EXHIBIT 4 6.
$300,000,000
CREDIT AGREEMENT
dated as of
December 4, 1992
among
CBI INDUSTRIES, INC.,
THE BANKS LISTED HEREIN
and
IBIS INVESTMENTS, INC.
as Bid Advance Agent
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
1.1 Defined Terms
1.2 Computation of Time Periods
1.3 Accounting Terms and Principles
1.4 Specified Subsidiaries
ARTICLE II THE SYNDICATED BORROWING FACILITY
2.1 The Syndicated Borrowing Facility
2.2 Making the Syndicated Advances
ARTICLE III THE COMPETITIVE BID BORROWING FACILITY
3.1 The Competitive Bid Borrowing Facility
3.2 Competitive Bid Quote Request
3.3 Invitation for Competitive Bid Quotes
3.4 Submission and Contents of Competitive Bid Quotes
3.5 Notice to the Company or a Specified Subsidiary, as
applicable
3.6 Acceptance and Notice by the Company or a Specified
Subsidiary, as applicable
3.7 Allocation by Bid Advance Agent
3.8 Notification of Acceptances to the Affected Banks
3.9 Funding of Competitive Bid Advances
ARTICLE IV GENERAL TERMS
4.1 Interest
Base Rate Advances
Adjusted CD Rate Advances
Eurodollar Rate Advances
Competitive Bid Advances
4.2 Interest on Overdue Principal
4.3 Interest Rate Determinations
4.4 Commitment Fees
4.5 Reduction of the Commitments
4.6 Optional Prepayments
4.7 The Notes
4.8 Repayment
4.9 Payments and Computations
4.10 Effect of Notice of Borrowing
4.11 Illegality; Interest Rate Inadequate or Unfair
4.12 Increased Costs
4.13 Performance of Banks' Obligations
4.14 Taxes
4.15 Effect of Failure to Borrow or Fund
4.16 Termination and Prepayment with Respect to Any Bank
4.17 Extensions of the Termination Date
ARTICLE V CONDITIONS TO BORROWING
5.1 All Borrowings
5.2 Additional Conditions to First Borrowing by the Company
5.3 All Borrowings by Specified Subsidiaries
5.4 Additional Conditions to First Borrowing by Any Specified
Subsidiary
5.5 First Borrowing
5.6 All Borrowings Prior to Termination of the 1988 Credit
Agreement
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.1 Corporate Existence; Subsidiaries
