Exhibit 10.2
FIFTH AMENDED AND RESTATED
REVOLVING LINE OF CREDIT NOTE
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November 19, 2008
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Dallas, Texas
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$140,000,000.00
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FOR VALUE RECEIVED, the undersigned
(hereinafter called “ Maker ”) does hereby
unconditionally promise to pay to the order of Wells Fargo Bank,
National Association , a national banking association (“
Payee ”), at its office at 1445 Ross Avenue, 3rd
Floor, MAC T5303-031, Dallas, Texas 75202, the principal sum of
ONE HUNDRED FORTY MILLION AND NO/100 DOLLARS
($140,000,000.00), or such lesser amount as has been loaned or
advanced by Payee to Maker hereunder or under the Loan Agreement,
in lawful money of the United States of America, together with
interest from the date hereof until maturity at the rates per annum
provided below.
1.
Definitions
. For
purposes of this Fifth Amended and Restated Revolving Line of
Credit Note (this “ Note ”), unless the context
otherwise requires, the following terms shall have the definitions
assigned to such terms as follows and capitalized terms used herein
but not defined herein shall have the meanings therefor specified
in the Loan Agreement:
“ Business Day ”
shall mean:
(a)
for all purposes
(other than as covered by clause (b) below) any day except
Saturday, Sunday or a day which in the United States is a legal
holiday or a day on which banking institutions are authorized or
required by law or other government action to close;
and
(b)
with respect to
all notices and determinations in connection with, and payments of
principal and interest on, a LIBOR Balance, any day which is a
Business Day described in clause (a) above and which is also a
day for trading by and between banks in the interbank eurodollar
market.
“ Consequential Loss
” shall mean, with respect to Maker’s payment, or
conversion to a different Interest Option, of all or any portion of
the then-outstanding principal amount of any LIBOR Balance on a day
other than the last day of the LIBOR Interest Period related
thereto, any loss, cost or expense incurred by Payee in
redepositing such principal amount, including the sum of
(a) the interest which, but for such payment, Payee would have
earned in respect of such principal amount so paid for the
remainder of LIBOR Interest Period applicable to such principal
amount, reduced, if Payee is able to redeposit such principal
amount so paid for the balance of such LIBOR Interest Period, by
the interest earned by Payee as a result of so redepositing such
principal amount, plus (b) any expense or penalty incurred by
Payee on redepositing such principal amount.
“ Contract Rate ”
shall mean a rate of interest based upon the LIBOR Base Rate or WFB
Base Rate in effect at any time pursuant to an Interest
Notice.
“ Dollars ” and
the sign “ $ ” shall mean lawful currency of the
United States of America.
1
“ Eurocurrency Reserve
Percentage ” shall mean, with respect to each LIBOR
Interest Period, the maximum reserve percentage (expressed as a
decimal) in effect on the first day of any LIBOR Interest Period,
as prescribed by the Board of Governors of the Federal Reserve
System (or any successor), for determining reserve requirements
applicable to “eurocurrency liabilities” pursuant to
Regulation D or any other then applicable regulation of the
Board of Governors (or any successor) which prescribes reserve
requirements applicable to “eurocurrency liabilities,”
as presently defined in Regulation D, or any eurocurrency
funding.
“ Event of Default
” shall mean an Event of Default as such term is defined in
the Loan Agreement.
“ Excess Interest
Amount ” shall mean, on any date, the amount by which
(a) the amount of all interest which would have accrued prior
to such date on the principal of this Note (had the applicable
Contract Rate at all times been in effect without limitation by the
Maximum Rate) exceeds (b) the aggregate amount of interest
actually received by Payee on this Note on or prior to such
date.
“ Federal Funds Effective
Rate ” means, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the immediately following Business Day by the Federal
Reserve Bank of New York or, if such rate is not published for any
Business Day, the average of the quotations for the day of the
requested advance received by Payee from three Federal funds
brokers of recognized standing selected by Payee.
