may be amended, modified or supplemented in accordance
with the terms thereof and hereof.
"Security Documents" shall mean the Security Agreement, the Mortgages
------------------
and all Uniform Commercial Code financing statements required by this
Agreement, the Security Agreement or any Mortgage to be filed with respect
to the security interests in Property and fixtures created pursuant to the
Security Agreement or any Mortgage and any other document or instrument
utilized to pledge as Collateral for the obligations on any property or
assets of whatever kind or nature.
"State and Local Real Property Disclosure Requirements" shall mean any
-----------------------------------------------------
state or local laws requiring notification of the buyer of real property,
or notification, registration, or filing to or with any state or local
agency, prior to the sale of any real property or transfer of control of an
establishment, of the actual or threatened presence or release into the
environment, or the use, disposal, or handling of Hazardous Materials on,
at, under, or near the real property to be sold or the establishment for
which control is to be transferred.
"Subordinated Debt" shall mean up to $125,000,000 in convertible
-----------------
subordinated debt to be issued by the Borrower in connection with the
issuance of trust preferred securities, provided that such convertible
subordinated debt shall be subordinated in right of payment to the
obligations of the Borrower to the Lenders and such other obligations of
the Borrower
-24-
<PAGE>
as reasonably required by the Lenders pursuant to documents containing
maturities, interest rates, payment terms, payment deferral provisions,
covenants, defaults, remedies, subordination provisions, payment blockage,
standstill provisions and other terms in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders. The terms
specified on Annex C shall be deemed to be satisfactory to the
-------
Administrative Agent and the Lenders; provided that all other terms and
provisions of the Subordinated Debt and related documents shall be subject
to the prior approval of the Administrative Agent and the Lenders, which
approval shall not be unreasonably withheld.
"Subsidiary" shall mean, with respect to any Person, any corporation,
----------
partnership or other entity of which at least a majority of the securities
or other ownership interests having by the terms thereof ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other
entity (irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such corporation,
partnership or other entity shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly
owned or controlled by such Person or one or more Subsidiaries of such
Person or by such Person and one or more Subsidiaries of such Person.
Unless the context clearly requires otherwise, all references to any
Subsidiary shall mean a Subsidiary of Borrower.
"Subsidiary Guarantors" shall mean each of the Subsidiaries of
---------------------
Borrower listed on Schedule 1.01(a) attached hereto and each other Wholly
----------------
Owned Subsidiary that guarantees the payment of the Obligations of Borrower
hereunder pursuant to Section 9.21 and the other Basic Documents.
"Surety Instruments" shall mean all letters of credit (including
------------------
standby and commercial), bankers, acceptances, bank guarantees, surety
bonds and similar instruments.
"Survey" shall mean a survey of any Mortgaged Real Property (and all
------
improvements thereon): (a) prepared by a surveyor or engineer licensed to
perform surveys in the state, province or country where such Mortgaged Real
Property is located, (b) dated (or redated) not earlier than six months
prior to the date of delivery thereof unless there shall have occurred
within the six months prior to such date of delivery any exterior
construction on the site of such Mortgaged Real Property, in which event
such survey shall be dated (or redated) after the completion of such
construction or, if such construction shall not have been completed as of
such date of delivery, not earlier than 20 days prior to such date of
delivery, (c) certified by the surveyor (in a manner acceptable to the
Administrative Agent) to the Administrative Agent and the Title Company and
(d) complying in all respects with the minimum detail requirements of the
American Land Title Association as such requirements are in effect on the
date of preparation of such survey.
"Swap Contract" means any agreement (including any master agreement
-------------
and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward
rate agreement, commodity swap, commodity option,
-25-
<PAGE>
equity or equity index swap or option, bond option, interest rate option,
foreign exchange agreement, rate cap, collar or floor agreement, currency
swap agreement, cross-currency rate swap agreement, swaption, currency
option or any other similar agreement (including any option to enter into
any of the foregoing).
"Syndication Agent" is defined in the introduction to this Agreement.
-----------------
"Taking" shall mean any taking of any Mortgaged Real Property or Real
------
Property of any obligor or any of its subsidiaries or any part thereof, in
or by condemnation or other eminent domain proceedings pursuant to any law,
general or special, or by reason of the temporary requisition of the use or
occupancy of any Mortgaged Real Property or Real Property of any obligor or
any of its subsidiaries or any part thereof, by any Governmental Authority,
civil or military. Taking shall not include any casualty Event.
"Total Capitalization" shall mean at any date the sum (without
--------------------
duplication) of Total Debt plus Consolidated Net Worth.
"Total Debt" shall mean at any date, the aggregate amount of
----------
Indebtedness of Borrower and the Subsidiaries determined on a consolidated
basis in accordance with GAAP. Except as otherwise provided herein, after
the issuance of the Subordinated Debt and the Trust Preferred Securities,
if any, "Total Debt" shall not include the Subordinated Debt unless and
until a Debt Conversion Event shall occur. Notwithstanding the foregoing,
for purposes of Section 12.16, "Total Debt" (as used in the definitions of
Leverage Ratio and Debt to Capitalization Ratio) shall include the
Subordinated Debt.
"Trust Preferred Securities" shall mean any trust preferred securities
--------------------------
referred to in the definition of "Subordinated Debt", provided that such
----------------- -------------
trust preferred securities and all documents related thereto and all terms
and provisions thereof shall be reasonably satisfactory in all respects to
the Administrative Agent and the Lenders. The terms specified on Annex C
-------
shall be deemed to be satisfactory to the Administrative Agent and the
Lenders; provided that all other terms and provisions of the Trust
Preferred Securities and related documents shall be subject to the prior
approval of the Administrative Agent and the Lenders, which approval shall
not be unreasonably withheld.
"Type" is defined in Section 1.03.
----
"UCC" shall mean the Uniform Commercial Code as in effect in the State
---
of Texas.
"Unfunded Liabilities" shall mean, with respect to any Plan at any
--------------------
time, the amount (if any) by which (a) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA,
exceeds (b) the fair market value of all Plan assets allocable to such
liabilities under Title I of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date
for such Plan.
-26-
<PAGE>
"Unutilized Revolving Credit Commitment" shall mean, for any Lender,
--------------------------------------
at any time, the excess of such Lender's Revolving Credit Commitment at
such time over the sum of (a) the aggregate outstanding principal amount of
Revolving Credit Loans made by such Lender and (b) such Lender's Revolving
Credit Commitment Percentage of the aggregate amount of Letter of Credit
Liabilities at such time.
"VAW-IMCO" shall mean the joint venture between Borrower and VAW
--------
aluminium AG known as VAW-IMCO Guss und Recycling GmbH.
"Wholly Owned Subsidiary" shall mean, with respect to any Person,
-----------------------
any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors, qualifying shares) are directly or indirectly owned
or controlled by such Person or one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of
such Person. Unless the context clearly requires otherwise, all references
to any Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary of
Borrower.
"Working Capital" shall mean an amount determined for Borrower and
---------------
the Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) equal to the sum of all current assets (other than
cash) less the sum of all current liabilities (other than the current
portion of long-term indebtedness).
1.02. Accounting Terms and Determinations. Except as otherwise provided
-----------------------------------
in this Agreement, all computations and determinations as to accounting or
financial matters shall be made in accordance with GAAP, and all accounting or
financial terms shall have the meanings ascribed to such terms by GAAP as in
effect on the date of this Agreement. All financial statements to be delivered
pursuant to this Agreement shall be prepared in accordance with GAAP. Unless
otherwise required by applicable laws or regulations, all financial covenants
are to be calculated in accordance with GAAP as in effect on the date of this
Agreement unless such modifications are agreed to by the parties hereto.
1.03. Types of Revolving Credit Loans. Revolving Credit Loans hereunder
-------------------------------
are distinguished by "Type". The "Type" of a Revolving Credit Loan refers to
----
whether such Revolving Credit Loan is an Alternate Base Rate Loan or a LIBOR
Loan, each of which constitutes a Type.
1.04. Rules of Construction.
---------------------
(a) In this Agreement and each other Basic Document, unless the
context clearly requires otherwise (or such other Basic Document clearly
provides otherwise), references to (i) the plural include the singular, the
singular the plural and the part the whole; (ii) Persons include their
respective permitted successors and assigns or, in the case of governmental
Persons, Persons succeeding to the relevant functions of such Persons;
(iii) agreements (including this Agreement), promissory notes and other
contractual instruments include subsequent amendments, assignments, and
other modifications thereto, but only to the extent
-27-
<PAGE>
such amendments, assignments or other modifications thereto are not
prohibited by their terms or the terms of any Basic Document; (iv) statutes
and related regulations include any amendments of same and any successor
statutes and regulations; and (v) time shall be a reference to Dallas,
Texas time. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision
shall be applicable whether such action is taken directly or indirectly by
such Person.
(b) In this Agreement and each other Basic Document, unless the
context clearly requires otherwise (or such other Basic Document clearly
provides otherwise) and except as set forth in the proviso hereto,
(i)"amend" shall mean "amend, amend and restate, supplement or modify"; and
-----
"amended" and "amendment" shall have meanings correlative to the foregoing;
------- ---------
(ii) in the computation of periods of time from a specified date to a later
specified date, "from" shall mean "from and including"; "to" and "until"
---- -- -----
shall mean "to but excluding"; and "through" shall mean "to and including";
-------
(iii) "hereof," "herein" and "hereunder" (and similar terms) in this
------ ------ ---------
Agreement or any other Basic Document refer to this Agreement or such other
Basic Document, as the case may be, as a whole and not to any particular
provision of this Agreement or such other Basic Document; (iv) "including"
---------
(and similar terms) shall mean "including without limitation" (and
similarly for similar terms); (v) "or" has the inclusive meaning
--
represented by the phrase "and/or"; and (vi) "satisfactory to" any Creditor
---------------
shall mean in form, scope and substance and on terms and conditions
reasonably satisfactory to such Creditor.
(c) In this Agreement unless the context clearly requires
otherwise, any reference to (i) an Annex, Exhibit or Schedule is to an
Annex, Exhibit or Schedule, as the case may be, attached to this Agreement
and constituting a part hereof, and (ii) a Section or other subdivision is
to of this Agreement.
(d) No doctrine of construction of ambiguities in agreements or
instruments against the interests of the party controlling the drafting
thereof shall apply to any Basic Document.
1.05. Assignment of Certain Outstanding Revolving Credit Loans. On the
--------------------------------------------------------
date hereof, (a) each assignor Lender identified on Schedule 1.05 (each an
-------------
"Assignor") is assigning to the assignee Lenders identified on Schedule 1.05
- --------- -------------
(each an "Assignee") all or a portion of the Revolving Credit Loans outstanding
--------
under the Existing Credit Agreement as of the date hereof that are held by such
Assignor, together with accrued interest thereon and expenses related thereto
(including any expenses under Section 5 of the Existing Credit Agreement), (b)
---------
each Assignee is assuming all or a portion of the Revolving Credit Commitments
of the respective Assignors outstanding under the Existing Credit Agreement, and
(c) each Assignor is assigning, selling and transferring to the respective
Assignees and each Assignee is purchasing, assuming and receiving from the
respective Assignors all or a portion of the Assignors' respective participation
shares under Section 2.03 in all Existing Letters of Credit and related rights.
------------
With regard to Assignors identified on Schedule 1.05 as "terminating lenders,"
-------------
100% of the Revolving Credit Loans, Revolving Credit Commitments and
participation interests in Existing Letters of Credit and related rights of such
Assignors are being so
-28-
<PAGE>
assigned and assumed, and with regard to Assignors identified on Schedule 1.05
-------------
as "reallocating lenders," a portion of the Revolving Credit Loans, Revolving
Credit Commitments and participation interests in Existing Letters of Credit and
related rights of such Assignors are being so assigned and assumed, in each case
such that the Assignees will have respective shares of all Revolving Credit
Loans, Revolving Credit Commitments and participation interests in Existing
Letters of Credit and related rights, in accordance with their respective
Revolving Credit Commitment Percentages as of the date hereof after giving
effect to this Agreement, as specified on Schedule 1.05.
--------------
1.06. Effect on Existing Credit Agreement and Other Basic Documents. Upon
-------------------------------------------------------------
the execution and delivery by the parties hereto of this Agreement and the
satisfaction (or waiver) of the conditions set forth in Section 7.03, (a) this
Agreement shall be deemed to amend, restate and supersede the Existing Credit
Agreement (which amended, restated and superceded the Original Credit
Agreement), except that the grants of security interests, mortgages and Liens
under and pursuant to the Basic Documents shall continue unaltered, and each
other Basic Document shall continue in full force and effect in accordance with
its terms, and the parties hereto hereby ratify and confirm the terms thereof as
being in full force and effect and unaltered by this Agreement, except as
expressly modified by this Agreement; (b) all Obligations under the Existing
Credit Agreement and the other Basic Documents shall continue to be outstanding
except as expressly modified by this Agreement and shall be governed in all
respects by this Agreement and the other Basic Documents, it being agreed and
understood that this Agreement does not constitute a novation, satisfaction,
payment or reborrowing of any obligation under the Existing Credit Agreement or
any other Basic Document except as expressly modified by the Agreement, nor does
it operate as a waiver of any right, power or remedy of any Lender under any
Basic Document (other than the Existing Credit Agreement); and (c) all
references to the Original Credit Agreement or the Existing Credit Agreement in
any Basic Document or other document or instrument delivered in connection
therewith shall be deemed to refer to this Agreement and the provisions hereof.
Section 2. Revolving Credit Commitments, Revolving Credit Loans, Notes,
------------------------------------------------------------
Revolving Credit Commitment Reductions and Prepayments.
- ------------------------------------------------------
2.01. Revolving Credit Loans.
----------------------
(a) Revolving Credit Loans. Each Lender severally agrees, on the
----------------------
terms and conditions of this Agreement, to make revolving credit loans (the
"Revolving Credit Loans") to Borrower in Dollars during the period from and
----------------------
including the date hereof to but not including the Revolving Credit
Commitment Termination Date in an aggregate principal amount at any one
time outstanding not exceeding the amount of the Revolving Credit
Commitment of such Lender as in effect from time to time; provided,
--------
however, that in no event shall the sum of the aggregate principal amount
-------
of (without duplication) all Revolving Credit Loans then outstanding, plus
----
the aggregate amount of all Letter of Credit Liabilities at any time exceed
the aggregate amount of the Revolving Credit Commitments as in effect at
such time. Subject to the terms and conditions of this Agreement, during
such period Borrower may borrow, repay and reborrow the amount of the
Revolving Credit Commitments by means of Alternate Base Rate Loans and
LIBOR Loans and may Convert
-29-
<PAGE>
Revolving Credit Loans of one Type into Revolving Credit Loans of another
Type (as provided in Section 2.09) or Continue Revolving Credit Loans of
one Type as Revolving Credit Loans of the same Type (as provided in Section
2.09).
(b) Limit on LIBOR Loans. No more than ten separate Interest Periods
---------------------
in respect of LIBOR Loans may be outstanding at any one time.
2.02. Borrowings. Borrower shall give the Administrative Agent notice of
----------
each borrowing hereunder as provided in Section 4.05. The form of such notice
of borrowing shall be substantially in the form of Exhibit I. Not later than
---------
1:00 p.m., Dallas, Texas time on the date specified for each borrowing
hereunder, each Lender shall make available the amount of the Revolving Credit
Loan or Revolving Credit Loans to be made by it on such date to the
Administrative Agent, at an account specified by the Administrative Agent
maintained at the Principal Office, in immediately available funds, for account
of Borrower. Each borrowing of Revolving Credit Loans shall be made by each
Lender pro rata based on such Lender's Revolving Credit Commitment Percentage.
--- ----
The amount so received by the Administrative Agent shall, subject to the terms
and conditions of this Agreement, be made available to Borrower by depositing
the same, in immediately available funds, in an account of Borrower maintained
with the Administrative Agent at the Principal office designated by Borrower.
2.03. Letters of Credit. The Existing Letters of Credit have been
-----------------
previously issued and remain outstanding under this Agreement. The Revolving
Credit Commitments are deemed to be utilized for the Existing Letters of Credit
as provided in subsection (b) of this Section 2.03. Subject to the terms and
------------
conditions hereof, the Revolving Credit Commitments may be further utilized,
upon the request of Borrower in addition to the Revolving Credit Loans provided
for by Section 2.01(a), for standby and commercial documentation letters of
credit issued on or after the date hereof for the account of Borrower; provided,
--------
however, that in no event shall (i) the aggregate amount of all Letter of Credit
- -------
Liabilities, plus the aggregate principal amount of the Revolving Credit Loans
----
then outstanding exceed at any time the aggregate Revolving Credit Commitments
as in effect at such time, (ii) the outstanding aggregate amount of all Letter
of Credit Liabilities exceed $12,000,000, (iii) the face amount of any Letter of
Credit be less than $5,000, (iv) the expiration date of any Letter of Credit
extend beyond the earlier of (x) the fifth Business Day preceding the Revolving
Credit Commitment Termination Date and (y) the date twelve months following the
date of such issuance for standby Letters of Credit or 180 days after the date
of such issuance for commercial Letters of Credit, unless the Majority Lenders
have approved such expiry date in writing (however, no Letter of Credit may be
extended beyond the Revolving Credit Commitment Termination Date); provided,
--------
however, that any standby Letter of Credit may be automatically extendible for
- -------
periods of up to one year (but never beyond the fifth Business Day preceding the
Revolving Credit Commitment Termination Date then in effect) so long as such
Letter of Credit provides that the Issuing Lender retains an option satisfactory
to the Issuing Lender to terminate such Letter of Credit prior to each extension
date, unless all of the Lenders have approved such expiry date in writing, or
(v) the Issuing Lender issue any Letter of Credit after it has received notice
from Borrower or the Majority Lenders stating that a Default or Event of Default
exists until such time as the Issuing Lender shall have received written notice
of (x) rescission of such notice from the Majority Lenders or (y) waiver of
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such Default or Event of Default in accordance with this Agreement. The
following additional provisions shall apply to Letters of Credit:
(a) Other than with respect to Existing Letters of Credit originally
issued prior to the Original Closing Date for the stated term thereof as of
the Original Closing Date, Borrower shall give the Administrative Agent at
least three Business Days, irrevocable prior notice (effective upon
receipt) specifying the date (which shall be no later than thirty days
preceding the Revolving Credit Commitment Termination Date) each Letter of
Credit is to be issued and describing in reasonable detail the proposed
terms of such Letter of Credit (including the beneficiary thereof)
(including whether such Letter of Credit is to be a commercial Letter of
Credit or a standby Letter of Credit). Upon receipt of any such notice,
the Administrative Agent shall advise the Issuing Lender of the contents
thereof.
(b) On each day during the period commencing on the date hereof for
each Existing Letter of Credit and on the date of issuance for each Letter
of Credit issued by the Issuing Bank on or after the date hereof and until
such Letter of Credit shall have expired or been terminated, the Revolving
Credit Commitment of each Lender shall be deemed to be utilized for all
purposes hereof in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the then undrawn face amount of such Letter of
Credit. Each Lender (other than the Issuing Lender) agrees that, upon the
issuance of any Letter of Credit hereunder (which, with respect to Existing
Letters of Credit originally issued prior to the Original Closing Date
shall be deemed the Original Closing Date), it shall automatically acquire
a participation in the Issuing Lender's liability under such Letter of
Credit in an amount equal to such Lender's Revolving Credit Commitment
Percentage of such liability, and each Lender (other than the Issuing
Lender) thereby shall absolutely, unconditionally and irrevocably assume,
as primary obligor and not as surety, and shall be unconditionally
obligated to the Issuing Lender to pay and discharge when due, its
Revolving Credit Commitment Percentage of the Issuing Lender's liability
under such Letter of Credit. The Issuing Lender shall be deemed to hold a
Letter of Credit Liability in an amount equal to its retained interest in
the related Letter of Credit after giving effect to such acquisition by the
Lenders other than the Issuing Lender of their participation interests.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Lender shall
promptly notify Borrower (through the Administrative Agent) of the amount
to be paid by the Issuing Lender as a result of such demand and the date on
which payment is to be made by the Issuing Lender to such beneficiary in
respect of such demand. Borrower hereby unconditionally agrees to pay and
reimburse the Issuing Lender for the amount of each demand for payment
under such Letter of Credit not later than the date on which the Issuing
Lender notifies Borrower that payment is to be made by the Issuing Lender
to the beneficiary thereunder (or the next Business Day if such notice is
received after 11:00 a.m. (Dallas, Texas time)).
(d) Forthwith upon its receipt of a notice referred to in clause (c)
of this Section 2.03, Borrower shall advise the Issuing Lender whether or
not Borrower intends to
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borrow hereunder to finance its obligation to reimburse the Issuing Lender
for the amount of the related demand for payment and, if it does, submit a
notice of such borrowing as provided in Section 4.05. In the event that
Borrower fails to so advise the Administrative Agent, or if Borrower fails
to reimburse the Issuing Lender for a demand for payment under a Letter of
Credit by the date of notice of such payment (or the next Business Day if
received after 11:00 a.m. Dallas, Texas time) on such date), the
Administrative Agent shall give each Lender prompt notice of the amount of
the demand for payment, specifying such Lender's Revolving Credit
Commitment Percentage of the amount of the related demand for payment,
which, if received after 12:00 p.m., noon, Dallas, Texas time will be
deemed received the next Business Day.
(e) Each Lender (other than the Issuing Lender) shall pay to the
Administrative Agent for account of the Issuing Lender at the Principal
Office in Dollars and in immediately available funds, the amount of such
Lender's Revolving Credit Commitment Percentage of any payment under a
Letter of Credit upon notice by the Issuing Lender (through the
Administrative Agent) to such Lender requesting such payment and specifying
such amount. Each such Lender's obligation to make such payments to the
Administrative Agent for account of the Issuing Lender under this clause
(e), and the Issuing Lender's right to receive the same, shall be absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including (i) the failure of any other Lender to make its payment under
this clause (e), (ii) the financial condition of Borrower or the existence
of any Default or Event of Default or (iii) the termination of the
Revolving Credit Commitments. Each such payment to the Issuing Lender
shall be made without any offset, abatement, withholding or reduction
whatsoever. Nothing in this clause (e) shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender in the event of a
wrongful payment of the type described in the proviso to the last paragraph
of this Section 2.03.
(f) Upon the making of each payment by a Lender to the Issuing Lender
pursuant to clause (e) above in respect of any Letter of Credit, such
Lender shall, automatically and without any further action on the part of
the Administrative Agent, the Issuing Lender or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement
Obligation owing to the Issuing Lender by Borrower hereunder and under the
Letter of Credit Documents relating to such Letter of Credit and (ii) a
participation in a percentage equal to such Lender's Revolving Credit
Commitment Percentage in any interest or other amounts payable by Borrower
hereunder and under such Letter of Credit Documents in respect of such
Reimbursement Obligation. Upon receipt by the Issuing Lender from or for
account of Borrower of any payment in respect of any Reimbursement
Obligation or any such interest or other amounts (including by way of
setoff or application of proceeds of any collateral security) the Issuing
Lender shall promptly pay to the Administrative Agent for account of each
Lender entitled thereto, such Lender's Revolving Credit Commitment
Percentage of such payment, each such payment by the Issuing Lender to be
made in the same money and funds in which received by the Issuing Lender.
In the event any payment received by the Issuing Lender and so paid to the
Lenders hereunder is rescinded or must otherwise be returned by the Issuing
Lender, each Lender shall, upon the request of the
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Issuing Lender (through the Administrative Agent), repay to the Issuing
Lender (through the Administrative Agent) the amount of such payment paid
to such Lender, with interest at the rate specified in clause (i) of this
Section 2.03.