6.2 Corporate and Governmental Authorization; No Contravention
6.3 Binding Effect
6.4 Financial Information
6.5 Litigation
6.6 Taxes
6.7 ERISA
6.8 Regulation U
6.9 Not an Investment Company
6.10 No Default
6.11 Compliance with Environmental Laws
ARTICLE VII COVENANTS
7.1 Corporate Existence, etc.
7.2 Insurance
7.3 Taxes, Claims for Labor and Materials, Compliance with Laws
7.4 Maintenance, Etc
7.5 Nature of Business
7.6 Current Ratio
7.7 Consolidated Tangible Net Worth
7.8 Limitations on Debt
7.9 Limitation on Liens
7.10 Dividends, Stock Purchases
7.11 Sale and Leasebacks
7.12 Mergers, Consolidations and Sales of Assets
7.13 Guaranties
7.14 Investments
7.15 Transactions with Affiliates
7.16 Plan Termination
7.17 Reports and Rights of Inspection
7.18 Subsidiary Guaranty
ARTICLE VIII EVENTS OF DEFAULT
8.1 Events of Default
ARTICLE IX THE BID ADVANCE AGENT
9.1 Initial Bid Advance Agent
9.2 Appointment; Delegation of Duties
9.3 Exculpatory Provisions
9.4 Reliance by Bid Advance Agent
9.5 Non-Reliance on Bid Advance Agent and Other Banks
9.6 Indemnification
9.7 Agent in Its Individual Capacity
9.8 Successor Bid Advance Agent
ARTICLE X MISCELLANEOUS
10.1 Amendments
10.2 Notices, etc.
10.3 No Waiver; Cumulative Remedies
10.4 Costs and Expenses; Indemnification
10.5 Right of Set-Off
10.6 Sharing of Payments, etc.
10.7 Binding Effect; Successors and Assigns
10.8 Contingent Appointment of Agent
10.9 Participation in Unfriendly Takeovers
10.10 Governing Law
10.11 Execution in Counterparts
10.12 Limited Role of Banks
10.13 Integration
10.14 Severability
ARTICLE XI GUARANTY
11.1 Guaranty of Payment
11.2 The Banks' Costs and Expenses
11.3 Nature of Guaranty: Continuing, Absolute, and Unconditional
11.4 Certain Rights and Obligations
11.5 Continuing Guaranty
11.6 Guaranty of Performance
EXHIBITS AND SCHEDULES
Exhibit 1.4(a) Form of Specified Subsidiary Agreement
Exhibit 2.2 Form of Notice of Syndicated Borrowing
Exhibit 3.2 Form of Competitive Bid Quote Request
Exhibit 3.4 Form of Competitive Bid Quote
Exhibit 3.6 Form of Notice of Copetitive Bid Borrowing
Exhibit 4.7(a) Form of Syndicated Note
Exhibit 4.7(b) Form of Competitive Bid Note
Exhibit 4.14(a) Form of Tax Letter
Exhibit 4.14(b) Form of Tax Letter
Exhibit 4.16(f) Form of Successor Bank Agreement
Exhibit 5.2(e) Form of Opinion of Company's Counsel
Exhibit 5.2(f) Form of Opinion of Banks' Special Counsel
Exhibit 5.4(b)(1) Syndicated Note
Exhibit 5.4(b)(2) Competitive Bid Note
Exhibit 5.4(h) Form of Opinion of Applicable Subsidiary's Counsel
Exhibit 5.5 Form of Subsidiary Guarantee
Exhibit 7.18 List of Subsidiaries for Subsidiary Guaranty
Exhibit 10.8 Contingency Agent Provisions
Schedule 6.1(b) Subsidiaries
Schedule 7.8 Funded Debt
Schedule 7.12(c) Investment Assets
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of December 4, 1992, among CBI INDUSTRIES, INC.,
a Delaware corporation (the "Company"), each Specified Subsidiary (as
hereinafter defined) that becomes a party to this Agreement pursuant to
Section 1.4, the financial institutions listed on the signature pages of this
Agreement under the heading "Banks" (such financial institutions and any
successor financial institution that becomes a party to this Agreement
pursuant to Section 4.16 or 10.7, hereinafter referred to as the "Banks"), and
IBIS INVESTMENTS, INC., as initial bid advance agent hereunder (such bid
advance agent and any successor bid advance agent appointed pursuant to
Section 9.8, hereinafter referred to as the "Bid Advance Agent").
The Company, the Banks, and the Bid Advance Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Absolute Rate" means, with respect to a Competitive Bid Advance offered
or made by a given Bank for the relevant Interest Period, the rate of interest
per annum (rounded to the nearest 1/100 of 1%) relating to such Competitive
Bid Advance.
"Acquiring Person" means any person or group (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder as in effect on the date of this Agreement
(the "Exchange Act")) who or which, together with all affiliates and
associates (as defined in Rule 12b-2 under the Exchange Act), becomes, by way
of any transaction not approved by resolution of a majority of Continuing
Directors of the Company or the applicable Parent of the Company, the
beneficial owner of the shares of the Company or such Parent having more than
50% of the total number of votes that may be cast for the election of
directors of the Company or such Parent.
"Adjusted CD Rate" means, for the Interest Period for each Adjusted CD
Rate Advance made by each Bank comprising part of the same Syndicated
Borrowing, an interest rate per annum equal to the sum of: (a) the rate per
annum obtained by dividing (i) the rate of interest determined by the Company
to be the average (rounded upward to the nearest whole multiple of 1/100 of 1%
per annum, if such average is not such a multiple) of the consensus bid rate
determined by each of the Reference Banks for the bid rates per annum, at
10:00 a.m. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period, of two or more New York certificate of
deposit dealers of recognized standing selected by such Reference Bank for the
purchase at face value of certificates of deposit of such Reference Bank in an
amount approximately equal to the principal amount of such Reference Bank's
Adjusted CD Rate Advance comprising part of such Syndicated Borrowing during
such Interest Period and with a maturity approximately equal to such Interest
Period, by (ii) a percentage equal to 100% minus the Adjusted CD Rate Reserve
Percentage for such Interest Period, plus (b) the Assessment Rate for such
Interest Period. The Adjusted CD Rate for the Interest Period for each
Adjusted CD Rate Advance comprising part of the same Syndicated Borrowing
shall be determined by the Company on the basis of applicable rates furnished
to and received by the Company from the Reference Banks on the first day of
such Interest Period, subject, however, to the provisions of Section 4.3.