“ Interest Notice
” shall mean the written notice given by Maker to Payee of
the Interest Options selected hereunder. Each Interest Notice
shall specify the Interest Option selected, the amount of the
unpaid principal balance of this Note to bear interest at the rate
selected and, if the LIBOR Base Rate is specified, the length of
the applicable LIBOR Interest Period.
“ Interest Option
” shall have the meaning assigned to such term in
paragraph 7 hereof.
“ Interest Payment Date
” shall mean (a) in the case of any WFB Base Rate
Balance, the maturity date of this Note, and (b) in the case
of any LIBOR Balance, the last day of the corresponding LIBOR
Interest Period with respect to such LIBOR Balance and the maturity
date of this Note.
“ LIBOR Balance ”
shall mean any principal balance of this Note which, pursuant to an
Interest Notice, bears interest at a rate based upon the LIBOR Base
Rate for the LIBOR Interest Period specified in such Interest
Notice.
“ LIBOR Base Rate
” shall mean, with respect to each LIBOR Interest Period, on
any day thereof the quotient of (a) the LIBOR Rate with
respect to such LIBOR Interest Period, divided by (b) the
remainder of 1.0 minus the Eurocurrency Reserve Percentage in
effect on such day.
2
“ LIBOR Interest Period
” shall mean, with respect to any LIBOR Balance, a period
commencing: (a) on any date upon which, pursuant to an
Interest Notice, the principal amount of such LIBOR Balance begins
to accrue interest at the LIBOR Base Rate, or (b) on the last
day of the immediately preceding LIBOR Interest Period in the case
of a rollover to a successive LIBOR Interest Period, and ending one
month, two months or three months thereafter as Maker shall elect
in accordance with the provisions hereof; provided, that:
(i) any LIBOR Interest Period which would otherwise end on a
day which is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in another
calendar month, in which case such LIBOR Interest Period shall end
on the next preceding Business Day; and (ii) any LIBOR
Interest Period which begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such LIBOR Interest Period)
shall, subject to clauses (iii) below and (i) above, end
on the last Business Day of a calendar month; and (iii) any
LIBOR Interest Period which would otherwise end after
November 18, 2009 shall end on November 18,
2009.
“ LIBOR Rate ”
shall mean, with respect to each LIBOR Interest Period, the rate of
interest determined by Payee to be the arithmetic average (rounded
upward, if necessary to the nearest 1/16th of 1%) of the per annum
rates of interest at which Dollar deposits with a maturity equal to
the proposed LIBOR Interest Period (and in an amount approximating
the LIBOR Balance) would be offered to Payee by major banks in the
interbank eurodollar market at approximately 8:00 a.m.
(Dallas, Texas time) on the Business Day immediately preceding the
first day of such LIBOR Interest Period.
“ Loan Agreement
” shall mean that certain Loan Agreement, dated as of
September 23, 2004, by and among Maker, Payee and the
subsidiaries and/or affiliates of Maker from time to time a party
thereto, as guarantors, as amended, restated, supplemented and/or
modified from time to time.
“ Maximum Rate ,”
as used herein, shall mean, with respect to the holder hereof, the
maximum non-usurious interest rate, if any, that at any time, or
from time to time, may be contracted for, taken, reserved, charged,
or received on the indebtedness evidenced by this Note under the
laws which are presently in effect of the United States and the
State of Texas applicable to such holder and such indebtedness or,
to the extent permitted by law, under such applicable laws of the
United States and the State of Texas which may hereafter be in
effect and which allow a higher maximum non-usurious interest rate
than applicable laws now allow. To the extent that any of the
optional interest rate ceilings provided in Chapter 303 of the
Texas Finance Code, as amended from time to time (as amended, the
“ Texas Finance Code ”), may be available for
application to any loan(s) or extension(s) of credit
under this Note for the purpose of determining the Maximum Rate
hereunder pursuant to the Texas Finance Code, the applicable
“monthly ceiling” (as such term is defined in Chapter
303 of the Texas Finance Code) from time to time in effect shall be
used to the extent that it is so available, and if such
“monthly ceiling” at any time is not so available then
the applicable “weekly ceiling” (as such term is
defined in Chapter 303 of the Texas Finance Code) from time to time
in effect shall be used to the extent that it is so
available.