(g) Borrower shall pay to the Administrative Agent for the account of
the Issuing Lender in respect of each Letter of Credit a letter of credit
commission in an amount equal to (x) the rate per annum equal to the
--- ------
Applicable Margin for Revolving Credit Loans that would be LIBOR Loans in
effect at the time of issuance thereof, plus 0.25% per annum, multiplied by
--- -----
(y) the daily average undrawn face amount of such Letter of Credit (but in
no event less than $500 per Letter of Credit on a per annum basis) for the
--- -----
period from and including the date of issuance of such Letter of Credit
(which for Existing Letters of Credit originally issued prior to the
Original Closing Date shall initially be deemed the Original Closing Date)
(i) in the case of a Letter of Credit which expires in accordance with its
terms, to and including such expiration date and (ii) in the case of a
Letter of Credit which is drawn in full or is otherwise terminated other
than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is terminated,
such fee to be non-refundable and to be paid in arrears quarterly, on each
Quarterly Date (or such minimum $500 per annum fee to be paid on the date
--- -----
of issuance of the applicable Letter of Credit), and on the earlier of the
Revolving Credit Commitment Termination Date or the date of the termination
of the Revolving Credit Commitments or the date of such termination,
expiration or the Business Day subsequent to notice of a drawing. The
Issuing Lender shall pay to the Administrative Agent for account of each
Lender (other than the Issuing Lender), from time to time at reasonable
intervals (but in any event at least quarterly), but only to the extent
actually received from Borrower, an amount equal to such Lender's Revolving
Credit Commitment Percentage of all letter of credit commissions referred
to in the first sentence of this clause (g) received in respect of all
periods after the Original Closing Date in addition, Borrower shall pay to
the Administrative Agent for account of the Issuing Lender only in respect
of each Letter of Credit (other than the Existing Letters of Credit
originally issued prior to the Original Closing Date (unless renewed)) a
letter of credit issuance fee in an amount equal to 1/4% per annum
--- -----
multiplied by the original face amount from the issue date through the
expiry date of such Letter of Credit (but in no event less than $500 per
Letter of Credit), such amount to be payable on the date of issuance of
such Letter of Credit, plus all charges, costs and expenses in the amounts
----
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(h) [Reserved]
(i) To the extent that any Lender fails to pay an amount required to
be paid pursuant to clause (e) or (f) of this Section 2.03 on the due date
therefor, such Lender shall pay interest to the Issuing Lender (through the
Administrative Agent) on such amount from and including such due date to
but excluding the date such payment is made (i) during the period from and
including such due date to but excluding the date three Business Days
thereafter, at a rate per annum equal to the Federal Funds Rate (as in
--- -----
effect from time to
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time) and (ii) thereafter, at a rate per annum equal to the Post-Default
---------
Rate (as in effect from time to time).
(j) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder that would extend the expiry
date or increase the face amount thereof shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (x) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (y) each Lender
shall have consented thereto.
(k) Notwithstanding the foregoing, the Issuing Lender shall not be
under any obligation to issue any Letter of Credit if at the time of such
issuance, any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain the Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to the Issuing Lender or any request or directive (whether or
not having the force of law) from any Governmental Authority shall
prohibit, or request that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Lender with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which the Issuing Lender
is not otherwise compensated) not in effect on the date hereof.
The obligations of Borrower under this Agreement and any Letter of Credit
Document to reimburse the Issuing Lender for a drawing under a Letter of Credit,
and to repay any drawing under a Letter of Credit converted into Revolving
Credit Loans, shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement and each such other Letter of
Credit Document under all circumstances, including the following: (i) any lack
of validity or enforceability of this Agreement or any Letter of Credit
Document; (ii) the existence of any claim, setoff, defense or other right that
Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
Letter of Credit Documents or any unrelated transaction; (iii) any draft,
demand, certificate or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit; or any defense based upon the failure of
any drawing under a Letter of Credit to conform to the terms of the Letter of
Credit or any non-application or misapplication by the beneficiary of the
proceeds of such drawing; or (iv) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Borrower or a Subsidiary Guarantor; provided, however, that
-------- -------
Borrower shall not be obligated to reimburse the Issuing Lender for any wrongful
payment determined by a court of competent jurisdiction to have been made by the
Issuing Lender as a result of acts or omissions constituting willful misconduct
or gross negligence on the part of the Issuing Lender or which is not
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in accordance with the standard of care specified in the Uniform Commercial Code
of the State of Texas. To the extent that any provision of any Letter of Credit
Document is inconsistent with the provisions of this Section 2.03, the
provisions of this Section 2.03 shall control.
2.04. Termination and Reduction of Revolving Credit Commitments.
---------------------------------------------------------
(a) Borrower shall have the right at any time or from time to time
(i) so long as no Revolving Credit Loans or Letter of Credit Liabilities
will be outstanding as of the date specified for termination, to terminate
the Revolving Credit Commitments or (ii) to reduce the aggregate amount of
the Unutilized Revolving Credit Commitments of all the Lenders; provided,
--------
however, that (x) Borrower shall give notice of each such termination or
-------
reduction as provided in Section 4.05 and (y) each partial reduction shall
be in an aggregate amount at least equal to $1,000,000 (or a larger
multiple of $100,000).
(b) The Revolving Credit Commitments once terminated or reduced may
not be reinstated.
2.05. Fees.
----
(a) Borrower shall pay to the Administrative Agent for the account
of each Lender a commitment fee on the daily average amount of such
Lender's Unutilized Revolving Credit Commitment, for the period from and
including the date hereof to but not including the earlier of the date such
Revolving Credit Commitment is terminated and the Revolving Credit
Commitment Termination Date, at a rate per annum equal to the Applicable
--- -----
Revolving Credit Commitment Fee Percentage. Any accrued commitment fee
under this Section 2.05(a) shall be payable in arrears on each Quarterly
Date and on the earlier of the date the Revolving Credit Commitments are
terminated and the Revolving Credit Commitment Termination Date.
(b) Borrower shall pay to the Administrative Agent for its own
account a nonrefundable administrative fee pursuant to the terms of the Fee
Letter.
2.06. Lending Offices. The Revolving Credit Loans of each Type made by
---------------
each Lender shall be made and maintained at such Lender's Applicable Lending
Office for Revolving Credit Loans of such Type.
2.07. Several Obligations. The failure of any Lender to make any
-------------------
Revolving Credit Loan to be made by it on the date specified therefor shall not
relieve any other Lender of its obligation to make its Revolving Credit Loan on
such date, but neither any Lender nor the Administrative Agent shall be
responsible for the failure of any other Lender to make a Revolving Credit Loan
to be made by such other Lender, and (except as otherwise provided in Section
4.06) no Lender shall have any obligation to the Administrative Agent or any
other Lender for the failure by such Lender to make any Revolving Credit Loan
required to be made by such Lender.
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<PAGE>
2.08. Notes: Register.
----------------
(a) In connection with the increase in the Revolving Credit
Commitments on the date hereof as part of the amendments to the Existing
Credit Agreement, each Lender shall surrender its Notes issued in
connection with its Revolving Credit Commitments under the Original Credit
Agreement and the Existing Credit Agreement and be issued new Notes
pursuant to this Section 2.08, substantially in the form of Exhibit A-1,
-----------
dated the date of this Agreement, payable to such Lender in the principal
amount of such Lender's Revolving Credit Commitment and otherwise duly
completed.
(b) [Reserved]
(c) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Revolving Credit Loan made by each Lender to
Borrower, and each payment made on account of the principal thereof, shall
be recorded by such Lender on its books and, prior to any transfer of any
Note evidencing the Revolving Credit Loans held by it, endorsed by such
Lender on the schedule attached to such Note or any continuation thereof;
provided, however, that the failure of such Lender to make any such
-------- -------
recordation or endorsement shall not affect the obligations of Borrower to
make a payment when due of any amount owing hereunder or under such Note.
(d) Borrower hereby designates the Administrative Agent to serve as
Borrower's agent, solely for purposes of this Section 2.08, to maintain a
register (the "Register") on which it will record the Revolving Credit
--------
Commitment from time to time of each of the Lenders, the Revolving Credit
Loans made by each of the Lenders and each repayment in respect of the
principal amount of the Revolving Credit Loans of each Lender. Failure to
make any such recordation or any error in such recordation shall not affect
Borrower's obligations in respect of such Revolving Credit Loans. The
entries in the Register shall be conclusive, in the absence of manifest
error, and Borrower, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of a
Revolving Credit Loan or other obligation hereunder as the owner thereof
for all purposes of this Agreement and the other Basic Documents,
notwithstanding any notice to the contrary. The Register shall be
available for inspection by Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior Notice.
2.09. Optional Prepayments and Conversions or Continuations of Revolving
------------------------------------------------------------------
Credit Loans. Subject to Section 4.04, Borrower shall have the right to prepay
- ------------
Revolving Credit Loans, or to Convert Revolving Credit Loans of one Type into
Revolving Credit Loans of another Type or Continue Revolving Credit Loans of one
Type as Revolving Credit Loans of the same Type, at any time or from time to
time to be applied as specified by Borrower; provided, however, that: (a)
-------- -------
Borrower shall give the Administrative Agent notice of each such prepayment,
Conversion or Continuation as provided in Section 4.05 (and, upon the date
specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder); and (b) LIBOR
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<PAGE>
Loans may be prepaid or Converted only on the last day of an Interest Period for
such LIBOR Loans. Each notice of Conversion or Continuation shall be
substantially in the form of Exhibit J.
---------
Notwithstanding the foregoing, and without limiting the rights and remedies
of the Lenders under Section 10, in the event that any Event of Default shall
have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of Borrower to Convert
any Alternate Base Rate Loan into a LIBOR Loan, or to Continue any LIBOR Loan as
a LIBOR Loan, in which event all Revolving Credit Loans shall be Converted (on
the last day(s) of the respective Interest Periods therefor) or Continued, as
the case may be, as Alternate Base Rate Loans.
2.10. Mandatory Reductions of Revolving Credit Commitments.
----------------------------------------------------
(a) The Revolving Credit Commitments shall be automatically and
permanently reduced as follows (each such reduction to be effected in each
case in the manner and to the extent specified in subsection (b) below of
this Section 2.10):
(i) Casualty Events. On the date on which Borrower or any
---------------
Subsidiary receives any Net Available Proceeds from any Casualty
Event, in an aggregate amount equal to 100% of such Net Available
Proceeds; provided, however, that (i) so long as no Default or Event
-------- -------
of Default then exists and such Net Available Proceeds do not exceed
$4,000,000, the Revolving Credit Commitments need not be reduced by
such amount of such Net Available Proceeds to the extent that
Borrower has delivered an Officers' Certificate to the
Administrative Agent on or prior to such date stating that such
proceeds shall be used to (1) repair, replace or restore any
Property in respect of which such Net Available Proceeds were paid
or (2) fund the expansion or substitution of other Property used or
usable in the business of Borrower and the Subsidiaries, in each
case within 360 days following the date of the receipt of such Net
Available Proceeds and (ii) until the Collateral Release Date an
amount of such Net Available Proceeds equal to the amount by which
the Revolving Credit Loans outstanding at any time prior to the end
of such 360 day period would exceed the Revolving Credit Commitments
if the Revolving Credit Commitments had been automatically reduced
by the amount of such Net Available Proceeds shall be held in the
Collateral Account and released therefrom only in accordance with
the terms of the Security Agreement; provided, further, however,
-------- ------- -------
that (subject to waiver of such condition by the Majority Lenders)
(i) if the amount of such Net Available Proceeds exceeds $4,000,000,
then the Revolving Credit Commitments shall be reduced by an amount
equal to the entire amount and not just the portion in excess of
$4,000,000, and (ii) if all or any portion of such Net Available
Proceeds is not so used within 360 days after the date of the
receipt of such Net Available Proceeds, the Revolving Credit
Commitments shall be automatically and permanently reduced in an
amount equal to such remaining portion on the last day of such
period as specified in Section 2.10(b).
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(ii) [Reserved].
(iii) Disposition Events. Upon the date of receipt of any Net
------------------
Available Proceeds from any Disposition Event, in an aggregate
principal amount equal to 100% of the Net Available Proceeds from such
Disposition Event; provided, however, that (i) the Revolving Credit
-------- -------
Commitments need not be reduced by such amount of the Net Available
Proceeds from any Disposition Event permitted by Section 9.06(j) or
(k) if and to the extent that (1) no Default or Event of Default then
exists and (2) Borrower delivers an Officers' Certificate to the
Administrative Agent on or prior to such date stating that such Net
Available Proceeds shall be reinvested in capital assets of Borrower
or any Subsidiary in each case within 360 days following the date of
such Disposition Event (which certificate shall set forth the
estimates of the proceeds to be so expended) and (ii) until the
Collateral Release Date an amount of such Net Available Proceeds equal
to the amount by which the Revolving Credit Loans outstanding at any
time prior to the end of such 360 day period would exceed the
Revolving Credit Commitments if the Revolving Credit Commitments had
been automatically reduced by the amount of such Net Available
Proceeds shall be held in the Collateral Account and released
therefrom only in accordance with the terms of the Security Agreement;
provided, further, however, that if all or any portion of the Net
-------- ------- -------
Available Proceeds are not so used within such 360 day period, the
Revolving Credit Commitments shall be automatically and permanently
reduced in an amount equal to such remaining portion on the last day
of such period as specified in Section 2.10(b) (it being understood
that the foregoing shall in no way affect the obligation of Borrower
to obtain the consent of the Majority Lenders if required pursuant to
this Agreement).
(iv) [Reserved].
(v) Recovery Events. On the date on which Borrower or any
---------------
Subsidiary receives any Net Available Proceeds from any Taking or
Destruction or loss of title to any Mortgaged Real Property or Real
Property, in an aggregate principal amount equal to 100% of such Net
Available Proceeds; provided, however, that (i) so long as no Default
-------- -------
or Event of Default then exists and such Net Available Proceeds do not
exceed $25,000,000, the Revolving Credit Commitments need not be
reduced by the amount of such Net Available Proceeds to the extent
that Borrower has delivered an Officers' Certificate to the
Administrative Agent on or prior to such date stating that such
Proceeds shall be used to (1) repair, replace or restore any Mortgaged
Real Property (or, if received in respect of Real Property which is
not Mortgaged Real Property, Real Property) in respect of which such
Net Available Proceeds were paid or (2) fund the purchase of
substitute or additional Mortgaged Real Property (or Real Property if
such Net Available Proceeds were received in respect of Real Property
which was not Mortgaged Real Property), in each case within 360 days
following the date of the receipt of such Net Available Proceeds and
(ii) until the Collateral Release Date an amount of such Net Available
Proceeds equal to the amount by which the
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Revolving Credit Loans outstanding at any time prior to the end of
such 360 day period would exceed the Revolving Credit Commitments if
the Revolving Credit Commitments had been automatically reduced by the
amount of such Net Available Proceeds shall be held in the Collateral
Account and released therefrom only in accordance with the terms of
the Security Agreement; provided, further, however, that (subject to
-------- ------- -------
waiver of such condition by the Majority Lenders) (i) if the amount of
such Net Available Proceeds exceeds $25,000,000, then the Revolving
Credit Commitments shall be reduced by an amount equal to the entire
amount and not just the portion in excess of $25,000,000, and (ii) if
all or any portion of such Net Available Proceeds is not so used
within 360 days after the date of the receipt of such Net Available
Proceeds, the Revolving Credit Commitments shall be automatically and
permanently reduced by an amount equal to such remaining portion on
the last day of such period as specified in Section 2.10(b).
(b) Application. The amount of any required reductions described in
-----------
Section 2.10(a) shall be made pro rata among the Revolving Credit
--- ----
Commitments. Concurrently with any such reduction, Borrower shall comply
with Section 2.10(c).
(c) Revolving Credit Extension Reductions. Until the Revolving Credit
-------------------------------------
Commitment Termination Date, Borrower shall from time to time immediately
prepay the Revolving Credit Loans (and/or provide cover for Letter of
Credit Liabilities as specified in Section 2.10(d)) in such amounts as
shall be necessary so that at all times the aggregate outstanding amount of
the Revolving Credit Loans, plus the aggregate outstanding Letter of Credit
----
Liabilities shall not exceed the aggregate Revolving Credit Commitments,
such amount to be applied, first, to Revolving Credit Loans outstanding
-----
and, second, as cover for Letter of Credit Liabilities outstanding as
------
specified in Section 2.10(d).
Notwithstanding the foregoing, if the amount of any prepayment of
Revolving Credit Loans required under this Section 2.10 shall be in excess
of the amount of the Alternate Base Rate Loans at the time outstanding,
only the portion of the amount of such prepayment as is equal to the amount
of such outstanding Alternate Base Rate Loans shall be immediately prepaid
and, at the election of Borrower, the balance of such required prepayment
shall be either (i) deposited in the Collateral Account and applied to the
prepayment of LIBOR Loans on the last day of the then next-expiring
Interest Period for LIBOR Loans or (ii) prepaid immediately, together with
any amounts owing to the Lenders under Section 5.05. Notwithstanding any
such deposit in the Collateral Account, interest shall continue to accrue
on such Revolving Credit Loans until prepayment. If the Collateral Release
Date occurs, Borrower must create a Collateral Account pursuant to
documentation satisfactory to the Administrative Agent prior to electing
the option described in clause (i) of the second preceding sentence.
(d) Cover for Letter of Credit Liabilities. In the event that
--------------------------------------
Borrower shall be required pursuant to this Section 2.10 to provide cover
for Letter of Credit Liabilities, Borrower shall effect the same by paying
to the Administrative Agent immediately available
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funds in an amount equal to the required amount, which funds shall be
retained by the Administrative Agent in the Collateral Account (as
provided in the Security Agreement as collateral security in the first
instance for the Letter of Credit Liabilities) until such time as all
Letters of Credit shall have been terminated and all of the Letter of
Credit Liabilities paid in full. If the Collateral Release Date
occurs, Borrower shall create a Collateral Account which shall be
pledged to the Administrative Agent pursuant to documentation
satisfactory to the Administrative Agent into which amounts payable
under this Section 2.10(d) shall be deposited.
2.11. Replacement of Lenders. Upon the occurrence of any event giving
----------------------
rise to the operation of Section 5.01, 5.03 or Section 5.06 with respect to any
Lender which results in such Lender charging to Borrower increased costs in
excess of those being generally charged by the other Lenders or becoming
incapable of making LIBOR Loans, and/or (y) as provided in Section 12.04(ii), in
the case of a refusal by a Lender to consent to certain proposed amendments,
waivers or modifications with respect to this Agreement, Borrower shall have the
right, if no Default or Event of Default then exists, to replace such Lender
(the "Replaced Lender") with one or more other Eligible Persons reasonably
---------------
acceptable to the Administrative Agent (collectively, the "Proposed Lender");
---------------
provided, however, that (i) at the time of any replacement pursuant to this
- -------- -------
Section 2.11, the Proposed Lender shall enter into one or more assignment
agreements (and with all fees payable pursuant to said Section 12.06 to be paid
by the Proposed Lender) pursuant to which the Proposed Lender shall acquire all
of the Revolving Credit Commitments and outstanding Revolving Credit Loans of,
and in each case Letter of Credit Interests by, the Replaced Lender and, in
connection therewith, shall pay to (x) the Replaced Lender, an amount equal to
the sum of (A) the principal of, and all accrued interest on, all outstanding
Revolving Credit Loans of the Replaced Lender, (B) all Reimbursement Obligations
owing to such Replaced Lender, together with all then unpaid interest with
respect thereto at such time, and (C) all accrued, but theretofore unpaid, fees
owing to the Replaced Lender pursuant to Section 2.05, and (y) the Issuing
Lender an amount equal to such Replaced Lender's Revolving Credit Commitment
Percentage of any Reimbursement Obligations (which at such time remains a
Reimbursement Obligation) to the extent such amount was not theretofore funded
by such Replaced Lender, and (ii) all obligations of Borrower owing to the
Replaced Lender (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Lender concurrently with
such replacement. Upon the execution of the respective assignment agreement,
the payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Proposed Lender, delivery to the Proposed Lender of Notes
executed by Borrower, the Proposed Lender shall become a Lender hereunder and
the Replaced Lender shall cease to constitute a Lender hereunder and be released
of all its obligations as a Lender, except with respect to indemnification
provisions applicable to the Replaced Lender under this Agreement, which shall
survive as to such Replaced Lender.
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2.12. Optional Revolving Credit Commitment Increase.
---------------------------------------------
(a) Optional Increase Request. Borrower may request that the
-------------------------
Revolving Credit Commitments be increased by an amount (the "Increase
--------
Amount") not to exceed $50,000,000 (a "Commitment Increase"), provided that
------ ------------------- -------------
(i) any such request shall be made in writing (an "Increase Request") by
----------------
Borrower and delivered to the Administrative Agent, and (ii) after giving
effect to the Commitment Increase the amount of the Revolving Credit
Commitments shall not exceed $300,000,000. Promptly upon receipt of an
Increase Request, the Administrative Agent shall notify the Lenders of such
request.
(b) Lender's Response to Increase Request. Each Lender shall have
-------------------------------------
the right, but not the obligation, to elect to increase its respective
Revolving Credit Commitment by an amount not to exceed the Increase Amount,
which election shall be made by notice from each Lender to the
Administrative Agent given not later than 14 days after the date notified
of the Increase Request by Administrative Agent (the "Response Date"), and
shall specify the amount of the proposed increase in such Lender's
Revolving Credit Commitment. If any Lender shall fail to give such notice
to Administrative Agent by the Response Date, such Lender shall be deemed
to have elected not to increase its Revolving Credit Commitment in
connection with such Increase Request.
(c) Joinder of Additional Lenders. If the aggregate amount of the
-----------------------------
proposed increases in the Revolving Credit Commitments of all Lenders
making an election to increase their respective Revolving Credit Commitment
(each, an "Increasing Lender") does not equal or exceed the Increase
-----------------
Amount, then Borrower shall have the right to add one or more financial
institutions (which must be Eligible Persons reasonably satisfactory to
Borrower and the Administrative Agent) as Lenders (each an "Additional
----------
Lender"), which Additional Lenders shall have aggregate Revolving Credit
------
Commitments not greater than an amount equal to (i) the then-effective
Revolving Credit Commitments, plus (ii) the Increase Amount, less (iii) any
---- ----
increases in the Revolving Credit Commitments of the Increasing Lenders.
(d) Adjustments to Revolving Credit Commitments.
-------------------------------------------
(i) If the aggregate amount of the proposed increases in the
Revolving Credit Commitments of all Increasing Lenders is in excess
of the Increase Amount, then (A) the Increase Amount shall be
allocated pro rata among the Increasing Lenders based on the
respective amounts of the proposed increases to the Revolving Credit
Commitment of each such Increasing Lender; (B) the Revolving Credit
Commitment of each such Increasing Lender shall be increased by the
amount allocated to such Increasing Lender pursuant to clause (A) of
this Section 2.12(d)(i); and (C) the Revolving Credit Commitment
Percentages of all Lenders shall be adjusted accordingly.
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<PAGE>
(ii) If the aggregate amount of the proposed increases to the
Revolving Credit Commitments of all Increasing Lenders equals the
Increase Amount, then (A) the Revolving Credit Commitment of each
such Increasing Lender shall be increased by the amount of such
Increasing Lender's proposed increase, and (B) the Revolving Credit
Commitment Percentages of all Lenders shall be adjusted accordingly.
(iii) If the aggregate amount of the proposed increases to the
Revolving Credit Commitments of all Increasing Lenders is less than
the Increase Amount, then (A) the Revolving Credit Commitment of
each such Increasing Lender shall be increased by the respective
amount of its proposed increase; (B) the amount of the Revolving
Credit Commitments shall be further increased by the portion of the
Increase Amount allocated to Additional Lenders, if any; and (C) the
Revolving Credit Commitment Percentages of all Lenders shall be
adjusted accordingly.
(e) Notes. Upon any increase in the Revolving Credit Commitments
-----
pursuant to this Section, the Borrower will execute and deliver (i) a
replacement Note to each Increasing Lender, each in the principal amount of
the Revolving Credit Commitment of such Increasing Lender, as increased in
accordance with subsection (d) of this Section 2.12, and (ii) a new Note
to each Additional Lender made party to this Agreement in connection
therewith, each in the principal amount of such Additional Lender's
Revolving Credit Commitment.
(f) Documentation. Borrower and Administrative Agent shall execute
-------------
appropriate documentation to add each Additional Lender as a party to this
Agreement, whereupon such Additional Lender shall have all of the rights
and obligations of a Lender hereunder and under the other Loan Documents.
Obligors shall execute and deliver appropriate documentation and pay any
and all mortgage taxes that are lawfully due and payable in connection with
a Commitment Increase to preserve and protect the Liens of the
Administrative Agent in the Collateral and the perfection and priority of
such Liens.
(g) Payment. (i) Each Additional Lender shall pay to the
-------
Administrative Agent for the account of the other Lenders an amount equal
to its Revolving Credit Commitment Percentage of outstanding Revolving
Credit Loans, (ii) each Increasing Lender shall pay to the Administrative
Agent for the account of the other Lenders the amount necessary so that
such Increasing Lender has advanced an amount equal to its Revolving Credit
Commitment Percentage (as adjusted in accordance with subsection (d) of
this Section 2.12) of outstanding Revolving Credit Loans, and (iii) such
amount so paid by each Additional Lender and each Increasing Lender shall
constitute a Revolving Credit Loan by such Additional Lender or Increasing
Lender under its Note and a payment of principal to the other Lenders under
their respective Notes, and the outstanding principal balances of the
respective Notes shall be increased or reduced accordingly.