"Adjusted CD Rate Advance" means an Advance made or to be made by a Bank
(i) pursuant to Section 2.1 as an Adjusted CD Rate Advance in accordance with
the applicable Notice of Syndicated Borrowing or (ii) pursuant to Section 4.11
as an Adjusted CD Rate Advance in substitution for a Fixed Rate Advance. Each
Adjusted CD Rate Advance shall bear interest as provided in Section 4.1(b).
"Adjusted CD Rate Reserve Percentage" means, for the Interest Period for
each Adjusted CD Rate Advance comprising part of the same Syndicated
Borrowing, the percentage which is in effect on the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System with deposits exceeding five billion dollars with
respect to liabilities consisting of or including (among other liabilities)
U.S. dollar non-personal time deposits of $100,000 or more in the United
States and with a maturity equal to such Interest Period.
"Adjusted Operating Earnings" means the gross revenues attributable to any
asset less all operating expenses attributable to such asset, all determined
in accordance with generally accepted accounting principles; provided that
general corporate overhead shall not be included as an operating expense.
"Advance" means a Syndicated Advance and/or a Competitive Bid Advance, as
the context requires, including Permitted Advances.
"Affiliate" means any Person (other than a Restricted Subsidiary) (i)
which directly or indirectly through one or more intermediaries controls, or
is controlled by, or is under common control with, the Company, (ii) which
beneficially owns or holds 5% or more of any class of the Voting Stock of the
Company, or (iii) 5% or more of the Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Company or a Subsidiary. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of Voting Stock, by contract or otherwise. None of the Banks nor
any of their respective Affiliates shall, for purposes of this Agreement, be
deemed to be Affiliates of the Company or any of its Subsidiaries.
"Agreement" means this Credit Agreement, as amended, supplemented, or
modified from time to time.
"Applicable CD Margin" means for Adjusted CD Rate Advances the rate per
annum determined in accordance with the following schedule:
Aggregate Principal Amount of
Outstanding Syndicated Advances
more than $100
million but not
Company $ 100 million more than $200 more than $200
Credit Rating or less million million
_____________ _____________ _______________ _______________
Baal (Moody's) and
BBB+ (S&P) or better
*[P-1 (Moody's) and A-2
(S&P) or P-2 (Moody's)
and A-1 (S&P)
or better] 0.5625% 0.625% 0.6875%
Below either Baal
(Moody's) or BBB+
(S&P) but not below
either Baa2 (Moody's)
or BBB (S&P) *[P-2
(Moody's) and
A-2 (S&P)] 0.625% 0.6875% 0.75%
Below either Baa2
(Moody's) or BBB (S&P)
but not below both
Baa3 (Moody's) and BBB-
(S&P) *[P-3 (Moody's)
and A-2 or A-3 (S&P)
or A-3 (S&P) and
P-2 or
P-3 (Moody's)] 0.6875% 0.75% 0.8125%
Below Baa3 (Moody's)
but not below BBB- (S&P)
or below BBB- (S&P)
but not below Baa3
(Moody's) *[P-3 (Moody's)
and "no rating" (S&P)
or "no rating" (Moody's)
and A-3 (S&P)] 0.75% 0.8125% 0.875%
Below both Baa3
(Moody's) and BBB-
(S&P) *["no rating"
(Moody's) and
"no rating" (S&P)] 0.8125% 0.875% 0.9375%
________________________
*Commercial Paper Credit Ratings to be utilized under the circumstances
described in subparagraph (d) under the definition of "Credit Ratings."
