Exhibit 10.2
FOURTH AMENDED AND RESTATED
REVOLVING LINE OF CREDIT NOTE
September 19,
2008
Dallas,
Texas
$100,000,000.00
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 MILLION AND NO/100 DOLLARS ($100,000,000.00), 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 Fourth 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:
(i) for all purposes
(other than as covered by clause (ii) 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
(ii) 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 (i) 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 (i) 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
(ii) 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.
“ 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 (i) 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 (ii) 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 (i) in the case of any WFB Base Rate Balance, at the
maturity of this Note, and (ii) in the case of any LIBOR Balance,
the last day of the corresponding LIBOR Interest Period with
respect to such LIBOR Balance and at the maturity 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 (i) the LIBOR Rate with respect to such
LIBOR Interest Period, divided by (ii) the remainder of
1.0 minus the Eurocurrency Reserve Percentage in effect on such
day.
“ LIBOR Interest Period ”
shall mean, with respect to any LIBOR Balance, a period commencing:
(i) 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 (ii) 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: (A) 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 (B) 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 (C) below and
(A) above, end on the last Business Day of a calendar month; and
(C) any LIBOR Interest Period which would otherwise end after
November 19, 2008 shall end on November 19, 2008.
“ 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 $100,000,000.00.
“ 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 (i) the aggregate principal amount
of such advance and (ii) 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 or 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 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 19, 2008.
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 (i) the higher of either (a)
the WFB Base Rate in effect from day to day, minus one
percent (1.00%) or (b) three percent (3.0%) , or (ii)
t