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<PAGE>
(h) Effects of Increase. Upon and as of the date of the addition of
-------------------
any Additional Lender to the Agreement or the increase of the Revolving
Credit Commitment of any Increasing Lender, (i) the Revolving Credit
Commitments of the other Lenders (other than other Increasing Lenders)
shall remain unchanged, and (ii) each of the other Lenders shall be deemed
to have sold and transferred to such Additional Lender or such Increasing
Lender, as the case may be, and such Additional Lender or Increasing Lender
shall be deemed irrevocably and unconditionally to have purchased and
received from each such other Lenders (on a pro rata basis, based on such
other Lenders' respective Revolving Credit Commitment Percentages, as
adjusted in accordance with this Section) a portion of such other Lenders'
participation shares under Section 2.03 in all Letters of Credit
outstanding on such date and related rights, in an aggregate amount equal
to such Additional Lender's or such Increasing Lender's Revolving Credit
Commitment Percentage of such outstanding Letters of Credit. The addition
of any Additional Lender or the increase of the Revolving Credit Commitment
of an Increasing Lender and the effects thereof as described in this
Section shall occur automatically upon satisfaction of the requirements
specified in this Section, without the necessity for further documentation
to be executed by the other Lenders.
(i) Acknowledgments Regarding Obligation to Increase. Borrower
------------------------------------------------
acknowledges that (i) neither Administrative Agent nor any Lender has made
any representations to Borrower regarding its intent to agree to any
increases to the Revolving Credit Commitments described in this Section,
(ii) no Lender shall have any obligation to increase its Revolving Credit
Commitment, (iii) any Lender's agreement to one or more increases shall not
commit such Lender to any additional increases, and (iv) neither the
Administrative Agent, nor any Lender, nor any of their respective
Affiliates shall have any obligation to find or arrange for any Additional
Lender.
Section 3. Payments of Principal and Interest.
----------------------------------
3.01. Repayment of Revolving Credit Loans. Borrower hereby promises to
-----------------------------------
pay to the Administrative Agent for the account of each Lender the entire
outstanding principal amount of such Lender's Revolving Credit Loans, and each
Revolving Credit Loan shall mature, on the Revolving Credit Commitment
Termination Date.
3.02 Interest. Borrower hereby promises to pay to the Administrative
--------
Agent for the account of each Lender interest on the unpaid principal amount of
each Revolving Credit Loan made by such Lender for the period from and including
the date of such Revolving Credit Loan to but excluding the date such Revolving
Credit Loan shall be paid in full, at the following rates per annum:
--- -----
(a) during such periods as such Revolving Credit Loan is an
Alternate Base Rate Loan, the lesser of (i) the Alternate Base Rate (as in
------
effect from time to time), plus the Applicable Margin, and (ii) the Maximum
----
Rate; and
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<PAGE>
(b) during such Periods as such Revolving Credit Loan is a LIBOR
Loan, for each Interest Period relating thereto, the lesser of (i) the
LIBOR Rate for such Revolving Credit Loan for such Interest Period, plus
the Applicable Margin, and (ii) the Maximum Rate.
Notwithstanding the foregoing, Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable Post-
Default Rate on any principal of any Revolving Credit Loan made by such Lender,
on any Reimbursement Obligation held by such Lender and on any other amount
payable by Borrower hereunder or under the Notes held by such Lender to or for
account of such Lender, that shall not be paid in full when due (whether at
stated maturity, by acceleration, by mandatory prepayment or otherwise), for the
period from and including the due date thereof to but excluding the date the
same is paid in full.
Accrued interest on each Revolving Credit Loan shall be payable (i) in the
case of an Alternate Base Rate Loan, quarterly on the Quarterly Dates, upon any
prepayment thereof required to be made under Section 2.10 of this Agreement (but
only on the principal amount so prepaid), and on the earlier of (A) the date the
Revolving Credit Commitments are terminated, or (B) the Revolving Credit
Termination Date, (ii) in the case of a LIBOR Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest Period
and (iii) in the case of any LIBOR Loan, upon any prepayment thereof required
to be made under Section 2.10 of this Agreement or the Conversion of such
Revolving Credit Loan to a Revolving Credit Loan of another Type (but only on
the principal amount so paid, prepaid or Converted), and on the earlier of (A)
the date the Revolving Credit Commitments are terminated, or (B) the Revolving
Credit Termination Date, except that interest payable at the Post-Default Rate
shall be payable from time to time on demand. Promptly after the determination
of any interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Lenders to which such
interest is payable and to Borrower. Each change in the Prime Rate and Maximum
Rate is effective, without notice to Borrower or any other Person, upon the
effective date of change.
If the designated interest rate applicable to any Revolving Credit Loan
exceeds the Maximum Rate, the interest rate on that Revolving Credit Loan is
limited to the Maximum Rate, but any subsequent reductions in the designated
rate shall not reduce the interest rate thereon below the Maximum Rate until the
total amount of accrued interest equals the amount of interest that would have
accrued if that designated rate had always been in effect. If at maturity
(stated or by acceleration), or at final payment of any Note, the total interest
paid or accrued is less than the interest that would have accrued if the
designated rates had always been in effect, then, at that time and to the extent
permitted by applicable law, Borrower shall pay an amount equal to the
difference between (a) the lesser of (i) the amount of interest that would have
------
accrued if the designated rates had always been in effect and (ii) the amount of
interest that would have accrued if the Maximum Rate had always been in effect,
and (b) the amount of interest actually paid or accrued on the applicable Note.
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<PAGE>
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
------------------------------------------------
4.01 Payments.
--------
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made
by Borrower under this Agreement and the Notes, and, except to the extent
otherwise provided therein, all payments to be made by the Obligors under
any other Basic Document, shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the
Administrative Agent at its account at the Principal Office, not later than
12:00 p.m., noon, Dallas, Texas time on the date on which such payment
shall become due (each such payment made after such time on such due date
to be deemed to have been made on the next succeeding Business Day).
(b) Borrower shall, at the time of making each payment under this
Agreement or any Note for the account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s)
thereof) the Revolving Credit Loans, Reimbursement Obligations or other
amounts payable by Borrower hereunder to which such payment is to be
applied (and in the event that Borrower fails to so specify, or if an Event
of Default has occurred and is continuing, the Administrative Agent may
distribute such payment to the Lenders for application in such manner as it
or the Majority Lenders, subject to Section 4.02, may determine to be
appropriate).
(c) Except to the extent otherwise provided in the second sentence
of Section 2.03(g), each payment received by the Administrative Agent under
this Agreement or any Note for the account of any Lender shall be paid by
the Administrative Agent to such Lender, in immediately available funds,
(x) if the payment was actually received by the Administrative Agent prior
to 12:00 p.m., noon (Dallas, Texas time) on any day, on such day and (y) if
the payment was actually received by the Administrative Agent after 12:00
p.m., noon (Dallas, Texas time) on any day, on the following Business Day
(it being understood that to the extent that any such payment is not made
in full by the Administrative Agent, the Administrative Agent shall pay to
such Lender, upon demand, interest at the Federal Funds Rate from the date
such amount was required to be paid to such Lender pursuant to the
foregoing clauses until the date the Administrative Agent pays such Lender
the amount).
(d) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be
payable for any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided herein:
------------------
(a) each borrowing of Revolving Credit Loans from the Lenders under Section 2.01
shall be made from the relevant Lenders, each payment of commitment fee under
Section 2.05 in respect of Revolving Credit Commitments shall be made for
account of the relevant Lenders, and each termination or
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reduction of the amount of the Revolving Credit Commitments under Section 2.04
shall be applied to the respective Revolving Credit Commitments of the relevant
Lenders, pro rata according to the amounts of their respective Revolving Credit
--- ----
Commitments; (b) except as otherwise provided in Section 5.04, LIBOR Loans
having the same Interest Period shall be allocated pro rata among the relevant
--- ----
Lenders according to the amounts of their respective Revolving Credit
Commitments (in the case of the making of Revolving Credit Loans) or their
respective Revolving Credit Loans (in the case of Conversions and Continuations
of Revolving Credit Loans); (c) each payment or prepayment of principal of
Revolving Credit Loans by Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the respective unpaid outstanding principal
--- ----
amounts of the Revolving Credit Loans held by them; and (d) each payment of
interest on Revolving Credit Loans by Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the amounts of interest on such
--- ----
Revolving Credit Loans then due and payable to the respective Lenders.
4.03 Computations. Interest on LIBOR Loans and commitment fees and letter
------------
of credit fees shall be computed on the basis of a year of 360 days (unless the
calculation would result in an interest rate greater than the Maximum Rate, in
which event interest will be calculated on the basis of a year of 365 or 366
days, as the case may be) and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable, and interest
on Alternate Base Rate Loans and Reimbursement Obligations shall be computed on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed (including the first day but excluding the last day) occurring in the
period for which payable. Notwithstanding the foregoing, for each day that the
Alternate Base Rate is calculated by reference to the Federal Funds Rate,
interest on Alternate Base Rate Loans and Reimbursement Obligations shall be
computed on the basis of a year of 360 days and actual days elapsed (including
the first day but excluding the last day).
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant to
---------------
Section 2.10 and Conversions or prepayments made pursuant to Section 5.04, each
borrowing, Conversion and prepayment of principal of Revolving Credit Loans
shall be in an amount at least equal to $1,000,000 with respect to Alternate
Base Rate Loans and$1,000,000 with respect to LIBOR Loans and in multiples of
$100,000 in excess thereof (borrowings, Conversions or prepayments of or into
Revolving Credit Loans of different Types or, in the case of LIBOR Loans, having
different Interest Periods at the same time hereunder to be deemed separate
borrowings, Conversions and prepayments for purposes of the foregoing, one for
each Type or Interest Period). Anything in this Agreement to the contrary
notwithstanding, the aggregate principal amount of LIBOR Loans having the same
Interest Period shall be in an amount at least equal $10,000,000 and in
multiples of $500,000 in excess thereof and, if any LIBOR Loans would otherwise
be in a lesser principal amount for any period, such Revolving Credit Loans
shall be Alternate Base Rate Loans during such period.
4.05 Certain Notices. Notices by Borrower to the Administrative Agent of
---------------
terminations or reductions of the Revolving Credit Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Revolving Credit Loans
and of Types of Revolving Credit Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the
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<PAGE>
Administrative Agent not later than 11:00 a.m. Dallas, Texas time on the number
of Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
===========================================================================
Number of Business
Notice Days Prior
---------------------------------------------------------------------------
Termination or reduction of Revolving Credit 3
Commitments
---------------------------------------------------------------------------
Borrowing or optional prepayment of, or Conversions same day
into, Alternate Base Rate Loans
---------------------------------------------------------------------------
Borrowing or optional prepayment of, Conversions into, 3
Continuations as, or duration of Interest Period for,
LIBOR Loans
===========================================================================
Each such notice of termination or reduction shall specify the amount of the
Revolving Credit Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or prepayment shall specify the amount
(subject to Section 4.04) and Type of each Revolving Credit Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or prepayment (which shall be a Business Day). Each such notice of
the duration of an Interest Period shall specify the Revolving Credit Loans to
which such Interest Period is to relate. The Administrative Agent shall
promptly notify the Lenders of the contents of each such notice. In the event
that Borrower fails to select the Type of Revolving Credit Loan, or the duration
of any Interest Period for any LIBOR Loan, within the time period and otherwise
as provided in this Section 4.05, such Revolving Credit Loan (if outstanding as
a LIBOR Loan) will be automatically Converted into an Alternate Base Rate Loan
on the last day of the then current Interest Period for such LIBOR Loan or (if
outstanding as an Alternate Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, an Alternate Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
------------------------------------------------
Administrative Agent shall have received written notice from a Lender or
Borrower (the "Payor") prior to the time on which the Payor is to make payment
-----
to the Administrative Agent of (in the case of a Lender) the proceeds of a
Revolving Credit Loan to be made by such Lender hereunder or (in the case of
Borrower) a payment to the Administrative Agent for the account of one or more
of the Lenders hereunder (such payment being herein called the "Required
--------
Payment"), which notice shall be effective upon receipt, that the Payor does not
- -------
intend to make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment has been made and may,
in reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date; and, if the Payor
has not in fact made the Required Payment to the Administrative Agent, the
recipient(s) of such payment shall, on demand, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date (the "Advance Date") such amount
------------
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was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to the
--- -----
Federal Funds Rate for such day and, if such recipient(s) shall fail promptly to
make such payment, the Administrative Agent shall be entitled to recover such
amount, on demand, from the Payor, together with interest as aforesaid;
provided, however, that if neither the recipient(s) nor the Payor shall return
- -------- -------
the Required Payment to the Administrative Agent within three Business Days of
the Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows (without double recovery):
(i) if the Required Payment shall represent a payment to be
made by Borrower to the Lenders, Borrower and the recipient(s) shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the Post-Default Rate (without
duplication of the obligation of Borrower under Section 3.02 to pay
interest on the Required Payment at the Post-Default Rate), it being
understood that the return by the recipient(s) of the Required Payment
to the Administrative Agent shall not limit such obligation of
Borrower under Section 3.02 to pay interest at the Post-Default Rate
in respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a
Revolving Credit Loan to be made by the Lenders to Borrower, the Payor
and Borrower shall each be obligated retroactively to the Advance Date
to pay interest in respect of the Required Payment pursuant to Section
3.02, it being understood that the return by Borrower of the Required
Payment to the Administrative Agent shall not limit any claim Borrower
may have against the Payor in respect of such Required Payment.
4.07 Right of Setoff; Sharing of Payments, Etc.
------------------------------------------
(a) Each Obligor agrees that, in addition to (and without limitation
of) any right of setoff, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the
fullest extent permitted by law), to set off and apply any deposit (general
or special, time or demand, provisional or final), or other indebtedness,
held by it for the credit or account of such Obligor at any of its offices,
in Dollars or in any other currency, against any principal of or interest
on any of such Lender's Revolving Credit Loans, Reimbursement Obligations
or any other amount payable to such Lender hereunder that is not paid when
due (regardless of whether such deposit or other indebtedness is then due
to such Obligor), in which case it shall promptly notify such Obligor and
the Administrative Agent thereof; provided, however, that such Lender's
-------- -------
failure to give such notice shall not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other
than pursuant to Section 5) any amount hereunder (whether by voluntary
payment, by realization upon security, by the exercise of the right of
setoff or banker's lien, by counterclaim or cross action, by the
enforcement of any right under the Basic Documents, or otherwise) which is
applicable to the payment of the principal of, or interest on, the
Revolving Credit Loans,
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Reimbursement Obligations or fees, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion
than the total of such amounts then owed and due to such Lender bears to
the total of such amounts then owed and due to all of the Lenders
immediately prior to such receipt, then such Lender receiving such excess
payment shall purchase for cash without recourse or warranty from the other
Lenders an interest in the Obligations of the respective Obligor to such
Lenders in such amount as shall result in a proportional participation by
all of the Lenders in such amount; provided, however, that if all or any
-------- -------
portion of such excess amount is thereafter recovered from such Lender,
such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. Borrower consents to the
foregoing arrangements.
(c) Borrower agrees that any Lender so purchasing such a
participation may exercise all rights of setoff, banker's lien,
counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Revolving Credit Loans or other
amounts (as the case may be) owing to such Lender in the amount of such
participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section 4.07 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders
entitled under this Section 4.07 to share in the benefits of any recovery
on such secured claim.
4.08 Maximum Rate. Regardless of any provision contained in any Basic
------------
Document, no Lender is entitled to contract for, charge, take, reserve, receive,
or apply, as interest on all or any part of the Obligations, any amount in
excess of the Maximum Rate, and, if Lenders ever do so, then any excess shall be
treated as a partial prepayment of principal and any remaining excess shall be
refunded to Borrower. In determining if the interest paid or payable exceeds
the Maximum Rate, Borrower and Lenders shall, to the maximum extent permitted
under applicable law, (a) treat all Revolving Credit Loans as but a single
extension of credit (and Lenders and Borrower agree that is the case and that
provision in this Agreement for multiple Revolving Credit Loans is for
convenience only), (b) characterize any nonprincipal payment as an expense, fee,
or premium rather than as interest, (c) exclude voluntary prepayments and their
effects, and (d) amortize, prorate, allocate, and spread the total amount of
interest throughout the entire contemplated term of the Obligations. However,
if the Obligation is paid in full before the end of their full contemplated
term, and if the interest received for its actual period of existence exceeds
the Maximum Amount, Lenders shall refund any excess (and Lenders may not, to the
extent permitted by applicable law, be subject to any penalties provided by any
applicable laws for contracting for, charging, taking, reserving, or receiving
interest in excess of the Maximum Amount). If the laws of the State of Texas
are applicable for purposes of determining the AMaximum Rate@ or the AMaximum
Amount,@ then those terms mean the Aweekly ceiling@ from time to time in effect
under Chapter 303 of the Texas Finance
-----------
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<PAGE>
Code, as amended. Borrower agrees that Chapter 346 of The Texas Finance Code, as
-----------
amended (which regulates certain revolving credit loan accounts and revolving
triparty accounts), does not apply to the Obligations.
Section 5. Yield Protection, Etc.
----------------------
5.01 Additional Costs.
----------------
(a) If the adoption of, or any change in, any Requirement of Law or
in the interpretation or application thereof or compliance by any Lender
with any request or directive (whether or not having the force of law) from
any central bank or other Governmental Authority or the NAIC made
subsequent to the Original Closing Date (or, with respect to Existing
Letters of Credit originally issued prior to the Original Closing Date,
made subsequent to their date of issuance without regard to any deemed
issuance on the Original Closing Date for purposes of Section 2.03):
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit or any Lender's participation therein, any Letter of Credit
Document or any LIBOR Loan made by it or change the basis of taxation
of payments to such Lender in respect thereof (except for taxes
covered by Section 5.06 and changes in the rate of tax on the overall
net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the LIBOR Rate hereunder,
including, without limitation, the imposition of any reserves with
respect to the Eurocurrency Liabilities under Regulation D; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining LIBOR Loans or issuing or
participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof then, in any such case, Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary
to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify Borrower, through the
Administrative Agent, of the event by reason of which it has become so
entitled. A certificate as to any additional amounts pursuant to this
Section 5.01 submitted by such Lender, through the Administrative Agent, to
Borrower shall be conclusive in the absence of clearly demonstrable error.
This covenant shall survive the
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<PAGE>
termination of this Agreement and the payment of the Notes all other
amounts payable hereunder.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule, regulation or guideline regarding capital
adequacy (or any change therein or in the interpretation or application
thereof) or compliance by any Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any central bank or Governmental
Authority, including, without limitation, the issuance of any final rule,
regulation or guideline, does or shall have the effect of reducing the rate
of return on such Lender's or such corporation's capital as a consequence
of its obligations hereunder or under any Letter of Credit to a level below
that which such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after
submission by such Lender to Borrower (with a copy to the Administrative
Agent) of a written request therefor, Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction.
(c) Each Lender shall notify Borrower of any event occurring after
the date of this Agreement that will entitle such Lender to compensation
under paragraph (a) or (b) of this Section 5.01 as promptly as practicable,
but in any event within 120 days after such Lender obtains actual knowledge
thereof; provided, however, that if any Lender fails to give such notice
-------- -------
within 120 days after it obtains actual knowledge of such an event, such
Lender shall, with respect to compensation payable pursuant to this Section
5.01 in respect of any costs resulting from such event, only be entitled to
payment under this Section 5.01 for costs incurred from and after the date
120 days prior to the date that such Lender does give such notice. Each
Lender will furnish to Borrower a certificate setting forth the basis,
amount and reasonable detail of computation of each request by such Lender
for compensation under paragraph (a) or (b) of this Section 5.01, which
certificate shall, except for demonstrable error, be final, conclusive and
binding for all purposes.
5.02 Limitation on Types of Revolving Credit Loans. Anything herein to
---------------------------------------------
the contrary notwithstanding, if, on or prior to the determination of any LIBOR
Base Rate for any Interest Period:
(i) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the
relevant deposits referred to in the definition of "LIBOR Base Rate"
in Section 1.01 are not being provided in the relevant amounts or for
the relevant maturities for purposes of determining rates of interest
for LIBOR Loans as provided herein; or
(ii) the Majority Lenders determine, which determination shall
be conclusive, that the relevant rates of interest referred to in the
definition of "LIBOR Base Rate" in Section 1.01 upon the basis of
which the rate of interest for LIBOR
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<PAGE>
Loans for such Interest Period is to be determined are not likely
adequately to cover the cost to the applicable Lenders of making or
maintaining LIBOR Loans for such Interest Period,
then the Administrative Agent shall give Borrower and each Lender prompt notice
thereof, and so long as such condition remains in effect, the affected Lenders
shall be under no obligation to make additional LIBOR Loans, to continue LIBOR
Loans or to Convert Alternate Base Rate Loans into LIBOR Loans and Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding LIBOR Loans, either prepay such Revolving Credit Loans or Convert
such Revolving Credit Loans into Alternate Base Rate Loans in accordance with
Section 2.09.
5.03 Illegality. Notwithstanding any other provision of this Agreement,
----------
in the event that any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender or its Applicable
Lending Office to honor its obligation to make or maintain LIBOR Loans hereunder
(and, in the sole opinion of such Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender), then such Lender shall promptly notify Borrower
thereof (with a copy to the Administrative Agent) and such Lender's obligation
to make or Continue, or to Convert Loan of any other Type into, LIBOR Loans
shall be suspended until such time as such Lender may again make and maintain
LIBOR Loans (in which case the provisions of Section 5.04 shall be applicable).
5.04 Treatment of Affected Revolving Credit Loans. If the obligation of
--------------------------------------------
any Lender to make LIBOR Loans or to Continue, or to Convert Alternate Base Rate
Loans into, LIBOR Loans shall be suspended pursuant to Section 5.03, such
Lender's LIBOR Loans shall be automatically Converted into Alternate Base Rate
Loans on the last day(s) of the then current interest Period(s) for such LIBOR
Loans (or on such earlier date as such Lender may specify to Borrower with a
copy to the Administrative Agent as is required by law) and, unless and until
such Lender gives notice as provided below that the circumstances specified in
Section 5.03 which gave rise to such Conversion no longer exist:
(i) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal which would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Alternate Base Rate Loans; and
(ii) all Revolving Credit Loans which would otherwise be made
or Continued by such Lender as LIBOR Loans shall be made or Continued
instead as Alternate Base Rate Loans and all Alternate Base Rate Loans
of such Lender which would otherwise be Converted into LIBOR Loans
shall remain as Alternate Base Rate Loans.
If such Lender gives notice to Borrower with a copy to the Administrative Agent
that the circumstances specified in Section 5.03 which gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section 5.04 no longer
exist (which such Lender agrees to do promptly upon
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<PAGE>
such circumstances ceasing to exist) at a time when LIBOR Loans are outstanding,
such Lender's Alternate Base Rate Loans shall be automatically Converted, on the
first day(s) of the next succeeding Interest Period(s) for such outstanding
LIBOR Loans, to the extent necessary so that, after giving effect thereto, all
Revolving Credit Loans held by the Lenders holding LIBOR Loans and by such
Lender are held pro rata (as to principal amounts, Types and Interest Periods)
--- ----
in accordance with their respective Revolving Credit Commitments.
5.05 Compensation.
------------
(a) Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any actual or direct loss or expense which such Lender may
sustain or incur as a consequence of (1) default by Borrower in payment
when due of the principal amount of or interest on any LIBOR Loan, (2)
default by Borrower in making a borrowing of, Conversion into or
Continuation of LIBOR Loans after Borrower has given a notice requesting
the same in accordance with the provisions of this Agreement, (3) default
by Borrower in making any prepayment after Borrower has given a notice
thereof in accordance with the provisions of the Agreement or (4) the
making of a payment or a prepayment of LIBOR Loans on a day which is not
the last day of an Interest Period with respect thereto, including in each
case, any such loss (including loss of margin) or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained.
(b) For the purpose of calculation of all amounts payable to a
Lender under this Section 5.05 each Lender shall be deemed to have actually
funded its relevant LIBOR Loan through the purchase of a deposit bearing
interest at the LIBOR Rate in an amount equal to the amount of the LIBOR
Loan and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
-------- -------
manner it seems fit, and the foregoing assumption shall be utilized only
for the calculation of amounts payable under this subsection. Any Lender
requesting compensation pursuant to this Section 5.05 will furnish to the
Administrative Agent and Borrower a certificate setting forth the basis and
amount of such request and such certificate, absent manifest error, shall
be conclusive. This covenant shall survive the termination of this
Agreement and the payment of the Notes and all other amounts payable
hereunder.