"Applicable Eurodollar Margin" means for Eurodollar Rate Advances the rate
per annum determined in accordance with the following schedule:
Aggregate Principal Amount of
Outstanding Syndicated Advances
more than $100
million but not
Company $ 100 million more than $200 more than $200
Credit Rating or less million million
_____________ _____________ _______________ _______________
Baal (Moody's) and
BBB+ (S&P) or better
*[P-1 (Moody's) and A-2
(S&P) or P-2 (Moody's)
and A-1 (S&P)
or better] 0.4375% 0.5% 0.5625%
Below either Baal
(Moody's) or BBB+ (S&P)
but not below either
Baa2 (Moody's) or BBB
(S&P) *[P-2 (Moody's)
and A-2 (S&P)] 0.5% 0.5625% 0.625%
Below either Baa2
(Moody's) or BBB (S&P)
but not below both
Baa3 (Moody's) and
BBB- (S&P) *[P-3 (Moody's)
and A-2 or A-3 (S&P)
or A-3 (S&P) and P-2
or P-3 (Moody's)] 0.5625% 0.625% 0.6875%
Below Baa3 (Moody's)
but not below BBB-
(S&P) or below BBB-
(S&P) but not below
Baa3 (Moody's) *[P-3
(Moody's) and "no rating"
(S&P) or "no rating"
(Moody's) and
A-3 (S&P)] 0.625% 0.6875% 0.75%
Below both Baa3
(Moody's) and BBB-
(S&P) *["no rating"
(Moody's) and
"no rating" (S&P)] 0.6875% 0.75% 0.8125%
________________________
*Commercial Paper Credit Ratings to be utilized under the circumstances
described in subparagraph (d) under the definition of "Credit Ratings."
"Applicable Lending Office" means, with respect to each Bank, such Bank's
Domestic Lending Office in the case of a Base Rate Advance, such Bank's CD
Lending Office in the case of an Adjusted CD Rate Advance, such Bank's
Eurodollar Lending Office in the case of a Eurodollar Rate Advance, and such
Bank's Competitive Bid Lending Office in the case of a Competitive Bid
Advance.
"Assessment Rate" means, for the Interest Period for each Adjusted CD Rate
Advance comprising part of the same Syndicated Borrowing, the net annual
assessment rate determined by The First National Bank of Chicago and furnished
to the Company and each Bank on the first day of such Interest Period to be
the then current annual assessment payable by The First National Bank of
Chicago to the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of The First National Bank of Chicago in the
United States.
"Available Commitment" means, with respect to any Bank at any time, an
amount equal to (i) such Bank's Commitment at such time minus (ii) an amount
equal to such Bank's ratable share, determined on the basis that such Bank's
Commitment bears to all Commitments at such time, of the aggregate principal
amount of all Competitive Bid Advances outstanding at such time.
"Bank Cancellation Date" has the meaning assigned to that term in Section
4.12(b).
"Bank Termination Date" has the meaning assigned to that term in Section
4.16.
"Base Rate" means a fluctuating interest rate per annum as shall be in
effect from time to time, which rate per annum shall at all times be equal to
the higher of (i) the rate of interest announced publicly by The First
National Bank of Chicago, in Chicago, Illinois, from time to time, as its
corporate base rate, and (ii) the Federal Funds Rate plus 0.5%. The Base Rate
determined pursuant to (i) above is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. Each of
the Banks may make commercial loans or other loans at rates of interest at,
above, or below such Base Rate.
"Base Rate Advance" means an Advance made or to be made by a Bank (i)
pursuant to Section 2.1 as a Base Rate Advance in accordance with the
applicable Notice of Syndicated Borrowing or (ii) pursuant to Section 4.11 as
a Base Rate Advance in substitution for a Fixed Rate Advance. Each Base Rate
Advance shall bear interest as provided in Section 4.1(a).
"Borrowing" means a Syndicated Borrowing and/or a Competitive Bid
Borrowing, as the context requires.
"Borrowing Date" means a date on which an Advance is, or is proposed to be,
made hereunder.
"Business Day" means (i) with respect to borrowing, payment, or rate
selection of Eurodollar Rate Advances, a day of the year on which commercial
banks are not required or authorized to close in New York City or Chicago and
on which commercial banks are open for international business (including
dealings in dollar deposits) in London, and (ii) with respect to borrowing,
payment, or rate selection of Base Rate Advances, Adjusted CD Rate Advances,
and Competitive Bid Advances and any other matters contemplated hereby, a day
of the year on which commercial banks are not required or authorized to close
in New York City or Chicago.