“ Regulation D ”
shall mean Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect and shall include any
successor or other regulation relating to reserve requirements
applicable to member banks of the Federal Reserve
System.
“ Total Commitment
” shall mean $140,000,000.00.
3
“ WFB ” shall
mean Wells Fargo Bank, National Association, a national banking
association, and its successors and assigns.
“ WFB Base Rate ”
shall mean, on any date of determination, a variable rate of
interest per annum equal to the higher of either (a) the WFB
Prime Rate, or (b) the Federal Funds Effective Rate plus
one-half of one percent (0.50%).
“ WFB Base Rate Balance
” shall mean that portion of the principal balance of this
Note bearing interest at a rate based upon the WFB Base
Rate.
“ WFB Prime Rate
” shall mean the rate of interest most recently announced
within Payee at its principal office in San Francisco as its prime
rate and is a base rate for calculating interest on certain
loans. The rate announced by Payee as its prime rate may or
may not be the most favorable rate charged by Payee to its
customers. Each change in the WFB Prime Rate shall become effective
without prior notice to Maker automatically as of the opening of
business on the date such change is announced within
Payee.
2.
Manner of
Borrowing; Advance Requests . A request for an
advance under this Note shall be made, or shall be deemed to be
made, if Maker gives Payee notice of its intention to borrow, in
which notice Maker shall specify (a) the aggregate principal
amount of such advance and (b) the requested date of such
advance, which shall be a Business Day. Any such request for
an advance shall be accompanied by an Interest Notice and shall be
made (i) no later than 11:00 a.m. Dallas, Texas time at
least three (3) Business Days prior to the requested advance
date if the principal balance of such advance, pursuant to such
Interest Notice, is to bear interest at a rate based upon the LIBOR
Base Rate and (ii) no later than 11:00 a.m. Dallas, Texas
time on the requested advance date if the principal balance of such
advance, pursuant to such Interest Notice, is to bear interest at a
rate based upon the WFB Base Rate. Notwithstanding anything
herein to the contrary, Payee shall have the right (but not the
obligation) to permit or effectuate advances under this Note as a
part of its cash management services provided to Maker and Payee
shall have the right to refuse to accept a request for an advance
under this Note if at the date any such request is made or any such
advance is to be made there exists a default or an Event of Default
under this Note or the Loan Agreement. As an accommodation to
Maker, Payee may permit telephonic requests for loans and
electronic transmittal of instructions, authorizations, agreements
or reports to Payee by Maker. Unless Maker specifically
directs Payee in writing not to accept or act upon telephonic or
electronic communications from Maker, Payee shall have no liability
to Maker for any loss or damage suffered by Maker as a result of
Payee’s honoring of any requests, execution of any
instructions, authorizations or agreements or reliance on any
reports communicated to Payee telephonically or electronically and
purporting to have been sent to Payee by any individual from time
to time designated by Maker as an authorized officer and Payee
shall have no duty to verify the origin or authenticity of any such
communication.
3.
Payments of
Interest and Principal . Interest on the
unpaid principal balance of this Note shall be due and payable on
each Interest Payment Date as it accrues. The unpaid
principal balance of this Note shall be due and payable in full on
November 18, 2009.
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4.
Rates of
Interest . The unpaid principal
of the WFB Base Rate Balance shall bear interest at a rate per
annum which shall from day to day be equal to the lesser of
(a) the higher of either (i) the WFB Base Rate in effect
from day to day, plus one and one-half of one percent (1.50%)
or
(ii) three percent
(3.0%) ,
or (b) the Maximum Rate. The unpaid principal of each
LIBOR Balance shall bear interest at a rate per annum which
shall