5.06 Net Payments.
------------
(a) All payments made by Borrower hereunder or under any Note will
be made without setoff, counterclaim or other defense. Except as provided
in Section 5.06(b), all such payments will be made free and clear of, and
without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now
or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or the
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<PAGE>
jurisdiction in which the principal office or Applicable Lending Office of
such Lender is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as "Covered Taxes"). If any Covered
-------------
Taxes are so levied or imposed, Borrower agrees to pay the full amount of
such Covered Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Covered Taxes, will
not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Covered Taxes pursuant to the preceding
sentence, Borrower agrees to reimburse each Lender, upon the written
request of such Lender, for taxes imposed on or measured by the net income
or net profits of such Lender pursuant to the laws of the jurisdiction in
which the principal office or Applicable Lending Office of such Lender is
located or under the laws of any political subdivision or taxing authority
of any such jurisdiction in which the principal office or Applicable
Lending Office of such Lender is located and for any withholding of taxes
as such Lender shall determine are payable by, or withheld from, such
Lender in respect of such amounts so paid to or on behalf of such Lender
pursuant to the preceding sentence and in respect of any amounts paid to or
on behalf of such Lender pursuant to this sentence. Borrower will furnish
to the Administrative Agent within 45 days after the date the payment of
any Covered Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by Borrower. Borrower agrees to indemnify
and hold harmless each Lender, and reimburse such Lender upon its written
request, for the amount of any Covered Taxes so levied or imposed and paid
by such Lender and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to Borrower
and the Administrative Agent on or prior to the date upon which such Lender
became a party to this Agreement, or in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to
Section 12.06 (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001 (or
successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note (or, with respect to any
assignee Lender, at least as extensive as the assigning Lender), or (ii) if
the Lender is not a "bank" within the meaning of Section 88l(c)(3)(A) of
the Code and cannot deliver either Internal Revenue Service Form 1001 or
4224 pursuant to clause (i) above, (x) a certificate substantially in the
form of Exhibit H (any such certificate, a "Section 5.06 Certificate") and
--------- ------------------------
(y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8 (or successor form) certifying to such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note (or,
with respect to any assignee Lender, at least as extensive as the assigning
Lender). In addition, each Lender agrees that from time to time after the
Original Closing Date, when
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<PAGE>
a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will
deliver to Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form 4224 or
1001, or Form W-8 and a Section 5.06 Certificate, as the case may be, and
such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in
United States withholding tax with respect to payments under this Agreement
and any Note, or it shall immediately notify Borrower and the
Administrative Agent of its inability to deliver any such Form or
Certificate. Notwithstanding anything to the contrary contained in Section
5.06(a), but subject to Section 12.06(b) and the immediately succeeding
sentence, (x) Borrower shall be entitled, to the extent it is required to
do so by law, to deduct or withhold income or similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for the
account of any Lender which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes to the extent that such Lender has not provided to Borrower U.S.
Internal Revenue Service Forms that establish a complete exemption from
such deduction or withholding and (y) Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross up payments to be made to a
Lender in respect of income or similar taxes imposed by the United States
if (I) such Lender has not provided to Borrower the Internal Revenue
Service Forms required to be provided to Borrower pursuant to this Section
5.06(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 5.06 and except as set forth in
Section 12.06(b), Borrower agrees to pay additional amounts and to
indemnify each Lender in the manner set forth in Section 5.06(a) (without
regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes
after the Original Closing Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of income or similar Covered
Taxes.
(c) In addition, Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the
Note or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (other than Oklahoma mortgage
recording tax) (hereinafter referred to as "Other Taxes").
-----------
Section 6. Guarantee.
---------
6.01 The Guarantee. The Subsidiary Guarantors hereby jointly and
-------------
severally guarantee as a primary obligor and not as a surety to each Lender and
the Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Revolving Credit Loans made
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<PAGE>
by the Lenders to, and the Notes held by each Lender of, Borrower and all other
amounts from time to time owing to the Lenders or the Administrative Agent by
Borrower under this Agreement and under the Notes and by any Obligor under any
of the other Basic Documents, and all obligations of Borrower or any Subsidiary
to any Lender or any Affiliate of any Lender in respect of any Swap Contract and
all Obligations owing to the Issuing Lender under the Letter of Credit
Documents, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
----------------------
Subsidiary Guarantors hereby further jointly and severally agree that if
Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Subsidiary
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
6.02 Obligations Unconditional. The obligations of the Subsidiary
-------------------------
Guarantors under Section 6.01 are absolute, irrevocable and unconditional, joint
and several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of Borrower under this Agreement, the Notes or
any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor (except for payment in full), it being the intent of this Section 6.02
that the obligations of the Subsidiary Guarantors hereunder shall be absolute,
irrevocable and unconditional, joint and several, under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Subsidiary Guarantors hereunder which shall remain
absolute, irrevocable and unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred
to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
this Agreement, the Notes or any other Basic Document or any other
agreement or instrument referred to herein or therein shall be
amended, modified or waived in any respect or any other guarantee of
any of the Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with;
-56-
<PAGE>
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any
of the Guaranteed Obligations shall fail to be perfected; or
(v) the release of any other Subsidiary Guarantor.
This guarantee shall be construed as a continuing, absolute, irrevocable and
unconditional guarantee of payment without regard to any right of offset with
respect to the Guaranteed Obligations at any time or from time to time held by
the Lenders, and the obligations and liabilities of the Subsidiary Guarantors
hereunder shall not be conditioned or contingent upon the pursuit by the Lenders
or any other Person at any time of any right or remedy against Borrower or
against any other Person which may be or become liable in respect of all or any
part of the Guaranteed Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. This guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Subsidiary Guarantors and the successors and
assigns thereof, and shall inure to the benefit of the Lenders, and their
respective successors and assigns, notwithstanding that from time to time during
the term of this Agreement there may be no Guaranteed Obligations outstanding.
6.03 Reinstatement. The obligations of the Subsidiary Guarantors under
-------------
this Section 6 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise and the Subsidiary Guarantors jointly and
severally agree that they will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including reasonable
fees of counsel) incurred by the Administrative Agent or such Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law, other than any costs or expenses
resulting from the gross negligence or bad faith of such Creditor.
6.04 Subrogation; Subordination. Each Subsidiary Guarantor hereby agrees
--------------------------
that until the indefeasible payment and satisfaction in full in cash of all
Guaranteed Obligations and the expiration and termination of the Revolving
Credit Commitments of the Lenders under this Agreement it shall not exercise any
right or remedy arising by reason of any performance by it of its guarantee in
Section 6.01, whether by subrogation or otherwise, against Borrower or any other
guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations. The payment of any amounts due with respect to any
indebtedness of Borrower or any other Subsidiary Guarantor now or hereafter
owing to any Subsidiary Guarantor by reason of any payment by such Subsidiary
Guarantor under the Guarantee in this Section 6 is hereby subordinated to the
prior indefeasible payment in full in cash of the Guaranteed Obligations. Each
Subsidiary Guarantor agrees that it will not demand, sue for or otherwise
attempt to collect any such indebtedness of Borrower to such Subsidiary
Guarantor until the obligations shall have been indefeasibly paid in full in
cash. If, notwithstanding the foregoing sentence, any Subsidiary Guarantor shall
prior to the indefeasible payment in full in cash of the Guaranteed Obligations
collect, enforce or receive any amounts in
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<PAGE>
respect of such indebtedness, such amounts shall be collected, enforced and
received by such Subsidiary Guarantor as trustee for the Administrative Agent
and the Lenders and be paid over to the Administrative Agent on account of the
Guaranteed Obligations without affecting in any manner the liability of such
Subsidiary Guarantor under the other provisions of the guaranty contained
herein.
6.05 Remedies. The Subsidiary Guarantors jointly and severally agree
--------
that, as between the Subsidiary Guarantors and the Lenders, the obligations of
Borrower under this Agreement and the Notes may be declared to be forthwith due
and payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 10)
for purposes of Section 6.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by Borrower)
shall forthwith become due and payable by the Subsidiary Guarantors for purposes
of Section 6.01.
6.06 Waivers. Each Subsidiary Guarantor hereby expressly waives (a) all
-------
defenses to the enforcement of this guarantee (and all rights which may be
asserted as defenses to the enforcement of this guarantee), other than payment,
including, but not limited to, (i) any right to revoke this guarantee with
respect to future indebtedness; (ii) any right to require the Administrative
Agent or Lenders to do any of the following before any Subsidiary Guarantor is
obligated to pay the Guaranteed Obligations or before Administrative Agent or
Lenders may proceed against such Subsidiary Guarantor: (A) sue or exhaust
remedies against the Borrower and other guarantors or obligors, (B) sue on an
accrued right of action in respect of any of the Guaranteed Obligations or bring
any other action, exercise any other right, or exhaust all other remedies, or
(C) enforce rights against Borrower's assets or the collateral pledged by
Borrower to secure the Guaranteed Obligations; (iii) any right relating to the
timing, manner, or conduct of Administrative Agent's or Lenders' enforcement of
rights against Borrower's assets or the collateral pledged by Borrower to secure
the Guaranteed Obligations; (iv) if Subsidiary Guarantors and Borrower (or a
third party) have each pledged assets to secure the Guaranteed Obligations, any
right to require Administrative Agent and Lenders to proceed first against the
other collateral before proceeding against collateral pledged by any Subsidiary
Guarantor; (v) any right of any Subsidiary Guarantor to receive notice from
Administrative Agent or Lenders of changes which affect the creditworthiness of
Borrower, (vi) any and all notice of the creation, renewal, extension, waiver,
termination or accrual of any of the Guaranteed Obligations and notice of or
proof of reliance by any Lender upon this guarantee or acceptance of this
guarantee (and the Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this
guarantee, and all dealings between Borrower and the Lenders shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
guarantee), and (vii) except as required hereby, presentation, presentment,
demand for payment, protest, notice of protest, notice of dishonor or nonpayment
of any indebtedness, notice of intent to accelerate, notice of acceleration,
notice of any suit or other action by Administrative Agent or Lenders against
Borrower, any Subsidiary Guarantor or any other Person and any notice to any
party liable for the obligation which is the subject of the
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suit or action, and (b) each of the foregoing rights or defenses regardless
whether they arise under (i) Section 34.01 et seq., of the Texas Business and
----------------------
Commerce Code, as amended, (ii) Section 17.001 of the Texas Civil Practice and
--------------
Remedies Code, as amended, (iii) Rule 31 of the Texas Rules of Civil Procedure,
-------
as amended, or (iv) common law, in equity, under contract, by statute, or
otherwise.
6.07 Continuing Guarantee. The guarantee in this Section 6 is a
--------------------
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08 General Limitation on Guarantee Obligations. In any action or
-------------------------------------------
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.01 would otherwise be held or determined to be void, voidable, invalid
or unenforceable, or subordinated to the claims of any other creditors, on
account of the amount of its liability under Section 6.01, then, notwithstanding
any other provision to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, any Lender, the Administrative
Agent or any other Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
Section 7. Conditions Precedent.
--------------------
7.01 [Reserved]
7.02 Initial and Subsequent Extensions of Credit. Except as set forth in
-------------------------------------------
Section 2.03, the obligation of the Lenders to make any Revolving Credit Loan or
otherwise extend any credit to Borrower upon the occasion of each borrowing or
other extension of credit hereunder (including the initial borrowing) is subject
to the conditions precedent that:
(i) Both immediately prior to the making of such Revolving
Credit Loan or other extension of credit and also after giving pro
---
forma effect thereto and to the intended use thereof:
-----
(a) no Default or Event of Default shall have occurred and
be continuing; and
(b) the representations and warranties made by the Obligors
in Section 8, and by each obligor in each of the other Basic
Documents to which it is a party, shall be true and complete on
and as of the date of the making of such Revolving Credit Loan or
other extension of credit with the same force and effect as if
made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific
date, as of such specific date).
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(ii) No material litigation, investigation or proceeding before
or by any arbitrator or Governmental Authority shall be continuing or
threatened against any Obligor or any of the officers or directors of
any thereof in connection with any Basic Document or any of the
transactions contemplated hereby or thereby.
(iii) The Revolving Credit Loans and the use of proceeds thereof
shall not contravene, violate or conflict with, nor involve any Lender
in a violation of, any law, rule, injunction, or regulation or
determination of any court of law or other Governmental Authority.
Each notice of borrowing or request for the issuance of a Letter of Credit
by Borrower hereunder shall constitute a certification by Borrower to the effect
set forth in clause (i) above (both as of the date of such notice or request
and, unless Borrower otherwise notifies the Administrative Agent prior to the
date of such borrowing or issuance, as of the date of such borrowing or
issuance).
Each notice submitted by Borrower hereunder for an extension of credit
hereunder shall constitute a representation and warranty by Borrower, as of the
date of such notice and as of the relevant borrowing date or date of issuance of
a Letter of Credit, as applicable, that the applicable conditions in Sections
7.02 and 7.03 are satisfied.
7.03 Conditions to Effectiveness of this Agreement. The effectiveness of
---------------------------------------------
this Agreement is subject to the satisfaction of the conditions precedent that:
(i) Second Amended and Restated Credit Agreement. On the date
--------------------------------------------
hereof, this Agreement shall have been duly authorized, executed and
delivered to the Lenders by each Obligor in form and substance
satisfactory to the Administrative Agent and the Lenders.
(ii) Documentation and Evidence of Certain Matters. The
---------------------------------------------
Administrative Agent shall have received on the date hereof the
following documents, each duly executed where appropriate (with
sufficient copies for each Lender), each of which shall be reasonably
satisfactory to the Administrative Agent (and to the extent specified
below, to each Lender) in form and substance:
(1) Corporate Documents. Certified copies of all corporate
-------------------
authority for each Obligor (including board of directors
resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution, delivery
and performance of this Agreement and the Notes.
(2) Officers' Certificate. An Officers' Certificate of
---------------------
Borrower, dated the date hereof, to the effect set forth in
clauses (a) and (b) of Section 7.02(i).
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(3) Opinion of Counsel. Opinion of Haynes and Boone,
------------------
L.L.P., special counsel to the Obligors, substantially in the
form of Exhibit E and dated the date hereof (and each Obligor
---------
hereby instructs such counsel to deliver such opinion to the
Lenders, the Administrative Agent).
(4) Notes. The Notes, duly completed and executed for each
-----
Lender.
(5) Modification Agreements. Modification agreements duly
-----------------------
completed and executed by the Administrative Agent and the
applicable Obligor, modifying the Mortgages to reflect the
transactions contemplated by this Agreement.
(6) Assignment and Assumption Agreement. An assignment and
-----------------------------------
assumption agreement, duly completed and executed by the
Assignors and the Assignees, evidencing the assignments and
assumptions contemplated in Section 1.05 of this Agreement.
------------
(iii) Absence of Certain Proceedings. There shall not exist
------------------------------
any threatened, instituted or pending Proceeding (i) challenging the
consummation of the transactions to occur on the date hereof or (ii)
seeking to obtain, or having resulted in the entry of, any judgment,
order, injunction or other restraint that (A) would restrain or
prohibit, or impose adverse conditions upon, the ability of the
Lenders to make the Revolving Credit Loans or the consummation of the
transactions to occur on the date hereof, (B) could be reasonably
expected to have a Material Adverse Effect or (C) could purport to
affect the legality, validity or enforceability of the Basic Documents
or any document relating thereto, and in the case of (i) and (ii)
there is a reasonable possibility that such action, proceeding or
counterclaim would be successful on the merits.
(iv) Certain Approvals. All governmental and other third-party
-----------------
approvals necessary in connection with the transactions to occur on
the date hereof, the financing contemplated hereby and the continuing
operations of Borrower and the Subsidiaries shall have been obtained
and shall be in full force and effect on the date hereof.
(v) Absence of Certain Events. Since the Original Closing Date,
-------------------------
there shall not have occurred or become known any change, event or
circumstance, or any development involving a prospective change, event
or circumstance, which in any case in the opinion of the Lenders could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. The Lenders' ongoing diligence investigation
shall not have disclosed information, and the Lenders shall not have
otherwise discovered information not previously disclosed to them,
that the Lenders believe has had or would have, individually or in the
aggregate, a Material Adverse
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<PAGE>
Effect or a material adverse effect on the tax or accounting
consequences of any transactions contemplated hereby.
(vi) Accuracy of Representations and Warranties. The
------------------------------------------
representations and warranties in Section 8 shall be true and correct
in all material respects on and as of the date hereof with the same
effect as if made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in
which case they shall be true and correct as of such earlier date).
(vii) Liens. The Administrative Agent shall have received
-----
satisfactory evidence (other than the UCC-3 Financing Statement
Terminations required under Section 9.25 hereof) that all Liens
------------
required to be granted to the Administrative Agent for the benefit of
the Lenders pursuant to the Security Documents shall have been
properly created and perfected, and that such Liens are subject to no
other Liens other than Permitted Liens and Prior Liens.
(viii) Other Matters. The Lenders shall have received such
-------------
other legal opinions, corporate documents and other instruments and/or
certificates as they may reasonably request.
(ix) Fees. Borrower shall have paid such fees and expenses as
----
Borrower shall have agreed to pay in connection herewith, including
counsel fees and expenses and all fees described in the Fee Letter
which are due and payable on the "Closing Date."
Section 8. Representations and Warranties.
------------------------------
Each Obligor represents and warrants to the Creditors on the date hereof
(immediately before and immediately after giving effect to the transactions
contemplated to occur on such date) and on the date of each extension of credit
hereunder that:
8.01 Corporate Existence. Each of Borrower and each Subsidiary: (a)
-------------------
is a corporation, partnership or other entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization; (b)
has all requisite corporate or other power and authority, and has all material
governmental licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being conducted; and (c) is
qualified to transact business and is in good standing in all jurisdictions in
which the nature of the business conducted by it makes such qualification
necessary and where failure to be so qualified and in good standing would
reasonably be expected to (either individually or in the aggregate) have a
Material Adverse Effect.
8.02 Financial Condition; Etc.
-------------------------
(a) Borrower has heretofore delivered to the Lenders (A) the
audited consolidated balance sheets of Borrower and the Subsidiaries as of
December 31, 1997 and December 31,
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<PAGE>
1998, and the related statements of earnings, changes in stockholders'
equity and cash flows for the fiscal years ended on those dates, together
with reports thereon by Ernst & Young LLP, certified public accountants,
and (B) the unaudited consolidated balance sheets of Borrower and the
Subsidiaries as of March 31, 1999 and June 30, 1999, and the related
statements of earnings and cash flows for the fiscal periods ended on March
31, 1999 and June 30, 1999, respectively, together with review reports
thereon by Ernst & Young LLP, certified public accountants. All of said
financial statements, including in each case the related schedules and
notes, are true, complete (in the case of year-end financial statements)
and correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently applied (except that
no notes have been included in unaudited financial statements) and present
fairly the financial position of Borrower and the Subsidiaries as of the
respective dates of said balance sheets and the results of their operations
for the respective periods covered thereby, subject (in the case of interim
statements) to period-end audit adjustments.
(b) Except as set forth in Schedule 8.02 or in the financial
-------------
statements referred to in Section 8.02(a), neither Borrower nor any
Subsidiary has any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or anticipated losses from any
unfavorable commitments.
(c) Except as set forth in the financial statements referred to in
Section 8.02(a), since December 31, 1998 there has been no Material Adverse
Effect, or any event, change or circumstance which could reasonably be
expected to cause or evidence, either individually or together with any
other events, changes or circumstances, a Material Adverse Effect.
(d) All pro forma financial information and projections provided at
--- -----
any time by or on behalf of Borrower to the Lenders are accurate and
complete in all material respects as of the date of such information and
all pro forma adjustments given effect therein are based upon assumptions
--- -----
which Borrower believes to be fair and reasonable.
8.03 Litigation. Except as disclosed in Schedule 8.03, there are no
---------- -------------
Proceedings or investigations now pending or (to the knowledge of the Obligors)
threatened against or directly affecting Borrower or any Subsidiary that, if
adversely determined could (either individually or in the aggregate) be
reasonably expected to have a Material Adverse Effect.
8.04 No Breach; No Default.
---------------------
(a) None of the execution, delivery and performance by each Obligor
of any Basic Document or any Document to which it is a party and the
consummation of the transactions herein and therein contemplated will (i)
conflict with or result in a breach of, or require any consent (which has
not been obtained and is in full force and effect) under, the charter or
by-laws of any Obligor, or any applicable law or regulation, or any order,
writ, injunction or decree of any Governmental Authority binding on any
Obligor, or any term or provision of any agreement or instrument to which
any Obligor or any of its Subsidiaries is
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<PAGE>
a party or by which any of them or any of their Property is bound or to
which any of them is subject, or (ii) constitute (with due notice or lapse
of time or both) a default under any such agreement or instrument, or (iii)
result in the creation or imposition of any Lien (except for the Liens
created pursuant to the Security Documents) upon any Property of any
Obligor or any of its Subsidiaries pursuant to the terms of any such
agreement or instrument, except with respect to each of the foregoing which
would not (either individually or in the aggregate) reasonably be expected
to have a Material Adverse Effect.
(b) Neither Borrower nor any Subsidiary is in default under or with
respect to any contractual obligation or any order, award or decree of any
Governmental Authority or arbitrator binding upon it or any of its
properties in any respect which would have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
8.05 Action. Each Obligor has all necessary corporate power, authority
------
and legal right to execute, deliver and perform its obligations under each Basic
Document and each Document to which it is a party and to consummate the
transactions herein and therein contemplated; the execution, delivery and
performance by each Obligor of each Basic Document and each Document to which it
is a party and the consummation of the transactions herein and therein
contemplated have been duly authorized by all necessary corporate action on its
part; and this Agreement has been duly and validly executed and delivered by
each Obligor and constitutes, and each of the Notes, the other Basic Documents
and the Documents to which it is a party when executed and delivered by such
Obligor (in the case of the Notes, for value) will constitute, its legal, valid
and binding obligation, enforceable against each Obligor in accordance with its
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of
general applicability from time to time in effect affecting the enforcement of
creditors' rights and remedies and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
8.06 Approvals. Except as set forth on Schedule 8.06, no authorizations,
--------- -------------
approvals or consents of, and no filings or registrations with, any Governmental
Authority or any securities exchange are necessary for the execution, delivery
or performance by any Obligor of the Basic Documents or Documents to which it is
a party or for the legality, validity or enforceability hereof or thereof or for
the consummation of the transactions herein and therein contemplated, except for
filings and recordings in respect of the Liens created pursuant to the Security
Documents.
8.07 ERISA. Each member of the ERISA Group (x) has fulfilled its
-----
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and (y) is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan
other than any failure to so comply that could not reasonably be expected to
have a Material Adverse Effect. No member of the ERISA Group has (i) sought a
waiver of the minimum funding standard under Section 412 of the Code in respect
of any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement , which has resulted or could
reasonably be expected to result in the imposition of a Lien or the posting of a
bond or other
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<PAGE>
security under ERISA or the Code or (iii) incurred or reasonably expects to
incur any liability under Title IV of ERISA that would have a Material Adverse
Effect. Neither Borrower nor any Subsidiary has incurred any material obligation
in connection with the termination of or withdrawal from any Foreign Pension
Plan.
8.08 Taxes. Borrower and each Subsidiary has filed or caused to be filed
-----
all tax returns which to the knowledge of Borrower are required to be filed and
has paid all Taxes shown to be due and payable on said returns or on any
assessments made against it or any of its Property and all other Taxes, fees or
other charges imposed on it or any of its Property (including the Mortgaged Real
Property) by any Governmental Authority (other than those which, in the
aggregate, are not substantial in amount or those the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of Borrower or the Subsidiaries, as the case may be); and no tax lien has
been filed and, to the knowledge of Borrower, no claim is being asserted with
respect to any such Tax, fee or other charge.
8.09 Investment Company Act; Public Utility Holding Company Act; Other
-----------------------------------------------------------------
Restrictions. Neither Borrower nor any Subsidiary is an "investment company",
- ------------
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. Neither Borrower nor any Subsidiary
is a "holding company", or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended. No Obligor is subject to
regulation under any federal or state statute or regulation which limits its
ability to incur Indebtedness.
8.10. No Burdensome Restrictions. No contractual obligation of Borrower
--------------------------
or any Subsidiary and no requirement of law materially adversely affects, or
insofar as Borrower could reasonably foresee may so affect, the business,
operations, property or financial or other condition of Borrower and the
Subsidiaries taken as a whole.
8.11. Capitalization. As of the close of business on the Business Day
--------------
immediately preceding the date hereof, the authorized stock of Borrower consists
of: 40,000,000 shares of Common Stock, $0.10 par value, of which 16,546,041
shares are issued and outstanding; and 8,000,000 shares of Preferred Stock,
$0.10 par value, of which no shares are issued and outstanding.
8.12. Environmental Matters. Except as disclosed in Schedule 8.12 and
--------------------- -------------
except as would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect: (i) Borrower and the Subsidiaries are in
compliance with and in the last five years have been in compliance with, and are
not subject to liability under, any Environmental Laws applicable to them and
their business and operations and facilities and properties owned, leased,
operated or used by any of them, (ii) neither Borrower nor any Subsidiary has
received notice that it has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), or any comparable foreign or state law, nor has
------
Borrower or any Subsidiary received any written notification that any Hazardous
Materials that it or any of their respective predecessors in interest has used,
generated, stored, treated, handled,
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<PAGE>
transported or disposed of, or arranged for disposal or treatment of, have been
found at any site at which any Person is conducting or plans to conduct any
action pursuant to any Environmental Law; (iii) no properties now or formerly
owned, leased or operated by Borrower or any Subsidiary or, to the knowledge of
Borrower or any Subsidiary, any of their respective predecessors in interest,
are (x) listed or proposed for listing on the National Priorities List under
CERCLA or (y) listed on the Comprehensive Environmental Response, Compensation
and Liability Information System List promulgated pursuant to CERCLA or (z)
included on any comparable lists maintained by any Governmental Authority; (iv)
there are no past or present events, conditions, activities, practices or
actions, or any agreements, judgments, decrees or orders by which Borrower or
any Subsidiary is bound, which would reasonably be expected to prevent Borrower
and the Subsidiaries' compliance with any Environmental Law, or which would
reasonably be expected to give rise to any liability of Borrower or any
Subsidiary under any Environmental Law, including, without limitation, liability
under CERCLA or similar state or foreign laws; (v) no Lien has been asserted or
recorded, or to the knowledge of Borrower and each Subsidiary threatened, under
any Environmental Law with respect to any asset, facility, inventory or property
currently owned, leased or operated by Borrower or any Subsidiary, and (vi)
there are no underground storage tanks or related piping at any property owned,
operated or leased by Borrower or any Subsidiary, and any former underground
tanks or related piping on any such property which has been removed or closed
has been removed or closed in accordance with any applicable Environmental Law.