"Cancellation Notice" has the meaning assigned to that term in Section
4.12(b).
"Cancelling Bank" has the meaning assigned to that term in Section 4.12(b).
"Capitalized Lease" means any lease the obligation for Rentals with respect
to which is required to be capitalized on a balance sheet of the lessee in
accordance with generally accepted accounting principles.
"Capitalized Rentals" means as of the date of any determination the amount
at which the aggregate Rentals due and to become due under all Capitalized
Leases under which the Company or any Restricted Subsidiary is a lessee would
be reflected as a liability on a consolidated balance sheet of the Company and
its Restricted Subsidiaries.
"CD Lending Office" means, with respect to each Bank, the office of such
Bank specified as its "CD Lending Office" under its name on the signature
pages hereof (or, if no such office is specified, its Domestic Lending Office)
or such other office of such Bank as such Bank may from time to time specify
to the Company.
"Change of Control" means any event by which (i) an Acquiring Person has
become such, or (ii) Continuing Directors cease to comprise a majority of the
members of the board of directors of the Company or the applicable Parent of
the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, with respect to any Bank at any time, the amount
indicated opposite such Bank's name on the signature pages hereof (or, if
applicable, in any documentation executed pursuant to Section 4.16 or 10.7),
as such amount may have been reduced as of or prior to such time pursuant to
Section 4.5.
"Commitment Fee Base" means, with respect to any Bank at any time an amount
equal to (i) such Bank's Commitment at such time minus (ii) the aggregate
principal amount of the Syndicated Advances of such Bank outstanding at such
time minus (iii) an amount equal to 50% of such Bank's ratable share,
determined on the basis that such Bank's Commitment bears to all Commitments
at such time, of the aggregate principal amount of all Competitive Bid
Advances outstanding at such time.
"Competitive Bid Advance" means an Advance made or to be made by a Bank
pursuant to Article III as a Competitive Bid Advance in accordance with the
applicable Notice of Competitive Bid Borrowing. Each Competitive Bid Advance
shall bear interest at an Absolute Rate as provided in Section 4.1(d).
"Competitive Bid Borrowing" means a borrowing consisting of Competitive Bid
Advances (i) made on the same day by the Banks whose Competitive Bid Quotes in
connection with a Competitive Bid Quote Request shall have been accepted by
the Company or a Specified Subsidiary, as applicable, in accordance with
Section 3.6 and (ii) having the same Interest Period.
"Competitive Bid Borrowing Facility" has the meaning assigned to that term
in Section 3.1.
"Competitive Bid Lending Office" means, with respect to each Bank, the
office of such Bank specified as its "Competitive Bid Lending Office" under
its name on the signature pages hereof (or, if no such office is specified,
its Domestic Lending Office) or such other office of such Bank as such Bank
may from time to time specify to the Company.
"Competitive Bid Note" has the meaning assigned to that term in Section
4.7(b).
"Competitive Bid Quote" means a Competitive Bid Quote substantially in the
form of Exhibit 3.4 hereto, completed by a Bank and delivered by such Bank to
the Bid Advance Agent in accordance with Section 3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit 3.2 hereto, completed by the Company or a
Specified Subsidiary, as applicable, in accordance with Section 3.2.
"Consolidated", when used as a prefix to Debt, Current Debt, or Funded
Debt, means the aggregate amount of such Debt, Current Debt, or Funded Debt of
the Company and its Restricted Subsidiaries on a consolidated basis
eliminating intercompany items.
"Consolidated Adjusted Operating Earnings" means the consolidated gross
revenues of the Company and its Restricted Subsidiaries, less all operating
expenses of the Company and its Restricted Subsidiaries, all determined on a
consolidated basis in accordance with generally accepted accounting
principles; provided, that general corporate overhead shall not be included as
an operating expense.
"Consolidated Current Assets" and "Consolidated Current Liabilities" means
such assets and liabilities of the Company and its Restricted Subsidiaries on
a consolidated basis as shall be determined in accordance with generally
accepted accounting principles to constitute current assets and current
liabilities, respectively, provided that for purposes of determining
Consolidated Current Assets there shall be excluded the amount, if any, by
which earned revenues exceed related progress billings to the extent such item
constitutes an asset on the most recent balance sheet of the Company, and for
purposes of determining Consolidated Current Liabilities, there shall be
excluded the amount, if any, by which progress billings exceed related earned
revenues to the extent that such item constitutes a liability on the most
recent balance sheet of the Company and there shall be included all Guaranties
in respect of Current Debt.