8.13. Use of Proceeds. Neither Borrower nor any Subsidiary is engaged
---------------
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying Margin Stock and no part of the proceeds of any extension of credit
hereunder will be used to purchase or carry any Margin Stock. On and after the
date hereof, Borrower will use drawings under the Revolving Credit Commitments
for (i) ongoing working capital and general corporate requirements of Borrower
and its Subsidiaries, including the issuance of Letters of Credit; and (iii) the
financing of permitted Acquisitions.
8.14. Subsidiaries. Borrower has no Subsidiaries or interest in
------------
partnerships, joint ventures or business trusts other than the entities set
forth in Schedule 8.14. Borrower owns the percentage of the issued and
-------------
outstanding capital stock or other evidences of the ownership of each
subsidiary, partnership or joint venture listed on Schedule 8.14 as set forth on
-------------
such Schedule. No such Subsidiary, partnership or joint venture has issued any
securities convertible into shares of its capital stock (or other evidence of
ownership) or any Equity Rights to acquire such shares or securities convertible
into such shares (or other evidence of ownership), and the outstanding stock and
securities (or other evidence of ownership) of such Subsidiaries, partnerships
or joint ventures are owned by Borrower and the Subsidiaries free and clear of
all Liens and Equity Rights of others of any kind whatsoever, except (i) as set
forth on Schedule 8.14, and (ii) for Liens pursuant to the Security Documents.
-------------
8.15. Properties. Each of the Obligors has good and marketable title to
----------
and beneficial ownership of all properties and assets owned by it, including all
property reflected in the most recent financial statements delivered pursuant to
this Agreement (except as sold or otherwise disposed of since the date of such
financial statements in the ordinary course of business and in accordance with
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this Agreement). Title to each such property or asset that is not Collateral is
held by the Obligors and each of their respective Subsidiaries free and clear of
all Liens except for Permitted Liens. Title to each such property or asset that
constitutes Collateral is held by the Obligors free and clear of all Liens other
than Permitted Liens and Prior Liens.
8.16. Security Interest. The Security Documents, once executed,
-----------------
delivered, filed and/or recorded will, until the Collateral Release Date,
create, in favor of the Administrative Agent for the benefit of the Lenders, as
security for the obligations purported to be secured thereby, a valid and
enforceable perfected first priority security interest in and Lien upon all of
the Collateral, superior to and prior to the rights of all third persons and
subject to no Liens except the Prior Liens applicable to such Collateral.
8.17. Compliance with Laws. Each Obligor is in compliance in all material
--------------------
respects with all applicable statutes, laws, ordinances, rules, orders and
regulations of any Governmental Authority in all jurisdictions in which it is
presently doing business, and each Obligor will comply and cause each of its
Subsidiaries to comply in all material respects with all such laws and
regulations which may be imposed in the future in jurisdictions in which it or
such Subsidiary may then be doing business, in each case other than those the
non-compliance with which would not (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect. Additionally, there
does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon the transactions contemplated to occur on the
date hereof, or the performance by Borrower and the Subsidiaries of their
obligations under the Basic Documents and all applicable laws.
8.18. True and Complete Disclosure. The information, reports, financial
----------------------------
statements, exhibits and schedules furnished in writing by any of the Obligors
to any Creditor in connection with the negotiation, preparation or delivery of
this Agreement and the other Basic Documents or included herein or therein or
delivered pursuant hereto or thereto, when taken as a whole, do not, as of the
date such information was furnished, contain any untrue statement of material
fact or omit to state a material fact necessary in order to make the statements
herein or therein, in light of the circumstances under which they were made, not
materially misleading.
8.19. Solvency. As of the date hereof and each other date of an extension
--------
of credit hereunder: (i) the fair salable value of the Properties of the
Obligors, on a consolidated basis, exceeds and will, immediately following the
making of each Revolving Credit Loan or other extension of credit hereunder,
exceed the amount of all debt and liabilities (including all contingent,
subordinated, unmatured and unliquidated liabilities) of such Obligor; (ii) no
Obligor has, or will have, immediately following the making of each Revolving
Credit Loan or other extension of credit hereunder, unreasonably small capital
to carry out its business as conducted or as proposed to be conducted; and (iii)
the Obligors do not intend to, or believe that they will, incur debts beyond
their ability to pay such debts as they mature.
8.20. Employee and Labor Matters. Except as disclosed on Schedule 8.20,
-------------------------- -------------
there is (i) no unfair labor practice complaint pending against Borrower or any
Subsidiary or, to the knowledge of the Obligors, threatened against any of them,
before the National Labor Relations Board, and no
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<PAGE>
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against Borrower or any Subsidiary or, to the
knowledge of the Obligors, threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against Borrower or any Subsidiary or, to
the knowledge of the Obligors, threatened against Borrower or any Subsidiary and
(iii) to the knowledge of the Obligors, no union representation question
existing with respect to the employees of Borrower or any Subsidiary and, to the
knowledge of the Obligors, no union organizing activities are taking place,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as would not reasonably be
expected to have a Material Adverse Effect.
8.21. Intellectual Property. Borrower and each Subsidiary owns, or is
---------------------
licensed to use, all patents, trademarks, tradenames, servicemarks, copyrights,
technology, trade secrets, know-how and processes necessary for the conduct of
its business as currently conducted (the "Intellectual Property"), except for
---------------------
those the failure to own or license which could not, individually or in the
aggregate, have a Material Adverse Effect. No claim has been asserted and is
pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does Borrower know of any valid basis for any such claim. To the
knowledge of the Obligors, the use of such Intellectual Property by Borrower and
the Subsidiaries does not infringe the rights of any Person, except for such
claims and infringements that, in the aggregate, do not have a Material Adverse
Effect.
8.22. Representations and Warranties in Documents. All representations
-------------------------------------------
and warranties of the Obligors set forth in the Existing Credit Agreement were
true and correct in all material respects as of each time such representations
and warranties were made or deemed made.
8.23. Year 2000. Any reprogramming required to permit the proper
---------
functioning, in and following the year 2000, of (i) the Borrower's computer
systems and (ii) equipment containing embedded microchips (including systems and
equipment supplied by others or with which Borrower's systems interface) and the
testing of all such systems and equipment, as so reprogrammed, has been
completed in all material respects. The cost to the Borrower of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Borrower (including, without limitation, reprogramming errors and
the failure of others= systems or equipment) will not result in a Default or a
Material Adverse Effect. The computer and management information systems of the
Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrower to conduct its business without Material Adverse Effect.
Section 9. Covenants.
---------
Each Obligor covenants and agrees with the Creditors that (and each Obligor
covenants and agrees that it shall not permit any Subsidiary to take any action
prohibited by any Subsidiary hereunder and shall cause each Subsidiary to take
all action required by Subsidiaries hereunder), so long as any Revolving Credit
Commitment, Revolving Credit Loan or Letter of Credit Liability is outstanding
and until payment in full of all amounts payable by Borrower hereunder:
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9.01 Financial Statements, Etc. Borrower (for itself and on behalf of the
--------------------------
Subsidiary Guarantors) shall deliver to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each of the first three quarterly fiscal periods of each fiscal
year, consolidated statements of income and cash flow of Borrower and its
Consolidated Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, the
related consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated statement of income for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial officer of Borrower, which certificate
shall state that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of Borrower and
its Consolidated Subsidiaries in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal year-end
audit adjustments);
(b) as soon as available and in any event within 120 days after the
end of each fiscal year, consolidated statements of income, stockholders'
equity and cash flow of Borrower and its Consolidated Subsidiaries for such
year and the related consolidated balance sheet of Borrower and its
Consolidated Subsidiaries as at the end of such year, setting forth in each
case in comparative form the corresponding consolidated figures as of the
end of and for the preceding fiscal year, and accompanied by an opinion,
without material qualification, thereon of independent certified public
accountants of recognized national standing, which opinion shall state that
said consolidated financial statements fairly present the consolidated
financial condition and results of operations of Borrower and its
Consolidated Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP, and a certificate of such accountants stating that,
in making the examination necessary for their opinion, they obtained no
knowledge of any Default;
(c) promptly upon delivery thereof to the shareholders of Borrower or
any Subsidiary generally, copies of all financial statements and reports
and proxy statements so delivered which Borrower sends to all holders of
securities of the same class and within five days after the same are filed,
copies of all financial statements and reports which Borrower may make or
file with the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice
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from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect
of, or appoint a trustee to administer any Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under Section 412
of the Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to any payment or contribution to any Plan or Multiemployer
Plan or in respect to any Benefit Arrangement or makes any amendment to any
Plan or Benefit Arrangement which has resulted or could reasonably be
expected to result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Code, an Officers' Certificate setting
forth details as to such occurrence and action, if any, which Borrower or
the applicable member of the ERISA Group is required or proposes to take;
(e) together with the financial statements delivered pursuant to
clause (a) or (b) of this Section 9.01 for any period ending on or after
December 31, 1999, an Interest Rate Certificate;
(f) promptly after Borrower or any Subsidiary knows or has reason to
believe that any Default has occurred, a notice of such Default describing
the same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that Borrower has taken
and proposes to take with respect thereto;
(g) written notice of any Environmental Claim materially affecting
Borrower and the Subsidiaries taken as a whole, any Mortgaged Real Property
or the operations of Borrower and the Subsidiaries taken as a whole, and
any notice from any Person of (i) the occurrence of any release, spill or
discharge of any Hazardous Material that is reportable under any
Environmental Law, (ii) the commencement of any clean-up pursuant to or in
accordance with any Environmental Law of any Hazardous Material at, on,
under or within the Mortgaged Real Property or any part thereof or (iii)
any other condition, circumstance, occurrence or event, any of which could
reasonably be expected to result in a material liability of Borrower or any
Subsidiary under any Environmental Law;
(h) promptly upon receipt thereof, copies of all reports submitted to
Borrower by independent certified public accountants in connection with
each annual, interim or special audit of the books of Borrower made by such
accountants, including, without limitation, any management letter
commenting on Borrower's internal controls submitted by such accountants to
management in connection with their annual audit;
(i) an annual budget in reasonable detail within 60 days after the
end of each fiscal year of the Borrower;
(j) until the Collateral Release Date, written notice of (i) the
incurrence of any material Lien (other than Liens permitted pursuant to
Section 9.07) on, or claim asserted
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against any of the collateral security in the Security Documents or (ii)
the occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the collateral
under any Security Document;
(k) written notice of a material adverse change in the business,
operations, property or financial or other condition of Borrower and the
Subsidiaries taken as a whole; and
(l) as promptly as is reasonably practicable, such financial and
other information as any Creditor may from time to time reasonably request.
Borrower will furnish to the Administrative Agent, at the time it furnishes each
set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a senior financial officer of Borrower (i) to the effect that no
Default has occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the action
that Borrower has taken and proposes to take with respect thereto) and (ii)
setting forth in reasonable detail the computations necessary to determine
whether Borrower is in compliance with Sections 9.07, 9.08, 9.09, 9.10 and 9.11
as of the end of the respective quarterly fiscal period or fiscal year. The
Administrative Agent shall forward such certificate and information to the
Lenders.
9.02 Litigation, Etc. Borrower shall promptly give to the Administrative
----------------
Agent (which shall promptly provide a copy thereof to each Lender) notice of all
legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting Borrower or any
Subsidiary, except proceedings which could not reasonably be expected to have
(individually or in the aggregate) a Material Adverse Effect.
9.03 Existence; Compliance with Law; Payment of Taxes; Inspection Rights;
--------------------------------------------------------------------
Performance of Obligations; Etc. Borrower and each Subsidiary shall, (i)
- --------------------------------
preserve and maintain its legal existence and all of its material rights,
privileges and franchises (provided, however, that nothing in this Section 9.03
-------- -------
shall prohibit any transaction expressly permitted under Section 9.06); (ii)
comply with the requirements of all applicable laws (including ERISA and the
rules and regulations thereunder), rules, regulations and orders of Governmental
Authorities if failure to comply with such requirements would (individually or
in the aggregate) have a Material Adverse Effect; (iii) timely file true,
accurate and complete tax returns required by all Governmental Authorities and
pay and discharge all taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its Property prior to the
date on which penalties attach thereto (except for any such tax, assessment,
charge or levy the payment of which is being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained) if
such failure to pay and discharge would (individually or in the aggregate) have
a Material Adverse Effect; (iv) maintain all of its Properties used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that the failure to do so with respect to any
such Property would not individually or in the aggregate be reasonably likely to
have a Material Adverse Effect; (v) permit representatives of any Creditor, upon
reasonable prior notice during normal business
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hours, to examine, copy and make extracts from its books and records, to inspect
its Properties, and to discuss its business and affairs with its officers, all
to the extent reasonably requested by such Creditor; (vi) perform in all
material respects all of its obligations under the terms of each mortgage
indenture, security agreement, other debt instrument and material contract by
which it is bound or to which it is a party, except where such failure to so
perform, singly or in the aggregate with all other such failures, would not have
a Material Adverse Effect; and (vii) keep proper books of record and accounts,
in which full and correct entries shall be made of all financial transactions
and the Property and business of each Obligor and its subsidiaries in accordance
with generally accepted accounting principles in effect from time to time or as
otherwise required by applicable rules and regulations of any Governmental
Authority having jurisdiction over such Obligor or its Subsidiaries, as
relevant. Borrower will confer with the Lenders in enforcing or waiving material
rights of Borrower or any Subsidiary under any Document.
9.04 Insurance. Borrower and each Subsidiary shall keep insured by
---------
financially sound and reputable insurers all Property of a character usually
insured by corporations engaged in the same or similar business similarly
situated against loss or damage of the kinds and in the amounts customarily
insured against by such corporations and carry such other insurance as is
usually carried by such corporations, including, in any event, business
interruption insurance. Borrower shall deliver to the Administrative Agent a
certificate of insurance for each liability policy of insurance which shall
contain an endorsement showing the Administrative Agent as an additional
insured. Such endorsement shall provide for at least 30 days' prior notice to
the Administrative Agent of any proposed termination or cancellation of such
policy, whether on account of default or otherwise.
9.05 Issuance or Disposals of Capital Stock of Subsidiaries. No
------------------------------------------------------
Subsidiary shall issue, sell, assign, transfer or otherwise dispose of any
shares (or other ownership interests) of any class of its capital stock or
equity ownership interests or of any Equity Rights to purchase its capital stock
or equity ownership interests or of other securities exchangeable for or
convertible into its capital stock or equity ownership interests, except (a) to
Borrower or a Wholly Owned Subsidiary, (b) directors' qualifying shares as
required by law, and (c) the Trust Preferred Securities, if any. Neither
Borrower nor any Subsidiary shall effect the Disposition of any capital stock
(other than the Trust Preferred Securities to the extent otherwise permitted) of
any Subsidiary unless all capital stock owned by Borrower and the Subsidiaries
is sold pursuant thereto and such sale is otherwise permitted herein.
9.06 Fundamental Changes; Acquisitions; Dispositions. No Obligor or
-----------------------------------------------
Subsidiary shall, directly or indirectly, (1) enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), (2) acquire any business or
Property from, or capital stock of, or be a party to any acquisition of, any
Person, or effect any Acquisition, or (3) effect any Disposition or convey,
sell, lease, assign, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or a substantial part of its business or Property,
whether now owned or hereafter acquired, including receivables and leasehold
interests. Notwithstanding the foregoing provisions of this Section 9.06, each
of the following shall be permitted:
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(a) purchases of inventory and other Property to be sold or used in
the ordinary course of business;
(b) Acquisitions permitted by Section 9.09(k), (u) or (v) and other
Investments permitted by Section 9.09;
(c) any subsidiary may be merged or consolidated or dissolved or
liquidated with or into: (i) Borrower if Borrower shall be the continuing
or surviving corporation or (ii) any Wholly Owned Subsidiary which is an
Obligor; provided, however, that a Wholly Owned Subsidiary which is an
-------- -------
Obligor shall be the continuing or surviving corporation;
(d) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its Property (upon voluntary liquidation or otherwise) to
Borrower or to any Wholly Owned Subsidiary which is an Obligor;
(e) any Wholly Owned Subsidiary that is a Foreign Subsidiary may
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to another Wholly Owned
Subsidiary that is a Foreign Subsidiary;
(f) Dispositions of used, worn out, obsolete or surplus equipment or
other Property by Borrower or any Subsidiary, all in the ordinary course of
business; provided, however, that the proceeds thereof are reinvested in
-------- -------
the business of Borrower or any Subsidiary within one year of such
Disposition;
(g) any Foreign Subsidiary may be merged or consolidated with or into
any one or more Wholly Owned Subsidiaries that are Foreign Subsidiaries
(provided that a Wholly Owned Subsidiary that is a Foreign Subsidiary shall
be the continuing or surviving corporation);
(h) Borrower or any Subsidiary may sell or discount, in each case
without recourse, accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof;
(i) the sale by any Foreign Subsidiary of its accounts receivable;
provided, however, that the terms of each such sale are satisfactory in
-------- -------
form and substance to the Administrative Agent;
(j) Dispositions for fair market value not to exceed $15,000,000 in
the aggregate after the date of this Agreement; provided, however, that the
-------- -------
Net Available Proceeds therefrom are reinvested as specified in Section
2.10(a)(iii) or applied to the prepayment of the Revolving Credit Loans as
specified in Section 2.10(a);
(k) the sale of all or substantially all of the capital stock and/or
equity interests in or assets of IMCO Recycling of California, Inc., a
Subsidiary, owned by Borrower or any
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Subsidiary; provided, however, that the Net Available Proceeds therefrom
-------- -------
are reinvested as specified in Section 2.10(a)(iii) or applied to the
prepayment of the Revolving Credit Loans as specified in Section 2.10(a);
and
(l) Dispositions of assets pursuant to the Commonwealth Option or the
Commonwealth Right of First Refusal; provided, however, that the Net
-------- -------
Available Proceeds therefrom are applied to the prepayment of the Revolving
Credit Loans as specified in Section 2.10(a);
(m) the transfer by Borrower to IMCO International, Inc., and
subsequent transfer by IMCO International, Inc. to IMCO Recycling Holding
B.V., of Borrower's share interests in IMCO Recycling (UK) Ltd. and its
joint venture interests in VAW-IMCO Guss und Recycling GmbH; and
(n) the transfer by U.S. Zinc Corporation to IMCO International,
Inc., and subsequent transfer by IMCO International, Inc. to IMCO Recycling
Holding B.V., of U.S. Zinc's share interests in MetalChem Handel GmbH and
in MetalChem Canada Incorporated.
To the extent the Majority Lenders waive the provisions of this Section 9.06
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 9.06
(and such Collateral is released (or permitted to be released) from the Liens
created by the respective Security Document), such Collateral in each case shall
be sold or otherwise disposed of free and clear of the Liens created by the
Security Documents and the Administrative Agent shall take such actions as are
appropriate in connection therewith.
9.07 Liens and Related Matters. No Obligor or Subsidiary shall, directly
-------------------------
or indirectly, create, incur, assume or suffer to exist any Lien upon or with
respect to any of their respective Property (including Collateral), whether now
owned or hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets or assign any right to receive income, or file or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute, except the following, which are herein
collectively referred to as "Permitted Liens":
---------------
(a) Liens created pursuant to or permitted by the Security Documents;
(b) Liens in existence on the date hereof and identified in Schedule
--------
9.07;
----
(c) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of Borrower or the affected subsidiary,
as the case may be, in accordance with GAAP;
(d) Liens in respect of Property of Borrower or any Subsidiary
imposed by law which were incurred in the ordinary course of business, such
as carriers', warehousemen's,
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landlords' and mechanics' Liens and other similar Liens arising in the
ordinary course of business, in each case for sums the payment of which is
not required by Section 9.03;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation or the deposits securing
the liability to insurance carriers;
(f) pledges or deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions or minor defects or
irregularities in title incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Real Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which do
not in any case materially detract from the value of the Real Property
subject thereto or interfere with the ordinary conduct of the business of
Borrower or any subsidiary;
(h) Liens upon tangible personal Property acquired after the Original
Closing Date by Borrower or any Subsidiary, each of which Liens either (A)
existed on such Property before the time of its acquisition and was not
created in anticipation thereof, or (B) was created solely for the purpose
of securing Indebtedness representing, or incurred to finance, refinance or
refund, the cost of such Property or improvements thereon; provided,
--------
however, that (x) no such Lien shall extend to or cover any Property of
-------
Borrower or such Subsidiary other than the Property so acquired and
improvements thereon and (y) the principal amount of Indebtedness secured
by any such Lien shall at no time exceed 100% of the fair market value of
such Property at the time it was acquired;
(i) Liens existing on any Property of any Person at the time such
Person becomes a Subsidiary or is merged or consolidated with or into a
subsidiary and, in each case, not created in contemplation of or in
connection with such event; provided, however, that such Liens do not
-------- -------
extend to any other Property of Borrower or the Subsidiaries;
(j) Liens (excluding Liens on Collateral) not otherwise permitted
hereunder securing obligations not at any time exceeding in the aggregate
$15,000,000.
(k) Liens securing obligations under Swap Contracts with any Lender
or any Affiliate of any Lender;
(l) Liens consisting of judgment or judicial attachment Liens
(including prejudgment attachment) the enforcement of which is effectively
stayed or payment of which is covered in full (subject to a customary
deductible) by insurance or which do not otherwise result in an Event of
Default under Section 10(h);
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(m) Liens securing obligations in respect of Capital Leases solely on
Property subject to such Capital Leases;
(n) the Commonwealth Option and the Commonwealth Right of First
Refusal; and
(o) any extension, renewal or replacement of the foregoing; provided,
--------
however, that the Liens permitted hereunder shall not cover any additional
-------
Indebtedness (other than Indebtedness permitted to be secured hereunder) or
Property (other than like Property substituted for Property covered by such
Lien).
Except with respect to (i) specific Property encumbered pursuant to a Lien
permitted to be incurred pursuant to this Section 9.07 or (ii) specific Property
to be sold pursuant to an executed agreement with respect to a Disposition
consummated in accordance with this Agreement, no obligor will, nor will any of
them permit any of their respective Subsidiaries to, directly or indirectly,
enter into any agreement (other than the Basic Documents) prohibiting or
restricting in any manner (directly or indirectly and including by way of
covenant, representation or warranty or event of default) the creation or
assumption of any Lien upon its Property, whether now owned or hereafter
acquired.
9.08 Indebtedness No Obligor or Subsidiary shall, directly or indirectly,
------------
create, incur or suffer to exist or be or become liable for any indebtedness,
except (each of which shall be given independent effect):
(a) Indebtedness under the Basic Documents;
(b) Indebtedness outstanding on the date hereof and specified on
Schedule 9.08 to remain outstanding after the date hereof, and any
-------------
refinancings, refundings, renewals or extensions thereof on financial and
other terms, in the reasonable judgment of Borrower, no more onerous to
Borrower or any Subsidiary in the aggregate than the financial and other
terms of such Indebtedness; provided, however, that the amount of such
-------- -------
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension and such Indebtedness shall not have a stated maturity
or an average life shorter than that of the Indebtedness being refinanced;
(c) Indebtedness of Borrower or any Wholly Owned Subsidiary owing to
Borrower or any Wholly Owned Subsidiary which is an obligor; provided,
--------
however, that such Indebtedness shall not be held by any Person other than
-------
Borrower or a Wholly Owned Subsidiary which is an Obligor and shall not be
subordinate to any other Indebtedness or other obligation of the Obligor
other than the Revolving Credit Loans;
(d) Indebtedness of Borrower and the Subsidiaries secured by Liens
permitted under Section 9.07(h) or (m) not exceeding in the aggregate
$15,000,000 at any one time outstanding;
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(e) Indebtedness arising from honoring a check, draft or similar
instrument against insufficient funds; provided, however, that such
-------- -------
Indebtedness is extinguished within two Business Days of its incurrence;
(f) obligations under operating leases permitted by Section 9.22 and
Contingent Obligations permitted by Section 9.24;
(g) unsecured Indebtedness incurred by any Foreign Subsidiary not to
exceed $15,000,000 in the aggregate for all Foreign Subsidiaries at any
time outstanding;
(h) unsecured Indebtedness of Borrower or any Subsidiary which is an
obligor in an aggregate principal amount not to exceed, together with
Contingent Obligations (without duplication) under Section 9.24(d),
$15,000,000 for Borrower and the subsidiaries collectively at any time
outstanding;
(i) unsecured Indebtedness in an amount not to exceed $10,000,000
incurred pursuant to revenue bonds issued by the City of Morgantown,
Kentucky after the date hereof;
(j) Indebtedness represented by amounts declared, payable as, or set
apart for, Dividends permitted by Section 9.10 and Swap Contracts entered
into in the ordinary course of business and designed to protect the
obligors against fluctuations in interest rates, currency exchange rates,
commodity prices or similar risks; and
(k) Subordinated Debt issued in connection with the Trust Preferred
Securities, which Subordinated Debt shall be unsecured and shall not exceed
$125,000,000.
All intercompany debt shall be unsecured and subordinate in right of
payment to the Obligations.
9.09 Investments. No Obligor or Subsidiary shall, directly or indirectly,
-----------
make or permit to remain outstanding any Investments, except:
(a) operating deposit accounts and certificates of deposit with banks
in the ordinary course of business;
(b) Permitted Investments;
(c) Investments by Borrower or any Subsidiary in any wholly owned
Subsidiary that is an Obligor and Investments by any Subsidiary in
Borrower;
(d) Investments outstanding on the date hereof and identified with
particularity in Schedule 9.09 and any renewals, extensions, modifications
-------------
and replacements thereof that do not increase the amount thereof;
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(e) Investments that constitute Indebtedness permitted under Section
9.08 or Contingent Obligations permitted under Section 9.24;
(f) Investments by Borrower in Swap Contracts entered into as bona
----
fide hedges and not for speculative purposes;
----
(g) advances, loans or extensions of credit by Borrower or any
subsidiary to employees of Borrower or any Subsidiary; provided, however,
-------- -------
that the aggregate amount of all such loans, advances and extensions of
credit shall not at any time exceed in the aggregate $5,000,000 (without
giving effect to any write-down or write-off thereof);
(h) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(i) pledges or deposits required in the ordinary course of business
in connection with workmen's compensation, unemployment insurance and other
social security or similar legislation;
(j) pledges or deposits in connection with (i) the nondelinquent
performance of bids, trade contracts (other than for borrowed money),
leases or statutory obligations, (ii) contingent obligations on surety or
appeal bonds, and (iii) other non-delinquent obligations of a like nature,
in each case incurred in the ordinary course of business;
(k) Investments made in order to consummate Acquisitions; provided,
--------
however, that (v) no Default or Event of Default exists or will result
-------
therefrom, (w) on a pro forma basis, after giving effect to such
--- -----
Acquisition(s), Borrower would have been in compliance with Section 9.11 on
the last day of the most recently completed fiscal quarter (assuming, for
purposes of Section 9.11, that such Acquisition had occurred on the first
day of the Measurement Period ending on such last day) as evidenced in an
Officers Certificate delivered to the Administrative Agent and each Lender
at least 10 days prior to the consummation thereof, (x) the aggregate
amount of the consideration (which for each Acquisition shall be measured
at the date of consummation thereof and which shall include debt incurred
or assumed, working capital deficits and deferred payments) paid for all
Acquisitions consummated in any fiscal year of Borrower shall not exceed
$75,000,000, and (y) such Acquisition shall be effected through Borrower or
a wholly Owned Subsidiary which is an obligor (it being understood that
proceeds of Revolving Credit Loans shall not be used to finance hostile
acquisitions);
(l) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
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(m) Borrower and the Subsidiaries may hold additional Investments in
any non-Wholly Owned Subsidiary or Foreign Subsidiary to the extent that
such Investments reflect an increase in Borrower's or any subsidiary's
interest in the stockholders' equity of such Subsidiary resulting from
retained earnings of such Subsidiary;
(n) any Foreign Subsidiary may make Investments in or to any other
Foreign Subsidiary;
(o) Capital Expenditures, provided that no Default or Event of
Default will exist or result therefrom;
(p) investments by Borrower or any Subsidiary in any non-Wholly Owned
Subsidiary or any Subsidiary which is not an Obligor (including Foreign
Subsidiaries), in each case to the extent made in the ordinary course to
fund or support the ordinary course operations of such Subsidiary so long
as no Event of Default shall have occurred and be continuing; provided,
--------
however, that (x) the amount of such Investments made pursuant to this
-------
clause (p) shall not exceed $20,000,000 in the aggregate outstanding at any
time (without giving effect to any write-down or write-off thereof) and (y)
until the Collateral Release Date, upon the request of the Majority Lenders
all such Investments evidenced by intercompany notes shall be pledged to
the Administrative Agent pursuant to the Security Agreement;
(q) Investments for the creation of any Wholly Owned Foreign
Subsidiary which is a foreign sales corporation consisting of de minimis
-- -------
capitalization;
(r) [Reserved];
(s) Investments consisting of non-cash consideration received in the
form of securities, notes or similar obligations in connection with a
Disposition permitted by Section 9.06 (j); provided, however, that (i) the
-------- -------
aggregate amount of such non-cash consideration received in connection with
any such Disposition shall not exceed 10% of the total consideration
received in connection with such Disposition and (ii) until the Collateral
Release Date, such non-cash consideration is pledged pursuant to the
appropriate Security Document;
(t) Investments by Foreign Subsidiaries in high quality investments
of the type similar to Permitted Investments made outside the United
States;
(u) Investments made to consummate any Acquisition with the Net
Available Proceeds of any Disposition effected in accordance with Section
9.06(j) to the extent such Net Available Proceeds have not been used to
effect Capital Expenditures pursuant to Section 9.11(d)(2) or otherwise
expended by Borrower or any Subsidiary; provided, however, that (x) no
-------- -------
Default or Event of Default exists or would result therefrom, (y) on a pro
---
forma basis, immediately after giving effect to any such Acquisition,
-----
Borrower would
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be in compliance with the financial covenants set forth in
Section 9.11 on the last day of the most recently ended fiscal quarter
(assuming, for purposes of Section 9.11, that such Acquisition has occurred
on the first day of the Measurement Period ending on such last day) as
evidenced in an Officers' Certificate delivered to the Administrative Agent
and the Lenders at least 10 days prior to the consummation of such
Acquisition, and (z) such Acquisition shall be effected through Borrower or
a Wholly Owned Subsidiary which is an Obligor;
(v) Investments made to consummate any Acquisition in an amount in
any fiscal year not to exceed the amount that would have been permitted at
the time of consummation of such Acquisition to be made as a Capital
Expenditure pursuant to Section 9.11(d)(1) (after taking into account the
then permitted amount thereunder and the aggregate amount of Capital
Expenditures made and the aggregate amount expended for other Acquisitions
effected pursuant to this Section 9.09(v), in each case on or prior to the
date of consummation of such Acquisition); provided, however, that (w) no
-------- -------
Default or Event of Default exists or would result therefrom, (x) on a pro
---
forma basis, immediately after giving effect to any such Acquisition,
-----
Borrower would be in compliance with all financial covenants set forth in
Section 9.11 on the last day of the most recently ended fiscal quarter
(assuming, for purposes of Section 9.11, that such Acquisition had occurred
on the first day of the Measurement Period ending on such last day) as
evidenced in an officers, Certificate delivered to the Lenders at least 10
days prior to the consummation of such Acquisition, and (y) such
Acquisition shall be effected through Borrower or a wholly Owned Subsidiary
which is an Obligor;
(w) additional investments in VAW-IMCO in an aggregate principal
amount not to exceed $10,000,000 outstanding at any time (without giving
effect to any write-down or write-off thereof);
(x) Borrower or any Subsidiary may hold the capital stock,
partnership interests or other ownership or equity interest therein of any
Subsidiary existing on the Original Closing Date or created or acquired
thereafter in accordance with the provisions hereof and any additional
capital stock, partnership interests or ownership or equity interests
issued in exchange therefor or as a dividend thereon;
(y) [Reserved];
(z) [Reserved];
(aa) [Reserved];
(bb) investments in a joint venture between Borrower or a Subsidiary
and Alumatech, in an aggregate amount not exceeding $10,000,000 outstanding
at any time (without giving effect to any write-down or write-off thereof);
-80-
<PAGE>
(cc) [Reserved];
(dd) in addition to the foregoing, other Investments not exceeding
$20,000,000 in the aggregate outstanding at any time (without giving effect
to any write-downs or write-offs thereof), net of any returns of capital,
cash dividends and distributions received in respect thereof and net cash
proceeds of sales thereof.
(ee) Investments in connection with the transfer by Borrower to IMCO
International, Inc., and subsequent transfer by IMCO International, Inc. to
IMCO Recycling Holding B.V., of Borrower's share interests in IMCO
Recycling (UK) Ltd. and its joint venture interests in VAW-IMCO Guss und
Recycling GmbH; and
(ff) Investments in connection with the transfer by U.S. Zinc
Corporation to IMCO International, Inc., and subsequent transfer by IMCO
International, Inc. to IMCO Recycling Holding B.V., of U.S. Zinc's share
interests in MetalChem Handel GmbH and in MetalChem Canada Incorporated.
9.10. Dividend Payments. No Obligor or Subsidiary shall, directly or
-----------------
indirectly, declare or make any Dividend Payment at any time, except that:
(a) any Subsidiary may declare and make Dividend Payments to the
extent made pro rata to all holders of the capital stock thereof; and
--- ----
(b) the following Dividend Payments shall be permitted so long as no
Default or Event of Default shall have occurred and be continuing at the
time of such Dividend Payment nor would result therefrom: (i) the purchase
by Borrower of up to 398,900 shares of its common stock, provided that the
sum of the aggregate amount expended by Borrower for such purchases, plus
the aggregate amount expended by Borrower for purchases of its common stock
during the period from and including September 8, 1998 to and including the
date of determination shall not exceed $15,000,000, (ii) prior to the
issuance of the Subordinated Debt and the Trust Preferred Securities, if
any, Borrower may declare and make cash Dividend Payments on its capital
stock (other than purchases of its common stock permitted by clause (i)
above) not to exceed in the aggregate $6,000,000 in each of fiscal 1999 and
fiscal 2000, and $8,000,000 in any fiscal year thereafter, (iii) after the
issuance of the Subordinated Debt and the Trust Preferred Securities, if
any, Borrower may declare and make cash Dividend Payments on its capital
stock not to exceed in the aggregate $8,000,000 in each of fiscal 1999 and
fiscal 2000, and $11,000,000 in any fiscal year thereafter, and (iv) the
issuer of the Trust Preferred Securities may make scheduled Dividend
Payments on the Trust Preferred Securities.
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<PAGE>
9.11. Financial Covenants.
-------------------
(a) Maximum Debt to Capitalization Ratio. Prior to the issuance of
------------------------------------
the Subordinated Debt and the Trust Preferred Securities, if any, Borrower
shall not permit the Debt to Capitalization Ratio for any Measurement
Period ending during any period set forth in the table below to be more
than the ratio set forth opposite such period in the table below:
<TABLE>
<CAPTION>
====================================================================================================
Period Ratio
====================================================================================================
<S> <C>
Date of this Agreement through
12/31/2000 0.60:1.0
----------------------------------------------------------------------------------------------------
1/1/2001 through 12/31/2001 0.55:1.0
----------------------------------------------------------------------------------------------------
1/1/2002 and thereafter 0.50:1.0
====================================================================================================
</TABLE>
After the issuance of the Subordinated Debt and the Trust Preferred
Securities, if any, Borrower shall not permit the Debt to Capitalization
Ratio for any Measurement Period to be more than 0.45 to 1.0.
(b) Minimum Interest Coverage Ratio. Borrower shall not permit the
-------------------------------
Interest Coverage Ratio for any Measurement Period ending during any period
set forth in the table below to be less than the ratio set forth opposite
such period in the table below:
<TABLE>
<CAPTION>
====================================================================================================
Period Ratio
====================================================================================================
<S> <C>
Date of this Agreement through
12/31/2000 2.25:1.0
----------------------------------------------------------------------------------------------------
1/1/2001 through 12/31/2001 2.50:1.0
----------------------------------------------------------------------------------------------------
1/1/2002 and thereafter 2.75:1.0
====================================================================================================
</TABLE>
(c) Minimum Consolidated Net Worth. Borrower shall not permit
--------------------
Consolidated Net Worth at any time to be less than $154,600,000 plus the
----
sum of (x) 50% of consolidated net income of Borrower determined in
accordance with GAAP for each such fiscal quarter (if positive) occurring
after June 30, 1999 and (y) 100% of the net proceeds of all Equity
Issuances (including proceeds from the issuance of the Trust Preferred
Securities) occurring after the date hereof.
(d) Measurement Dates. The covenants in clauses (a), (b) and (c) of
-----------------
this Section 9.11 shall be measured as of the end of each fiscal quarter,
beginning with September 30, 1999.
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<PAGE>
9.12. Pledge of Additional Collateral. Promptly, and in any event within
-------------------------------
30 days, after the acquisition of any Property of the type that would have
constituted Collateral at the Original Closing Date (including the capital stock
of any Subsidiary hereafter created or acquired) other than Real Property (the
"Additional Collateral"), each Obligor and each Wholly Owned Subsidiary (other
---------------------
than any Foreign Subsidiary) shall take all action necessary or desirable,
including the execution and delivery of all such agreements, assignments,
documents and instruments (including amendments to the Basic Documents) and the
filing of appropriate financing statements under the provisions of the UCC or
applicable governmental requirements in each of the offices where such filing is
necessary or appropriate, to grant the Administrative Agent for the benefit of
the Lenders a duly perfected first priority Lien on such Property pursuant to
and to the full extent required by the Security Documents and this Agreement;
provided, however, that (i) not more than 65% of the capital stock of any "first
- -------- -------
tier" Foreign Subsidiary need be pledged and no capital stock of any Foreign
Subsidiary which is not a "first-tier" Foreign Subsidiary need be pledged, and
(ii) the foregoing provisions shall not apply from and after the Collateral
Release Date. The costs of all actions taken by the parties in connection with
the pledge of Additional Collateral or in connection with any Mortgage,
including reasonable costs of counsel for the Administrative Agent, shall be
paid by the obligors promptly following written demand.
9.13. Security Interests.
------------------
(a) Until the Collateral Release Date, each Obligor and each
Subsidiary shall, promptly, upon the reasonable request of any Lender, at
Borrower's expense, execute, acknowledge and deliver, or cause the
execution, acknowledgment and delivery of, and thereafter register, file or
record, or cause to be registered, filed or recorded, in an appropriate
governmental office, any document or instrument supplemental to or
confirmatory of the Security Documents or otherwise deemed by the
Administrative Agent necessary or desirable for the continued validity,
perfection and priority of the Liens on the collateral covered thereby.
(b) Until the Collateral Release Date, each Obligor and each
Subsidiary shall deliver or cause to be delivered to the Administrative
Agent from time to time such other documentation, consents, authorizations,
approvals and orders in form and substance reasonably satisfactory to the
Administrative Agent as the Administrative Agent shall reasonably deem
necessary to perfect or maintain the Liens on the Collateral.
9.14. Compliance with Environmental Laws. (a) Each Obligor and each
----------------------------------
Subsidiary shall comply with all Environmental Laws, and will keep or cause all
Real Property to be kept free of any Liens under Environmental Laws, unless
failure to do so would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; (b) in the event of the presence of
any Hazardous Material at, on or under any Real Property which would reasonably
be expected to result in liability under or a violation of any Environmental
Law, in each case which would, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, each Obligor and each
Subsidiary shall undertake, and/or cause any of their respective tenants or
occupants to undertake, at their sole expense, any action required pursuant to
Environmental Laws
-83-
<PAGE>
to mitigate and eliminate any such adverse effect; provided, however, that no
-------- -------
Obligor or Subsidiary shall be required to comply with any order or directive
which is being contested in good faith and by proper proceedings so long as it
has maintained adequate reserves with respect to such compliance to the extent
required in accordance with GAAP; and (c) each Obligor shall promptly notify the
Administrative Agent of the occurrence of any event specified in clause (b) of
this Section 9.14 and shall periodically thereafter keep the Administrative
Agent informed of any material actions taken in response to such event and the
results of such actions.
9.15. Lines of Business. No Obligor or Subsidiary shall directly or
-----------------
indirectly, engage to any substantial extent in any line or lines of business
activity other than non-ferrous metals recovery, recycling, fabricating and
processing.
9.16. Transactions with Affiliates. No Obligor or Subsidiary shall,
----------------------------
directly or indirectly: enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property, the rendering of any service, or a merger or consolidation), with any
Affiliate (an "Affiliate Transaction") unless such Affiliate Transaction is
---------------------
otherwise not prohibited under this Agreement, is in the ordinary course of the
Obligor's business and is on fair and reasonable terms that are not less
favorable to the Obligor than those that would be obtainable at the time in an
arm's-length transaction with a Person who is not such an Affiliate.
9.17. Limitation on Accounting Changes; Limitation on Investment Company
------------------------------------------------------------------
Status. No Obligor or Subsidiary shall make or permit, any change in (i)
- ------
accounting policies or reporting practices, except immaterial changes and except
as required by generally accepted accounting principles or (ii) its fiscal year
end (December 31 of each year). No Obligor shall be or become an investment
company subject to the registration requirements under the Investment Company
Act of 1940, as amended.
9.18. Modifications of Certain Documents, Etc. No Obligor or Subsidiary
---------------------------------------
shall, directly or indirectly, amend, modify or change in any manner which could
be materially adverse to the Lenders its certificate of incorporation or its by-
laws (or any other organizational document), or any agreement entered into with
respect to its capital stock, or enter into any new agreement with respect to
its capital stock in any manner which would be materially adverse to the
Lenders.
9.19. Subordinated Debt.
-----------------
(a) No Obligor or Subsidiary shall prepay, pay, redeem, purchase in
any manner, or make any payment in respect of, or transfer any property in
payment of or as security for the payment of, or establish any sinking
fund, reserve or analogous fund for the redemption, retirement, prepayment
or repayment of, any principal of, interest on, or any fees or other
amounts related to, the Subordinated Debt, provided that any Obligor or
Subsidiary may make any regularly scheduled payments of interest on the
Subordinated Debt unless a Default or Event of Default exists at the time
of such payment or would result from the making of such payment of
interest.
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<PAGE>
(b) No Obligor or Subsidiary shall, directly or indirectly, amend,
modify, supplement, waive compliance with, or assent to noncompliance with,
any term, provision or condition of any of the documents governing or
evidencing the Subordinated Debt, which (i) the Lenders deem material
(including, without limitation, relating to events of default, acceleration
rights, interest rates, maturity date, subordination and covenants) or (ii)
places any further restrictions on any Obligor or Subsidiary, or increases
the obligations of any Obligor or Subsidiary thereunder, or confers on the
holders thereof any additional rights.
9.20. Limitation on Certain Restrictions Affecting Subsidiaries. No
---------------------------------------------------------
Obligor or Subsidiary shall, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction on the
ability of any such Subsidiary to (a) pay dividends or make any other
distributions on such Subsidiary's capital stock or any other interest or
participation in its profits owned by Borrower or any Subsidiary, or pay any
Indebtedness or any other obligation owed to Borrower or any Subsidiary, (b)
make Investments in or to Borrower or any Subsidiary or (c) transfer any of its
Property to Borrower or any Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) the Basic
Documents, (iii) such restrictions with respect to the transfer of those assets
subject to a Lien permitted under Section 9.07, (iv) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of Borrower or any Subsidiary, (v) with respect to restrictions described in
clause (c) only, restrictions in any agreement relating to any Disposition which
is permitted under this Agreement and (vi) the Commonwealth Option and the
Commonwealth Right of First Refusal.
9.21. Additional Obligors. Upon Borrower or any Wholly Owned Subsidiary
-------------------
creating or acquiring a Wholly Owned Subsidiary (other than a Foreign
Subsidiary) after the Original Closing Date (each such Subsidiary referred to
herein as an "Additional Obligor" and collectively as the "Additional
------------------ ----------
Obligors"), Borrower shall cause such Wholly Owned Subsidiary to execute and
deliver a Joinder Agreement substantially in the Form of Exhibit K and all such
---------
other agreements, guarantees, documents and certificates (including any
amendments to the Basic Documents) as the Administrative Agent may reasonably
request and do such other acts and things as the Administrative Agent may
reasonably request in order to have such Wholly Owned Subsidiary guarantee the
Obligations in accordance with the terms of the Basic Documents and, until the
Collateral Release Date, pledge all Property (other than Real Property) pursuant
to the Security Agreement.
9.22. Restriction on Leases. No obligor or Subsidiary shall, become liable
---------------------
in any way, whether, directly or by assignment or as a guarantor or other
surety, for the obligations of the lessee under any operating lease, unless,
immediately after giving effect to the incurrence of liability with respect to
such lease, the Consolidated Rental Payments of Borrower at the time in effect
shall not exceed $10,000,000 per annum.
--- -----
9.23. Sale or Discount of Receivables. No Obligor or Subsidiary shall,
-------------------------------
directly or indirectly, sell, with or without recourse, or discount, or
otherwise sell for less than the face value thereof, notes or accounts
receivables, other than in connection with trade discounts in the ordinary
<PAGE>
course of business or consistent with past practice and other than as permitted
by Section 9.06(h) or (i).
9.24. Contingent Obligations. No obligor or Subsidiary shall, directly or
----------------------
indirectly, create or become or be liable with respect to any Contingent
Obligation, except:
(a) pursuant to Section 6;
(b) Contingent Obligations in respect of operating leases to the
extent permitted under Section 9.22;
(c) Contingent Obligations of Borrower or any Subsidiary in respect
of Indebtedness or other liabilities of Borrower or any Wholly Owned
Subsidiary which is an Obligor to the extent that the existence of such
Indebtedness or other liabilities is not prohibited under this Agreement;
(d) other Contingent Obligations which, together with the amount of
Indebtedness incurred under Section 9.08(h) (but without duplication), does
not exceed $15,000,000 in the aggregate at any time outstanding;
(e) endorsements for collection or deposit in the ordinary course
of business;
(f) Contingent Obligations of Borrower and the Subsidiaries
existing as of the date hereof and listed in Schedule 8.02 and renewals,
-------------
extensions, modifications and replacements thereof that do not increase the
amount thereof or provide for terms materially less favorable to any
Obligor;
(g) Swap Contracts entered into in the ordinary course of business
and designed to protect the Obligors against fluctuations in interest
rates, currency exchange rates, commodity prices or similar risks; and
(h) Contingent Obligations in connection with Dispositions
permitted under Section 9.06, arising in connection with indemnification
and other agreements in respect of any contract relating to such
Disposition, not to exceed the consideration received by Borrower or any
Subsidiary in connection with such sale and excluding in all cases any
Contingent Obligation with respect to any obligation of any third person
incurred in connection with the acquisition of the Property which is the
subject of such Disposition;
9.25. Post Amendment and Restatement Obligations. Borrower shall, and
------------------------------------------
shall cause each of the Subsidiaries to, as expeditiously as possible but in no
event later than 30 days after the date of this Agreement, obtain and deliver to
the Administrative Agent, (a) down date endorsements to existing title insurance
policies, in form and substance satisfactory to the Administrative Agent,
relating to all real property owned by the Borrower and/or any of its
Subsidiaries as of the date hereof with respect to which Mortgages have been
recorded, and (b) UCC-3 Financing Statement Terminations for filings described
on Schedule 9.25 attached hereto.
-------------
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<PAGE>
Section 10. Events of Default.