"Consolidated Net Income" for any period means the gross revenues of the
Company and its Restricted Subsidiaries for such period less all expenses and
other proper charges to such gross revenues (including taxes on income),
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied and after eliminating earnings or
losses attributable to outstanding Minority Interests, but excluding in any
event:
(a) any gains or losses on the sale or other disposition of investments
or fixed or capital assets, and any taxes on such excluded gains and any tax
deductions or credits on account of any such excluded losses, provided that
for purposes of computing Consolidated Net Income, gains which represent
recoveries of losses on assets written down after June 30, 1992, shall be
included to the extent of such losses, and losses on assets which have been
written up after June 30, 1992, shall be included to the extent of such write-
ups.
(b) the cost incurred in connection with the maintenance of any life
insurance policy and the proceeds of any life insurance policy;
(c) net earnings and losses of any Restricted Subsidiary accrued prior to
the date it became a Restricted Subsidiary;
(d) net earnings and losses of any corporation (other than a Restricted
Subsidiary), substantially all the assets of which have been acquired in any
manner, realized by such other corporation prior to the date of such
acquisition;
(e) net earnings and losses of any corporation (other than a Restricted
Subsidiary) with which the Company or a Restricted Subsidiary shall have
consolidated or which shall have merged into or with the Company or a
Restricted Subsidiary prior to the date of such consolidation or merger;
(f) net earnings of any business entity (other than a Restricted
Subsidiary) in which the Company or any Restricted Subsidiary has an ownership
interest unless such net earnings shall have actually been received by the
Company or such Subsidiary in the form of cash distributions;
(g) any portion of the net earnings of any Restricted Subsidiary which
for any reason is unavailable for payment of dividends by agreement or by law
to the Company or any other Restricted Subsidiary;
(h) any deferred or other credit representing any excess of the equity in
any Subsidiary at the date of acquisition thereof over the amount invested in
such Subsidiary;
(i) any gain arising from the acquisition of any Securities of the
Company or any Restricted Subsidiary;
(j) any reversal of contingency reserves, except to the extent that
provision for such contingency reserve shall have been made from income
arising during such period or to the extent that such reversal shall be offset
by a contemporaneous increase in a contingency reserve existing as of June 30,
1992;
(k) any gain arising from the termination of any pension plan after
January 1, 1988; and
(l) the product of (a) $2,175,000 times (b) the number of calendar
quarters which have elapsed from July 1, 1992, through the date of
measurement, but not to exceed 18 calendar quarters.
"Consolidated Tangible Assets" means as of the date of any determination
thereof the total amount of all assets of the Company and its Restricted
Subsidiaries (less depreciation, depletion and other properly deductible
valuation reserves) after deducting good will, patents, trade names, trade
marks, copyrights, franchises, experimental expense, organization expense,
unamortized debt discount and expense, deferred assets other than prepaid
insurance and prepaid taxes, the excess of cost of shares acquired over book
value of related assets and such other assets as are properly classified as
"intangible assets" in accordance with generally accepted accounting
principles.
"Consolidated Tangible Net Worth" means as of the date of any
determination thereof (A) the sum of (x) the aggregate amount of the capital
stock (less treasury stock), surplus and retained earnings of the Company and
its Restricted Subsidiaries, and (y) cumulative foreign currency translation
adjustments less (B) the sum of (i) good will, patents, trade names, trade
marks, copyrights, franchises, experimental expense, organization expense,
unamortized debt discount and expense, deferred assets other than prepaid
insurance and prepaid taxes, the excess of cost of shares acquired over book
value of the related assets and such other assets as are properly classified
as "intangible assets" in accordance with generally accepted accounting
principles and (ii) Minority Interests to the extent included in the capital
stock accounts of the Company, all as determined on a consolidated basis by
the Company and its Restricted Subsidiaries, plus (C) the amount of
$31,500,000 less (D) the product of (a) $1,750,000 times (b) the number of
calendar quarters which have elapsed from July 1, 1992, through the date of
measurement, but not to exceed 18 calendar quarters.