-----------------
If one or more of the following events (herein called "Events of Default")
-----------------
shall occur and be continuing:
(a) (i) Borrower shall default in the payment when due (whether at
stated maturity, upon prepayment or repayment or acceleration or otherwise)
of any principal of any Revolving Credit Loan or (ii) Borrower shall
default in the payment when due of interest on any Revolving Credit Loan or
any Reimbursement Obligation or any fee or any other amount payable by it
hereunder or under any other Basic Document when due and such default under
this clause (ii) shall have continued unremedied for five or more Business
Days; or
(b) Borrower or any Subsidiary (Borrower and such Subsidiaries herein
collectively called the "Relevant Parties" and each, a "Relevant Party")
---------------- --------------
shall default in the payment when due of any principal of or interest on
any of its Indebtedness (other than the Revolving Credit Loans) aggregating
$10,000,000 or more, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created, after
giving effect to any consents or waivers relating thereto obtained before
the expiration of any such period of grace; or any event specified in any
note, agreement, indenture or other document evidencing or relating to any
Indebtedness aggregating $10,000,000 or more if the effect of such event
(after giving effect to any consents or waivers relating thereto obtained
before the expiration of any such period of grace) is to cause, or (with
the giving of any notice or the lapse of time or both) to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, such Indebtedness to become due, or to be
prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity; or any Relevant Party shall
default in the payment when due of any amount aggregating $500,000 or more
under any Swap Contract; or any event specified in any Swap Contract shall
occur if the effect of such event is to cause, or (with the giving of
notice or the lapse of time or both) to permit, termination or liquidation
payments aggregating $10,000,000 or more to become due; or
(c) Any representation or warranty made or deemed made in any Basic
Document (or in any modification or supplement thereto) by any Relevant
Party, or in any certificate furnished to any Creditor pursuant to the
provisions thereof, shall prove to have been false or misleading as of the
time made, deemed made or furnished in any material respect; or
(d) Any Obligor or any Subsidiary shall default in the performance of
any of its obligations under any of Sections 9.05 through 9.25 (other than
Section 9.14); or any Obligor or any Subsidiary shall default in the
performance of any of its obligations under Section 9.14 and such default
shall continue unremedied for 30 days or more after notice; or, until the
Collateral Release Date, any obligor shall default in the performance of
any of its obligations under Section 5.02 of the Security Agreement and
such default shall continue unremedied for 10 days or more; or Borrower
shall default in the performance of its
-87-
<PAGE>
obligations under Section 9.01(e) and such default shall continue
unremedied for 10 Business Days or more after notice to Borrower; or any
Obligor or any Subsidiary shall default in the performance of any of its
other obligations in this Agreement, the Security Documents (until the
Collateral Release Date) or the Letter of Credit Documents and such default
shall continue unremedied for a period of thirty days or more after written
notice thereof to such Obligor or Borrower by the Administrative Agent; or
(e) Any Relevant Party shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) Any Relevant Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
Property, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code (as now or
hereafter in effect), (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or readjustment of debts, (v) fail to controvert within 60
days or in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the Bankruptcy Code,
or (vi) take any corporate action for the purpose of effecting any of the
foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the affected Relevant Party, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of
such Relevant Party or of all or any substantial part of its assets, or
(iii) similar relief in respect of such Relevant Party under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and either (1) such proceeding shall
not be actively contested by such Relevant Party, or (2) such proceeding or
case shall continue undismissed, undischarged or unbonded, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against any Relevant Party shall be entered in
an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess
of $5,000,000 in the aggregate (exclusive of judgment amounts to the extent
covered by insurance) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against any
Relevant Party and the same shall not be discharged (or provision shall not
be made for such discharge), vacated or bonded pending appeal, or a stay of
execution thereof shall not be procured, within 45 days from the date of
entry thereof and such Relevant Party shall not, within said period of 45
days, or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
-88-
<PAGE>
(i) Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay under Title IV of ERISA; or Notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could reasonably be expected to cause one or more members of the ERISA
Group to incur a payment obligation in excess of $5,000,000; or
(j) Any Change of Control;
(k) Any Relevant Party shall default in the payment when due of any
obligations in respect of the Trust Preferred Securities or the
Subordinated Debt (other than a valid extension of any interest payment
period with respect thereto), or any Relevant Party shall default in the
performance of any agreement or instrument governing the Trust Preferred
Securities or the Subordinated Debt or under which the Trust Preferred
Securities or the Subordinated Debt are created or evidenced beyond any
applicable grace period (or any event thereunder shall occur and be
continuing), if the effect of such default or event is to permit or cause
the holders of the Trust Preferred Securities or the Subordinated Debt (or
trustee on behalf of any such holder) to (i) cause any obligation in
respect of the Trust Preferred Securities or the Subordinated Debt to
become due prior to its maturity date or the date otherwise established for
such obligation to be satisfied, (ii) require any Relevant Party to prepay,
purchase or redeem the Trust Preferred Securities or (iii) require any
payment to be made under any guaranty of the Trust Preferred Securities or
the Subordinated Debt.
(l) Until the Collateral Release Date, any Security Document after
delivery thereof at any time shall cease to be in full force and effect or
shall for any reason fail to create or cease to maintain a valid and duly
perfected first priority security interest in and Lien upon a material
portion of the Collateral; or
(m) Any Guarantee ceases to be in full force and effect or any of the
Subsidiary Guarantors repudiates, or attempts to repudiate, any of its
obligations under any of the Guarantees;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10, the Administrative Agent may, and upon
written direction of the Majority Lenders shall, by Notice to Borrower,
terminate the Revolving Credit Commitments and/or declare the principal amount
then outstanding of, and the accrued interest on, the Revolving Credit Loans,
the Reimbursement Obligations and all other amounts payable by Borrower
hereunder and under the
-89-
<PAGE>
Notes (including any amounts payable under Section 5.05 or 5.06) to be forthwith
due and payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest, notice of default, notice of acceleration,
notice of intention to accelerate or other formalities of any kind, all of which
are hereby expressly waived by Borrower, reduce any claim to judgment, take any
other action permitted by law and/or take any action permitted to be taken by
the Security Documents during the existence of an Event of Default; and (2) in
the case of the occurrence of an Event of Default referred to in clause (f) or
(g) of this Section 10, the Revolving Credit Commitments shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Revolving Credit Loans, the Reimbursement Obligations and all
other amounts payable by Borrower hereunder and under the Notes (including any
amounts payable under Section 5.05 or 5.06) shall automatically become
immediately due and payable without presentment, demand, protest, notice of
default, notice of acceleration, notice of intention to accelerate or other
formalities of any kind, all of which are hereby expressly waived by Borrower.
In addition, Borrower agrees, upon the occurrence and during the
continuance of any Event of Default if the Administrative Agent has declared the
principal amount then outstanding of, and accrued interest on, the Revolving
Credit Loans, and all other amounts payable to the Lenders hereunder and under
the Notes evidencing such Revolving Credit Loans to be due and payable, it may
and shall, if requested by the Majority Lenders through the Administrative Agent
(and, in the case of any Event of Default referred to in clause (f) or (g) of
this Section 10 with respect to any Relevant Party, forthwith, without any
demand or the taking of any other action by the Administrative Agent or such
Lenders) provide cover for the Letter of Credit Liabilities by paying to the
Administrative Agent immediately available funds in an amount equal to the then
aggregate undrawn face amount of all Letters of Credit, which funds shall be
held by the Administrative Agent in the Collateral Account as collateral
security in the first instance for the Letter of Credit Liabilities and be
subject to withdrawal only as provided in the Security Agreement (or such other
agreement evidencing the Collateral Account).
Section 11. The Administrative Agent.
------------------------
11.01 Appointment, Powers and Immunities. Each Lender hereby appoints and
----------------------------------
authorizes the Administrative Agent to act as its agent under the Basic
Documents with such powers as are specifically delegated to the Administrative
Agent by their terms, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 shall
include reference to its Affiliates and its own and its Affiliates' officers,
directors, employees, attorneys and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in the Basic Documents, and shall not by reason of any
Basic Document or the performance of its duties thereunder be a trustee or
fiduciary for any Lender or any Obligor;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in any Basic Document,
or in any certificate or other document referred to or provided for in, or
received by any of them under, any Basic
-90-
<PAGE>
Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any Basic Document or any other document
referred to or provided for herein or therein or for any failure by
Borrower or any other Person to perform any of its obligations thereunder;
(c) shall not, except to the extent expressly instructed pursuant
to the provisions of this Agreement by the Majority Lenders with respect to
collateral security under the Security Documents, be required to initiate
or conduct any litigation or collection proceedings under any Basic
Document;
(d) shall not be responsible or liable to any Lender for any action
taken or omitted to be taken by it hereunder or under any other Basic
Document or under any other document or instrument referred to or provided
for herein or therein or in connection herewith or therewith, except for
its own gross negligence or willful misconduct;
(e) in performing its functions and duties under the Credit
Documents, shall not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for any
Obligor, other than with respect to the Register, (it being understood that
the provisions of this Section 11 are solely for the benefit of the
Creditors, and no Obligor shall have any rights as a third-party
beneficiary of any of the provisions hereof); or
(f) shall not be under any obligation to take any action hereunder
or under any other Basic Document if the Administrative Agent determines
that taking such action may conflict with any law or any provision of any
Basic Document, or may require the Administrative Agent to qualify to do
business in any jurisdiction where it is not then so qualified.
The Administrative Agent may employ and consult with agents, attorneys-in-fact,
independent Public accountants, attorneys, and other experts and consultants
selected by it, and shall not be responsible or liable for the negligence, gross
negligence or misconduct of any such Person reasonably selected. The
Administrative Agent shall not be responsible or liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants, experts or other advisor. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with any necessary consents
required by Section 12.06. The Syndication Agent and the Documentation Agent,
as such, shall not have any independent duties or obligations under any Basic
Document.
11.02 Reliance by Administrative Agent. The Administrative Agent shall be
--------------------------------
entitled to rely upon any certification, Notice or other communication
(including any thereof by telephone, telecopy, telegram or cable) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons. As to any matters not expressly provided for by this
Agreement or any other Basic Document, the Administrative Agent shall in all
cases be fully
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protected insofar as the Lenders are concerned in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions given by the
Majority Lenders or, if provided herein, in accordance with the instructions
given by the Majority Lenders or all of the Lenders as is required in such
circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders;
provided, however , that the Administrative Agent shall not be required to take
- -------- -------
any action which exposes the Administrative Agent to any responsibility or
liability or which is contrary to any Basic Document or applicable law.
11.03 Defaults. The Administrative Agent shall not be deemed to have
--------
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or Borrower specifying such Default and
stating that such notice is a "Notice of Default" under this Agreement or
another Basic Document. In the event that the Administrative Agent receives such
a notice of the occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall (subject to
Sections 11.01, 11.02, 11.07, 12.03 and 12.04) take such action with respect to
such Default as shall be directed by the Majority Lenders; provided, however,
-------- -------
that, unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default as
it shall deem advisable in the best interests of the Lenders.
11.04 Rights as a Lender. With respect to its Revolving Credit
------------------
Commitments and the Revolving Credit Loans made by it, Chase (and any successor
acting as Administrative Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Administrative Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
Chase in its individual capacity. Chase (and any successor acting as
Administrative Agent) and its Affiliates may (without having to account therefor
to any Lender) accept deposits from, lend money to, act as trustee under
indentures of, provide merchant banking services to, own securities of, make
investments in and generally engage in any kind of banking, trust or other
business with the Obligors (and any of their Subsidiaries or Affiliates) as if
it were not acting as the Administrative Agent, and Chase (and any such
successor) and its Affiliates may accept fees and other consideration from the
Obligors for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders. Each Lender acknowledges the
potential conflict of interest between Chase (i) as a Lender which may hold
disproportionate interests in the various Revolving Credit Commitments and/or
Revolving Credit Loans and (ii) as the Administrative Agent under this Agreement
and each Lender expressly consents to, and waives any claim based upon, such
potential conflicts of interest.
11.05 Indemnification. Each Lender agrees to indemnify and hold harmless
---------------
the Administrative Agent (to the extent not promptly reimbursed under Section
12.03, but without limiting the obligations of Borrower under Section 12.03),
ratably in accordance with the aggregate principal amount of the Revolving
Credit Loans and Reimbursement Obligations held by the Lenders (or, if no
Revolving Credit Loans or Reimbursement Obligations are at the time outstanding,
ratably in accordance with their respective Revolving Credit Commitments), for
any and all
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liabilities (including pursuant to any Environmental Law), obligations, losses,
damages, penalties, actions, judgments, deficiencies, suits, costs, expenses
(including reasonable attorney's fees) or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) arising out of or by reason of
any investigation in or in any way relating to or arising out of any Basic
Document or any other documents contemplated by or referred to therein for any
action taken or omitted to be taken by the Administrative Agent under or in
respect of any of the Basic Documents or other such documents or the
transactions contemplated thereby (including the costs and expenses that
Borrower is obligated to pay under Section 12.03, and including also any
payments under any indemnity that the Administrative Agent is required to issue
to any Lender referred to in Section 4.01(c) of the Security Agreement, or to
any bank referred to in Section 4.02 of the Security Agreement to which
remittances in respect of Accounts, as defined therein, are to be made, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents; provided, however, that no Lender shall be liable for
-------- -------
any of the foregoing to the extent they are determined by a court of competent
jurisdiction in a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of the party to be indemnified. The
agreements set forth in this Section 11.05 shall survive the payment of all
Revolving Credit Loans and other obligations hereunder and shall be in addition
to and not in lieu of any other indemnification agreements contained in any
other Basic Document.
11.06 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
------------------------------------------------------
agrees that it has, independently and without reliance on any other Creditor,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of Borrower and the subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
any other Creditor, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under any Basic Document. The Administrative Agent
shall not be required to keep itself informed as to the performance or
observance by any Obligor of any of the Basic Documents or any other document
referred to or provided for therein or to inspect the Properties or books of
Borrower or any Subsidiary. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or under the Security Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of Borrower or any Subsidiary (or any of their Affiliates)
that may come into the possession of the Administrative Agent or any of its
Affiliates.
11.07 Failure to Act. The Administrative Agent shall in all cases be
--------------
fully justified in failing or refusing to act under any Basic Document unless it
shall receive further assurances to its satisfaction from the Lenders of their
indemnification obligations under Section 11.05 against any and all liability
and expense that may be incurred by it by reason of taking or continuing to take
any such action. In addition, the Administrative Agent shall have no obligation
whatsoever for any action which it reasonably and in good faith believes may
violate applicable law.
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11.08 Resignation or Removal of Administrative Agent. Subject to the
----------------------------------------------
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving 30 days' notice
thereof to the Lenders and Borrower, and the Administrative Agent may be removed
at any time with or without cause by the Majority Lenders, with the consent of
Borrower (not to be unreasonably withheld or delayed) absent an Event of Default
existing at such time (the determination of Majority Lenders for purposes of
this Section 11.08 to be made without reference to any Revolving Credit
Commitments, Revolving Credit Loans or Letter of Credit Liabilities held by the
Administrative Agent). Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of its duties,
liabilities and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this Section 11, Section 12.03 and all other similar provisions shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
11.09 Consents Under Other Basic Documents. Except as otherwise provided
------------------------------------
in Section 12.04 with respect to this Agreement and the other Basic Documents,
the Administrative Agent may, with the prior consent of the Majority Lenders
(but not otherwise), consent to any modification, supplement, or waiver under
any of the other Basic Documents.
11.10. Collateral Sub-Agents. Each Lender by its execution and delivery
---------------------
of this Agreement agrees, as contemplated by Section 4.03 of the Security
Agreement, that, in the event it shall hold any Permitted Investments referred
to therein, such Permitted Investments shall be held in the name and under the
control of such Lender, and such Lender shall hold such Permitted Investments as
a collateral sub-agent for the Administrative Agent thereunder. Borrower by its
execution and delivery of this Agreement hereby consents to the foregoing.
11.11. Exculpatory Provisions. Neither the Administrative Agent nor any
----------------------
of its officers, directors, employees, representatives, agents, attorneys-in-
fact or Affiliates shall be (i) liable to any Lender for any waiver, consent or
approval given or any action taken or omitted to be taken by such Person under
or in connection with any Basic Document or be responsible for the consequences
of any oversight or error in judgment by such Person whatsoever, except to the
extent that such action, omission, oversight or error in judgment is determined
by a court of competent jurisdiction in a final non-appealable judgment to have
resulted solely from such Person's own gross negligence or bad faith or (ii)
responsible in any manner to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of any Basic Document or
for any representations, warranties, recitals or statements made therein or made
in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection
therewith furnished or made by the Administrative Agent to the Lenders or by or
on behalf of any Obligor or any of their respective officers to any Creditor.
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Section 12. Miscellaneous.
-------------
12.01 Waiver. No failure on the part of any Creditor to exercise and no
------
delay in exercising, and no course of dealing with respect to, any right, power
or privilege under any Basic Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under any
Basic Document preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
12.02 Notices. All notices, requests and other communications provided
-------
for herein and under the Security Documents (including any modifications of, or
waivers, requests or consents under, this Agreement) shall be given or made in
writing (including by facsimile) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof;
or, as to any party, at such other address as shall be designated by such party
in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by facsimile or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
12.03 Expenses, Etc. The Obligors, jointly and severally, agree: (a) to
-------------
pay or reimburse the Administrative Agent for all of its reasonable out-of-
pocket costs and expenses (including the reasonable fees and expenses of legal
counsel) in connection with (i) the negotiation, preparation, execution and
delivery of the Basic Documents and the extension of credit hereunder and (ii)
the negotiation or preparation of any modification, supplement or waiver of any
of the terms of any Basic Document, including this Agreement as amended and
restated on the date hereof (whether or not consummated or effective); (b) to
pay or reimburse each of the Lenders and the Administrative Agent for all
reasonable out-of-pocket costs and expenses of the Lenders and the
Administrative Agent (including the reasonable fees and expenses of legal
counsel) in connection with (i) any Default and any enforcement or collection
proceedings resulting therefrom, including all manner of participation in or
other involvement with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, (y) judicial or regulatory proceedings
and (z) workout, restructuring or other negotiations or proceedings (whether or
not the workout, restructuring or transaction contemplated thereby is
consummated) and (ii) the enforcement of this Section 12.03; and (c) to pay or
reimburse each of the Lenders and the Administrative Agent for all costs,
expenses, taxes (except for Oklahoma mortgage recording tax), assessments and
other charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated by any Basic Document or any
other document referred to therein.
The Obligors, jointly and severally, hereby agree to indemnify each
Creditor and their respective Affiliates, directors, trustees, officers,
employees and agents (each, an "Indemnitee") from, and hold each of them
----------
harmless against, and that no Indemnitee will have any liability for, any and
all Losses incurred by any of them (including any and all Losses incurred by the
Administrative Agent, or the Issuing Lender to any Lender, whether or not any
Creditor is a party thereto) directly or indirectly arising out of or by reason
of or relating to the negotiation, execution,
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delivery, performance, administration or enforcement of any Basic Document, any
of the transactions contemplated by the Basic Documents, any breach by any
Obligor of any representation, warranty, covenant or other agreement contained
in any of the Basic Documents, the use or proposed use of any of the Revolving
Credit Loans or Letters of Credit or the use of any collateral security for the
Revolving Credit Loans (including the exercise by any Creditor of the rights and
remedies or any power of attorney with respect thereto and any action or
inaction in respect thereof), but excluding any such Losses to the extent
finally determined to have arisen from the gross negligence or willful
misconduct of the Indemnitee. Without limiting the generality of the foregoing,
the Obligors, jointly and severally, will indemnify each Creditor and each other
Indemnitee from, and hold each Creditor and each other Indemnitee harmless
against, any Losses described in the preceding sentence arising under any
Environmental Law as a result of (A) the past, present or future operations of
Borrower or any Subsidiary (or any predecessor in interest to Borrower or any
Subsidiary), (B) the past, present or future condition of any site or facility
owned, operated or leased at any time by Borrower or any Subsidiary (or any such
predecessor in interest), or (C) any Release or threatened Release of any
Hazardous Materials at or from any such site or facility, including any such
Release or threatened Release that shall occur during any period when any
Creditor shall be in possession of any such site or facility following the
exercise by such Creditor of any of its rights and remedies hereunder or under
any of the Security Documents; provided, however, that the indemnity hereunder
-------- -------
shall be subject to the exclusions from indemnification set forth in the
preceding sentence. In case any action is brought against any Indemnitee
relating to Losses arising under any Environmental Law as contemplated by the
preceding sentence, Borrower will be entitled to participate therein and, to the
extent that it may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnitee; provided, however, that if (i) the use of
-------- -------
counsel chosen by Borrower to represent the Indemnitee would present such
counsel with a conflict of interest, (ii) the defendants in any such action
include both the Indemnitee and any Obligor and the Indemnitee shall have been
advised by counsel that there may be one or more legal defenses available to it
and/or other Indemnitees that are different from or additional to those
available to any Obligor, or (iii) Borrower shall not have employed counsel
reasonably satisfactory to the Indemnitee to represent the Indemnitee within a
reasonable time after receipt by the Obligors of notice of the institution of
such action, then, in each such case, Borrower shall not have the right to
assume the defense of such action on behalf of such Indemnitee and such
Indemnitee shall have the right to select separate counsel to defend such action
on behalf of such Indemnitee at the expense of Borrower.
To the extent that the undertaking to indemnify and hold harmless set forth
in this Section 12.03 or any other provision of any Basic Document providing for
indemnification is unenforceable because it is violative of any law or public
policy or otherwise, the Obligors, jointly and severally, shall contribute the
maximum portion that each of them is permitted to pay and satisfy
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under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses to
any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to in
any indemnification or expense reimbursement provisions set forth in this
Agreement or any other Basic Document, except to the extent that any Loss is
determined by a court of competent jurisdiction in a final nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
The Obligors agree that, without the prior written consent of the
Administrative Agent and the Majority Lenders, no Obligor will settle,
compromise or consent to the entry of any judgment in any pending or threatened
Proceeding in respect of which indemnification is reasonably likely to be sought
under the indemnification provisions of this Section 12.03 (whether or not any
Indemnitee is an actual or potential party to such Proceeding), unless such
settlement, compromise or consent includes an unconditional written release of
each Indemnitee from all liability arising out of such Proceeding and does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnitee and does not involve any payment of money or
other value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
12.04 Amendments, Etc.
----------------
(i) Any provision of this Agreement or any other Basic Document
may be amended, modified or supplemented by an instrument in writing
signed by the Obligors and the Majority Lenders, or by the Obligors
and the Administrative Agent acting with the written consent of the
Majority Lenders, and any provision of this Agreement may be waived by
an instrument in writing signed by the Obligors and the Majority
Lenders, or by the Obligors and the Administrative Agent acting with
the written consent of the Majority Lenders and Borrower; provided,
--------
however, that:
-------
(a) no amendment, modification, supplement or waiver shall,
unless by an instrument signed by all of the Lenders or by the
Administrative Agent acting with the written consent of each
Lender (with Obligations directly affected in the case of clause
(I)): (I) extend the scheduled final maturity of any Revolving
Credit Loan or Note, or extend the stated expiration date of any
Letter of Credit beyond the Revolving Credit Commitment
Termination Date, or reduce the rate of interest (other than any
waiver of any increase in the interest rate applicable to any of
the Revolving Credit Loans pursuant to Section 3.02 as a result
of the applicability of the Post Default Rate) or fees thereon,
or extend the time of payment of interest or fees thereon, or
reduce the principal amount thereof, (II) extend the final
maturity of any of the Revolving Credit Commitments (or reinstate
any
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Revolving Credit Commitment terminated pursuant to Section 10),
(III) change the currency in which any Obligation is payable,
(IV) amend the terms of this Section 12.04 or Sections 4.07, 5 or
11.09, (V) reduce the percentages specified in the definition of
the term "Majority Lenders" or amend any provision of any Credit
Document requiring the consent of all the Lenders or modify in
any other manner the number or percentage of the Lenders required
to make any determinations or waive any rights hereunder or to
modify any provision hereof (it being understood that, with the
consent of the Majority Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination
of the Majority Lenders without notice to or consent of any other
Lender or the Administrative Agent on substantially the same
basis as the Revolving Credit Commitments (and related extensions
of credit) are included on the date hereof), (VI) release any
Guarantor from its obligations under Section 6 (unless permitted
by this Agreement), (VII) consent to the assignment or transfer
by any Obligor of any of its rights and obligations under any
Basic Document, (VIII) release all or substantially all the
Collateral or terminate the Lien under any Basic Document in
respect of all or substantially all the Collateral (except as
permitted by the Basic Documents including Section 12.16 hereof)
or agree to additional obligations (other than the Obligations)
being secured by the Collateral, or (IX) amend Section 12.03 or
any other indemnification and expense reimbursement provision set
forth in any Basic Document;
(b) no such amendment, modification, supplement or waiver
shall increase the Revolving Credit Commitment of any Lender over
the amount thereof then in effect without the consent of such
Lender (it being understood that amendments, modifications or
waivers of conditions precedent, covenants, Default or Events of
Default shall not constitute an increase of the Revolving Credit
Commitment of any Lender);
(c) any modification or supplement of or waiver with
respect to Section 11 which affects the Administrative Agent in
its capacity as such shall require the consent of the
Administrative Agent;
(d) no consent of any Lender need be obtained and the
Administrative Agent is hereby authorized, to release any Lien
securing the Obligations on Property which is the subject of any
Disposition permitted by this Agreement and the other Basic
Documents; and
(e) no amendment, modification or waiver shall affect the
rights or duties of the Issuing Lender in its capacity as such or
alter the obligation of any Lender pursuant to Section 2.03(e) or
2.03(f) without the consent of the Issuing Lender.
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(ii) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by Section 12.04(i)(a) (other than clause (I) of such
section), the consent of the Majority Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required
is not obtained, then Borrower shall have the right to replace each
such non-consenting Lender or Lenders (so long as all non-consenting
Lenders are so replaced) with one or more Replacement Lenders pursuant
to Section 2.11 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge
or termination; provided, however, that Borrower shall not have the
-------- -------
right to replace a Lender solely as a result of the exercise of such
Lender's rights (and the withholding of any required consent by such
Lender) pursuant to clause (I) of Section 12.04(i)(a).