"Continuing Director" means any member of a board of directors ("Board"),
while such Person is a member of such Board, who is not an Acquiring Person,
or an affiliate or associate of an Acquiring Person or a representative of an
Acquiring Person or of any such affiliate or associate and who (i) was a
member of such Board prior to the date of this Agreement, or (ii)
subsequently becomes a member of such Board and whose nomination for election
or election to such Board is recommended or approved by resolution of a
majority of the Continuing Directors or who is included as a nominee in a
proxy statement of the Company or the applicable Parent distributed when a
majority of such Board consists of Continuing Directors.
"Controlled Investment" means any Investment in any Person (i) of whom
the Company is the beneficial owner of 20% or more of the Voting Stock (or, in
the case of a Person which is not a corporation, 20% or more of the equity
interest) and of whom the Company has working control; and (ii) of whom the
Company is actively directing the management or has the right to do so.
"Credit Ratings" means the publicly announced ratings by Moody's and S&P
on the Company's long-term unsecured indebtedness. For purposes of
determining the applicable commitment fee rate pursuant to Section 4.4, the
Applicable CD Margin and the Applicable Eurodollar Margin:
(a) Any change in a Credit Rating shall be deemed to become effective on
the date of public announcement thereof and shall remain in effect until the
date of public announcement that such rating shall no longer be in effect.
(b) If, during any period, either Moody's or S&P shall not have publicly
announced a Credit Rating with respect to the Company's outstanding long-term
unsecured indebtedness, the Credit Rating announced by the other rating agency
with respect thereto shall be used.
(c) If, during any period, neither Moody's nor S&P shall have publicly
announced a Credit Rating with respect to the Company's outstanding long-term
unsecured indebtedness, the Credit Rating shall be deemed to be below Baa3
(Moody's) and BBB- (S&P), respectively, during such period; provided that the
Company may, at any time, substitute Duff & Phelps or another nationally
recognized rating agency acceptable to the Majority Banks for either Moody's
or S&P. Any Credit Rating assigned by a substitute credit agency, prior to
the determination of the commitment fee for the period during which such
Credit Rating shall be in effect, shall be converted to the nationally
recognized equivalent thereof under the rating system employed by Moody's or
S&P, as applicable.
(d) If, during any period, the Company has no outstanding long term
unsecured indebtedness rated by either Moody's or S&P, then (i) if the Company
has obtained an indicative rating for long-term unsecured indebtedness from
Moody's and/or S&P, "Credit Ratings" shall mean such indicative rating(s), or
(ii) if the Company has not obtained such an indicative rating but has
commercial paper outstanding, "Credit Ratings" shall mean the publicly
announced ratings, including a "no rating" designation, by Moody's and S&P
relating to the Company's outstanding commercial paper (the "Commercial Paper
Credit Ratings").
(e) If, during any period, the Company has no outstanding commercial
paper and has no outstanding long term unsecured indebtedness that is rated by
either Moody's or S&P (or by a substitute agency as provided in (c) above) and
has no indicative rating for long-term unsecured indebtedness, the Company and
the Banks agree to enter into negotiations promptly thereafter in good faith
with a view toward amending this Agreement to provide for an alternate
mechanism for determining the Applicable CD Margin, Applicable Eurodollar
Margin, and the commitment fee rate pursuant to Section 4.4 so as to achieve,
as nearly as possible, the same economic basis for determining such Applicable
CD Margin, Applicable Eurodollar Margin, and commitment fee rate as exists on
the date of this Agreement (it being understood that (i) such negotiations
shall be completed within 120 days and (ii) in the absence of an amendment to
this Agreement providing such an alternative mechanism, the Applicable CD
Margin, Applicable Eurodollar Margin and commitment fee rate shall be
calculated as if the Credit Rating were Ba1 (Moody's) and BB+ (S&P)).
(f) If, during any period, the Company has no outstanding Funded Debt,
"Credit Ratings" shall mean Aa (Moody's) and AA (S&P).
"Current Debt" of any Person means, as of the date of any determination
thereof (i) all Indebtedness of such Person for money borrowed other than
Funded Debt and (ii) Guaranties of Current Debt of others.