12.05 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.06 Assignments and Participations.
------------------------------
(a) No Obligor may assign its respective rights or obligations
hereunder or under the Notes without the prior consent of all of the
Lenders.
(b) Each Lender may assign to any Eligible Person any of its
Revolving Credit Loans, its Notes, its Letter of Credit Interests and its
Revolving Credit Commitments (but only with the consent (which shall not be
unreasonably withheld or delayed) of Borrower, the Administrative Agent and
the Issuing Lender); provided, however, that (i) no such consent by
-------- -------
Borrower, the Issuing Lender or the Administrative Agent shall be required
in the case of any assignment to another Lender or to any Lender's
Affiliate (in which case, the assignee and assignor Lenders shall give
notice of the assignment to the Administrative Agent), and no consent of
Borrower need be obtained if any Default or Event of Default shall have
occurred and be continuing; (ii) except with respect to any assignment
pursuant to Section 2.11, any such assignment (other than to a Lender or
any Lender's Affiliate) shall be in an aggregate amount at least equal to
$5,000,000 (unless Borrower and the Administrative Agent otherwise agree)
(or, if less, the full amount of such assigning Lender's Revolving Credit
Loans, Letter of Credit Interests and Revolving Credit Commitments); (iii)
each such assignment by a Lender of its Revolving Credit Loans, Note,
Letter of Credit Interests and Revolving Credit Commitment shall be made in
such manner so that the same portion of its Revolving Credit Loans, Note,
Letter of Credit Interests and Revolving Credit Commitment is assigned to
the respective assignee; and (iv) in no event may any such assignment be
made to any Obligor or any of its Affiliates. Upon execution and delivery
by the assignee to Borrower and the Administrative Agent of an instrument
in writing substantially in the form of Exhibit F, and upon consent thereto
---------
by Borrower, the Administrative Agent and the Issuing Lender to the extent
required above, the assignee shall have, to the extent of such assignment
(unless otherwise provided in such assignment with the consent of the
Administrative Agent), the obligations, rights and benefits of a Lender
hereunder holding the
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Revolving Credit Commitment(s), Revolving Credit Loans (or portions
thereof) and Letter of Credit Interests assigned to it (in addition to the
Revolving Credit Commitment(s), Letter of Credit Interests and Revolving
Credit Loans, if any, theretofore held by such assignee) and the assigning
Lender shall, to the extent of such assignment, be released from the
Revolving Credit Commitment(s) (or portion(s) thereof) so assigned. At the
time of each assignment pursuant to this Section 12.06(b) to a Person which
is not already a Lender hereunder and which is not a United States person
(as such term is defined in Section 7701(a)(3) of the Code) for Federal
income tax purposes, the respective assignee Lender shall provide to
Borrower and the Administrative Agent the appropriate Internal Revenue
Service Forms (and, if applicable, a Section 5.06 Certificate) described in
Section 5.06(b). Upon any such assignment the assignee Lender shall pay a
fee of $3,500 to the Administrative Agent.
(c) A Lender may sell or agree to sell to one or more other Eligible
Persons a participation in all or any part of the Revolving Credit Loans
and Letter of Credit Interests held by it, or in its Revolving Credit
Commitments, in which event each purchaser of a participation (a
"Participant") shall be entitled to the rights and benefits of the
------------
provisions of Section 5 (provided, however, that no Participant shall be
-------- -------
entitled to receive any greater amount pursuant to Section 5 than the
transferor Lender would have been entitled to receive in respect of the
participation effected by such transferor Lender had no participation
occurred) with respect to its participation in such Revolving Credit Loans,
Letter of Credit Interests and Revolving Credit Commitments as if such
Participant were a "Lender" for purposes of said Section, but, except as
otherwise provided in Section 4.07(c), shall not have any other rights or
benefits under this Agreement or any Note or any other Basic Document (the
Participant's rights against such Lender in respect of such participation
to be those set forth in the agreements executed by such Lender in favor of
the Participant). All amounts payable by Borrower to any Lender under
Section 5 in respect of Revolving Credit Loans, Letter of Credit Interests
and its Revolving Credit Commitments, shall be determined as if such Lender
had not sold or agreed to sell any participation in such Revolving Credit
Loans, Letter of Credit Interests and Revolving Credit Commitments, and as
if such Lender were funding each of such Revolving Credit Loans, Letter of
Credit Interests and Revolving Credit Commitments in the same way that it
is funding the portion of such Revolving Credit Loan, Letter of Credit
Interests and Revolving Credit Commitments in which no participations have
been sold. In no event shall a Lender that sells a participation agree
with the Participant to take or refrain from taking any action hereunder or
under any other Basic Document, except that such Lender may agree with the
Participant that it will not, without the consent of the Participant, agree
to (i) increase or extend the final maturity, or extend the time or waive
any requirement for the reduction or termination, of such Lender's related
Revolving Credit Commitment (it being understood that no Lender shall agree
that a waiver of any condition precedent, covenant or Event of Default or
Default requires such consent), (ii) extend the date fixed for any
reduction of Revolving Credit Commitments or interest on the related
Revolving Credit Loan or Reimbursement Obligations or any portion of any
fee hereunder payable to the Participant (through the subject Lender),
(iii) reduce the amount of any such reduction of Revolving Credit
Commitments, (iv) reduce the rate at which interest is payable thereon
(other than as a result of waiving applicability of any post-default
increase
-100-
<PAGE>
in interest rates), or any fee hereunder payable to the Participant
(through the subject Lender), to a level below the rate at which the
Participant is entitled to receive such interest or fee, (v) release any
Subsidiary Guarantor from its obligations under Section 6 (unless permitted
by this Agreement), or (vi) release all or substantially all of the
collateral securing the Obligations (except as permitted by the Basic
Documents, including Section 12.15 hereof).
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may assign and
pledge all or any portion of its Revolving Credit Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation A
and any operating Circular issued by such Federal Reserve Bank and, in the
case of a Lender that is an investment fund, any such Lender may assign or
pledge any portion of its Revolving Credit Loans and its Notes to its
trustee in support of its obligations to its trustee, without notice to or
consent of Borrower and the Administrative Agent. No such assignment shall
release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning Borrower or any
Subsidiary in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants)
subject, however, to the provisions of Section 12.11. In addition, the
Administrative Agent may furnish any information concerning any Obligor or
any of its Affiliates in the Administrative Agent's possession to any
Affiliate of the Administrative Agent. The Obligors shall assist any
Lender in effectuating any assignment or participation pursuant to this
Section 12.06 (including during syndication) in whatever manner such Lender
reasonably deems necessary, including the participation in meetings with
prospective transferees.
(f) Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Revolving Credit
Loan or Reimbursement Obligation or Revolving Credit Commitment held by it
hereunder to any Obligor or any of its Affiliates or Subsidiaries without
the prior written consent of each Lender.
12.07 Survival. The obligations of the Obligors under Sections 5.01,
--------
5.05, 5.06 and 12.03, the obligations of each Subsidiary Guarantor under Section
6.03, and the obligations of the Lenders under Sections 5.06 and 11.05, shall
survive the repayment of the Revolving Credit Loans and Reimbursement
Obligations and the termination of the Revolving Credit Commitments and, in the
case of any Lender that may assign any interest in its Revolving Credit
Commitments, Revolving Credit Loans or Letter of Credit Interest hereunder,
shall (to the extent relating to such time as it was a Lender) survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder. In addition, each representation and warranty made,
or deemed to be made by a notice of any extension of credit, herein or pursuant
hereto shall survive the execution and delivery of this Agreement and the Notes
and the making of any extension of credit hereunder.
-101-
<PAGE>
12.08 Captions. The table of contents and captions and section headings
--------
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
12.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc.
--------------------------------------------------------
Notwithstanding anything in any Basic Document to the contrary, from the date of
this Agreement each Basic Document shall be governed by, and construed in
accordance with, the law of the State of Texas to the same extent as such Basic
Documents have heretofore been governed by the law of the State of New York,
without regard to the principles of conflicts of laws thereof. Each Obligor
hereby irrevocably and unconditionally: (a) submits for itself and its property
in any Proceeding relating to any Basic Document to which it is a party or for
recognition and enforcement of any judgment in respect thereof, to the non-
exclusive general jurisdiction of the courts of the State of Texas, the courts
of the United States of America for the Northern District of Texas, Dallas
Division, and appellate courts from any thereof; (b) consents that any such
Proceeding may be brought in such courts and waives trial by jury and any
objection that it may now or hereafter have to the venue of any such Proceeding
in any such court or that such Proceeding was brought in an inconvenient court
and agrees not to plead or claim the same; (c) agrees that service of process in
any such Proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
Borrower at its address set forth in Section 12.02 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction.
12.11. Confidentiality. Each Creditor agrees to take normal and
---------------
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by Borrower or any Subsidiary in
connection with this Agreement; provided, however, that any Creditor may
-------- -------
disclose such information (a) at the request of any bank regulatory authority or
the NAIC or in connection with an examination of such Creditor by any such
authority or the NAIC, (b) pursuant to subpoena or other court process, (c) when
required to do so in accordance with the provisions of any applicable law, (d)
at the discretion of any other Governmental Authority, (e) to such Creditor's
Affiliates, independent auditors and other professional advisors or (f) to any
transferee or potential transferee; provided, however, that such transferee
-------- -------
agrees to comply with the provisions of this Section 12.11.
12.12. Independence of Representations, Warranties and Covenants. The
---------------------------------------------------------
representations, warranties and covenants contained herein shall be independent
of each other and no exception to any representation, warranty or covenant shall
be deemed to be an exception to any other
-102-
<PAGE>
representation, warranty or covenant contained herein unless expressly provided,
nor shall any such exception be deemed to permit any action or omission that
would be in contravention of applicable law.
12.13. Severability. Wherever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
12.14. Entirety. The Basic Documents represent the final agreement
--------
between Borrower, Subsidiary Guarantors, Lenders, and Administrative Agent and
may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the parties. There are no unwritten oral agreements between
the parties.
12.15. Acknowledgments. The Obligors hereby acknowledge that: (a) each of
---------------
them has been advised by counsel in connection with the negotiation, execution
and delivery of the Basic Documents; (b) no Creditor has any fiduciary or
similar relationships to any Obligor pursuant to the Basic Documents and the
relationship pursuant to the Basic Documents between the creditors on the one
hand, and the Obligors, on the other hand, is solely that of debtor and
creditor; and (c) no joint venture exists among the Creditors or among the
Obligors and the Creditors.
12.16. Release of Collateral. If (i) the Investment Grade Date has
---------------------
occurred, or (ii) at all times during any six consecutive fiscal quarters of
Borrower, (A) the Leverage Ratio is less than 2.50:1.00 and (B) the Debt to
Capitalization Ratio is less than 0.40:1.00, then the Administrative Agent
shall, at the request and sole expense of Borrower, take any action and execute
all documents and instruments to effect the release of the Lien of the Basic
Documents on the Collateral (the date of such release, the "Collateral Release
------------------
Date"). For purposes of this Section 12.16, "Total Debt" (as used in the
- ---- -------------
definitions of Leverage Ratio and Debt to Capitalization Ratio) shall include
the Subordinated Debt.
12.17. Security Documents, Etc.
------------------------
(a) The parties hereto hereby acknowledge that the definition of
Secured Obligations under any of the Security Documents includes all
obligations of any Obligor pursuant to Swap Contracts to which such Obligor
is a party with any Lender or Affiliate of any Lender, and the definition
of Secured Parties under any of the Security Documents includes any Lender
or Affiliate of any Lender who is a party to such Swap Contracts.
-103-
<PAGE>
(b) Upon the consummation of any Acquisition, the annexes to the
Security Agreement shall be modified, pursuant to the Joinder Agreement
executed in connection therewith by adding thereto all the additional
property (including capital stock and other ownership interests) to be
pledged in connection with such Acquisition.
[The remainder of this page is intentionally left blank.]
-104-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
IMCO RECYCLING INC.
By: /s/ James B. Walburg
---------------------------------
Name: James B. Walburg
Title: Senior Vice President
Address for Notices:
5215 North O'Connor Blvd.
Suite 940
Irving, TX 75039
Attention: James B. Walburg
Telecopier No.: (972) 401-7342
Telephone No.: (972) 401-7351
-105-
<PAGE>
IMCO INVESTMENT COMPANY
IMCO RECYCLING OF INDIANA INC.
IMCO ENERGY CORP.
IMCO RECYCLING OF ILLINOIS INC.
ALCHEM ALUMINUM, INC.
IMCO RECYCLING OF MICHIGAN, L.L.C.
PITTSBURG ALUMINUM, INC.
INTERAMERICAN ZINC, INC.
IMCO RECYCLING OF CALIFORNIA, INC.
IMCO INTERNATIONAL, INC.
IMCO RECYCLING OF OHIO INC.
IMSAMET, INC.
IMCO RECYCLING OF IDAHO, INC.
IMCO RECYCLING OF UTAH, INC.
ROCK CREEK ALUMINUM, INC.
U.S. ZINC CORPORATION
GULF REDUCTION CORPORATION
MIDWEST ZINC CORPORATION
WESTERN ZINC CORPORATION
METALCHEM, INC.
U.S. ZINC EXPORT CORPORATION
ALCHEM ALUMINUM SHELBYVILLE, INC.
B & F METALS, INC.
By: /s/ James B. Walburg
--------------------------------
Name: James B. Walburg
Title: Vice President of each of
the above-named entities
Address for Notices:
See Schedule 8.14
-------------
Attention: See Schedule 8.14
-------------
Telecopier No.: See Schedule 8.14
-------------
Telephone No.: See Schedule 8.14
-------------
-106-
<PAGE>
IMCO INDIANA PARTNERSHIP L.P.
By IMCO Energy Corp., its General Partner
By: /s/ James B. Walburg
------------------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See Schedule 8.14
-------------
Attention: See Schedule 8.14
-------------
Telecopier No.: See Schedule 8.14
-------------
Telephone No.: See Schedule 8.14
-------------
IMCO MANAGEMENT PARTNERSHIP, L.P.
By IMCO Recycling, Inc., its General
By: /s/ James B. Walburg
-----------------------------------------
Name: James B. Walburg
Title: Senior Vice President
Address for Notices:
See Schedule 8.14
-------------
Attention: See Schedule 8.14
-------------
Telecopier No.: See Schedule 8.14
-------------
Telephone No.: See Schedule 8.14
-------------
-107-
<PAGE>
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ Mae K. Reeves
-----------------------------
Mae K. Reeves
Vice President
Address for Notices:
Chase Bank of Texas, National Association
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Attention: Mae K. Reeves
Telecopier No.: (214) 965-2990
Telephone No.: (214) 965-2159
With Copies of Borrowing Notices To:
The Chase Manhattan Bank
Agency Services
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Muniram Appanna
Telecopier No.: (212) 552-7490
Telephone No.: (212) 552-7943
Wiring Instructions:
Chase Bank of Texas, National Association
ABA #: 133 000 609
For Account Number: 0010 144 7481
Attention: Muniram Appanna,
Agency Services
Reference: IMCO Recycling
-108-
<PAGE>
BANK OF AMERICA, N.A.,
As Syndication Agent
By: /s/ Suzanne B. Smith
-----------------------------
Name: Suzanne B. Smith
Title: Principal
Address for Notices:
Bank of America, N.A.
Corporate Credit Services
P.O. Box 831000
Dallas, TX 75283-1000
Attention: Kajal Patel
Telecopier No.: (214) 290-9419
Telephone No.: (214) 209-0993
-109-
<PAGE>
LENDERS
-------
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Mae K. Reeves
-------------------------
Name: Mae K. Reeves
Title: Vice President
Address for Notices:
Address: 2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Fax No.: (214) 965-2990
Telephone No.: (214) 965-2159
Attention: Mae K. Reeves
Wiring Instructions:
Chase Bank of Texas, National Association
ABA #: 113000609
For Account Number: 0010-038-1673
Attention: Payment Processing
Reference: IMCO Recycling
-110-
<PAGE>
BANK OF AMERICA, N.A., as a Lender
By: /s/ Suzanne B. Smith
------------------------------------------
Name: Suzanne B. Smith
Title: Principal
Address for Notices:
Bank of America, N.A.
Corporate Credit Services
P.O. Box 831000
Dallas, TX 75283-1000
Attention: Kajal Patel
Telecopier No.: (214) 290-9419
Telephone No.: (214) 209-0993
Wiring Instructions:
Bank of America, N.A.
ABA #: 111000012
For Account Number: 1292000883
Attention: Kajal Patel
Reference: IMCO Recycling, Inc.
-111-
<PAGE>
MERRILL LYNCH CAPITAL CORPORATION
as a Lender
By: /s/ Carol J. E. Feeley
------------------------------------------
Name: Carol J. E. Feeley
Title: Vice President
Lending Office for all Revolving Credit
Loans:
World Financial Center
c/o Merrill Lynch & Co.
North Tower - 7th Floor
250 Vesey Street
New York, New York 10281-1307
Address for Notices:
World Financial Center
c/o Merrill Lynch & Co.
South Tower
225 Liberty Street
New York, New York 10080-6114
Attention: Mark Campbell
Telecopier No.: (212) 449-6996
Telephone No.: (212) 738-1719
-112-
<PAGE>
BANK OF TOKYO-MITSUBISHI, LTD.,
as a Lender
By: /s/ Douglas M. Barnell /s/ John M. Mearns
-----------------------------------------------
Name: Douglas M. Barnell John M. Mearns
Title: Vice President VP & Manager
Address for Notices:
Bank of Tokyo-Mitsubishi, Ltd.
2001 Ross Avenue, Suite 3150
Dallas, Texas 75201
Attention: Douglas M. Barnell
Telecopier No.: (214) 954-1007
Telephone No.: (214) 954-1200 x. 105
Wiring Instructions:
Bank of Tokyo-Mitsubishi, Ltd.
ABA # 0260-0963-2
For Account Number: 30001710
Attention: Nadra Breir
Reference: Imco principal, interest, fees, etc.
-113-
<PAGE>
BANK ONE, N.A. (formerly known as The First
National Bank of Chicago) (Main Office Chicago),
as a Lender
By: /s/ Thomas R. Freas
-------------------------------
Name: Thomas R. Freas
Title: Managing Director
Address for Notices:
Bank One, NA
3rd Floor
1717 Main Street
(Mail Code TX-2436)
Dallas, Texas 75201
Attention: Thomas R. Freas
Telecopier No.: (214) 290-2765
Telephone No.: (214) 290-4110
Wiring Instructions:
Bank One, N.A.
ABA #: 071000013
For Account Number: 75217653/DES
Attention: S. Woods
Reference: IMCO Recycling, Inc.
<PAGE>
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and a Lender
By: /s/ Lynn Koncz
-----------------------------------------------
Name: Lynn Koncz
Title: Vice President
Address for Notices:
PNC Bank, National Association
2 PNC Plaza, 3rd Floor
620 Liberty Avenue
Pittsburgh, PA 15222
Attention: Richard Katz
Telecopier No.: (412) 768-4586
Telephone No.: (412) 768-9856
Wiring Instructions:
PNC Bank
ABA #: 043-000-096
For Account Number: 196030010890
Attention: Commercial Loan Operations
Reference: IMCO Recycling, Inc.
-115-
<PAGE>
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, AG, as a Lender
By: /s/ Mark K. Connelly
----------------------------------------------
Name: Mark K. Connelly
Title: Vice President
By: /s/ Rob T. Jokhai
----------------------------------------------
Name: Rob T. Jokhai
Title: Assistant Vice President
Address for Notices:
DG Bank, AG
609 Fifth Avenue
New York, NY 10017
Attention: Mark K. Connelly
Telecopier No.: (212) 745-1556
Telephone No.: (212) 745-1560
Wiring Instructions:
DG Bank via Chips System
DG Bank ABA #: 845
For Account Number: 026008455 (Federal Reserve
Bank of New York)
Attention: Ed Thome
Reference: IMCO
-116-
<PAGE>
FIRST AMERICAN NATIONAL BANK, as a Lender
By: /s/ Seth Butler
-----------------------------------------------
Name: Seth Butler
Title: Corporate Bank Officer
Address for Notices:
First American National Bank
Fourth and Union Street - 3rd Floor
Nashville, TN 37237-0310
Attention: Seth Butler
Telecopier No.: (615) 748-2485
Telephone No.: (615) 770-4059
Wiring Instructions:
First American National Bank
ABA #: 064000017
For Account Number: 1002295498
Attention: Shirley Grey
Reference: IMCO Recycling, Inc.
-117-
<PAGE>
NATIONAL CITY BANK, as a Lender
By: /s/ Wilmer J. Jacobs
-----------------------------------------
Name: Wilmer J. Jacobs
Title: Assistant Vice President
Address for Notices:
National City Bank
1900 East Ninth Street, Loc. 2077
Cleveland, OH 44114
Attention: Wil J. Jacobs
Telecopier No.: (216) 222-0003
Telephone No.: (216) 575-2562
Wiring Instructions:
National City Bank
ABA #: 041000124
For Account Number: 151804
Attention: Commercial Loan Operations
Reference: IMCO Recycling
-118-
<PAGE>
AMSOUTH BANK, as a Lender
By: /s/ Brock E. Fredette
-----------------------------------------
Name: Brock E. Fredette
Title: Vice President
Address for Notices:
AmSouth Bank
1900 Fifth Avenue North
Birmingham, AL 35203
Attention: Brock E. Fredette
Telecopier No.: (205) 583-4436
Telephone No.: (205) 801-0737
Wiring Instructions:
AmSouth Bank
ABA #: 062000019
For Corporate Clearing Account Number:
001102450400100
Attention: Jan Toney
Reference: IMCO Recycling, Inc.
-119-
<PAGE>
COMERICA BANK, as a Lender
By: /s/ Mark Grover
-----------------------------------------
Name: Mark Grover
Title: Vice President
Address for Notices:
Comerica Bank
4100 Spring Valley Rd., Suite 900
Dallas, TX 75240
Attention: Mark Grover
Telecopier No.: (972) 361-2550
Telephone No.: (972) 361-2545
Wiring Instructions:
Comerica Bank
ABA #: 072000096
For Account Number: To benefit Commercial
Loan Servicing GL AC/21585-90010 for final
credit or reference IMCO Recycling, Inc.
#4106955537
-120-
<PAGE>
WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, as a Lender
By: /s/ Zachary S. Johnson
----------------------------------------
Name: Zachary S. Johnson
Title: Assistant Vice President
Address for Notices:
Wells Fargo Bank (Texas), National
Association
1445 Ross Avenue, Suite 300
Dallas, TX 75202
Attention: Zachary S. Johnson
Telecopier No.: (214) 969-0370
Telephone No.: (214) 740-1587
Wiring Instructions:
Wells Fargo Bank
ABA #: 121000248
For Account Number: 2712-507201
Attention: Evelyn Lucas
Reference: IMCO Recycling, Inc.
-121
<PAGE>
Exhibit 15.1
We are aware of the incorporation by reference in the Registration Statements
(Form S-8 No. 33-26641, Form S-8 No. 33-34745, Form S-8 No. 33-76780, Form S-8
No. 333-00075, Form S-8 No. 333-07091 and Form S-8 No. 333-81949) pertaining to
the Nonqualified Stock Option Plan of IMCO Recycling Inc., the IMCO Recycling
Inc. Amended and Restated Stock Option Plan, the IMCO Recycling Inc. 1992 Stock
Option Plan, the IMCO Recycling Inc. Amended and Restated 1992 Stock Option
Plan, the IMCO Recycling Inc. Annual Incentive Program and the IMCO Recycling
Inc. Employee Stock Purchase Plan of our report dated October 26, 1999 relating
to the unaudited consolidated interim financial statements of IMCO Recycling
Inc. which are included in its Form 10-Q for the quarter ended September 30,
1999.
Pursuant to Rule 436(c) of the Securities Act of 1933, our report is not a part
of the registration statements prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/S/ ERNST & YOUNG LLP
Dallas, Texas
November 9, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 2,802
<SECURITIES> 0
<RECEIVABLES> 123,385
<ALLOWANCES> 2,682
<INVENTORY> 60,780
<CURRENT-ASSETS> 192,573
<PP&E> 273,218
<DEPRECIATION> 87,727
<TOTAL-ASSETS> 517,134
<CURRENT-LIABILITIES> 100,328
<BONDS> 194,992
0
0
<COMMON> 1,711
<OTHER-SE> 197,922
<TOTAL-LIABILITY-AND-EQUITY> 517,134
<SALES> 551,427
<TOTAL-REVENUES> 551,427
<CGS> 495,377
<TOTAL-COSTS> 495,377
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 1,272
<INTEREST-EXPENSE> 8,989
<INCOME-PRETAX> 25,791
<INCOME-TAX> 9,291
<INCOME-CONTINUING> 16,259
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 16,259
<EPS-BASIC> 0.99
<EPS-DILUTED> 0.98
</TABLE>