"Debt" of any Person means all Funded Debt and all Current Debt of such
Person as of the date of any determination thereof.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Lending Office" means, with respect to each Bank, the office of
such Bank specified as its "Domestic Lending Office" under its name on the
signature pages hereof or such other office of such Bank as such Bank may from
time to time specify to the Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESOP" means the CBI Salaried Employee Stock Ownership Plan (1987)
effective October 20, 1987, as amended from time to time.
"ESOP Loan" means the loan in the aggregate principal amount of
$125,000,000 made to LaSalle National Trust, N.A., as Trustee, pursuant to the
Note Agreements dated September 1, 1989, among the Trustee, Aetna Life
Insurance Company, Principal Mutual Life Insurance Company, Connecticut Mutual
Life Insurance Company, New York Life Insurance Company, and New York Life and
Annuity Corporation.
"Eurodollar Lending Office" means, with respect to each Bank, the office
of such Bank specified as its "Eurodollar Lending Office" under its name on
the signature pages hereof (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Bank as such Bank may from time
to time specify to the Company.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Advance comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (i) the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such average
is not such a multiple) of the rates per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference Banks in
London, England to other leading banks in the London interbank market where
the foreign currency and exchange operations of such Eurodollar Lending Office
are customarily conducted at or about 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period for a period approximately
equal to such Interest Period and in an amount approximately equal to the
principal amount of such Reference Bank's Eurodollar Rate Advance comprising
part of such Borrowing by (ii) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. The Eurodollar Rate for the
Interest Period for each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Company on the basis of applicable rates
furnished to and received by the Company from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however, to the
provisions of Section 4.3.
"Eurodollar Rate Advance" means an Advance made or to be made by a Bank
(i) pursuant to Section 2.1 as a Eurodollar Rate Advance in accordance with
the applicable Notice of Syndicated Borrowing or (ii) pursuant to Section 4.11
as a Eurodollar Rate Advance in substitution for a Fixed Rate Advance. Each
Eurodollar Rate Advance shall bear interest as provided in Section 4.1(c).
"Eurodollar Rate Reserve Percentage" means the reserve percentage
applicable on the first day of an Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental, or other marginal reserve
requirements and all reserves required to be maintained against "Eurocurrency
liabilities" as specified in Regulation D promulgated by such Board of
Governors) applicable to any Bank which is a member of the Federal Reserve
System with respect to liabilities or assets consisting of or including
Eurocurrency funding or liabilities having a term equal to such Interest
Period.
"Events of Default" has the meaning assigned to that term in Section 8.1.
"Federal Funds Rate" means on any one day the weighted average of the
rate on overnight Federal funds transactions with members of the Federal
Reserve System only arranged by Federal funds brokers as published as of such
day by the Federal Reserve Bank of New York, or if not so published, the rate
then used by money center banks in extending overnight loans to other money
center banks. The Federal Funds Rate for any day which is not a Business Day
shall be the Federal Funds Rate for the immediately preceding Business Day.
"First Borrowing" means the initial Borrowing made by the Company or a
Specified Subsidiary, as applicable, hereunder.
"Fixed Rate Advances" means Eurodollar Rate Advances, Adjusted CD Rate
Advances, or Competitive Bid Advances or any combination of the foregoing.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary other
than a U.S. Restricted Subsidiary.
"Funded Debt" of any Person means (i) all Indebtedness for borrowed money
or which has been incurred in connection with the acquisition of assets in
each case having a final maturity of more than one year from the date of
determination thereof (or which is renewable or extendible at the option of
the obligor for a period or periods more than one year from the date of
determination), excluding all payments in respect thereof that are required to
be made within one year from the date of any determination of Funded Debt,
whether or not included in Consolidated Current Liabilities, (ii) all
Capitalized Rentals, (iii) all Guaranties of Funded Debt of others, and (iv)
all commercial paper of the Company regardless of whether such commercial
paper shall mature within one year from the date of origin.
"Governmental Authority" means any Federal, state, local, foreign, or
other governmental or administrative body, instrumentality, department, or
agency or any court, tribunal, administrative hearing body, arbitration panel
or commission.
"Guaranteed Indebtedness" has the meaning assigned to that term in
Section 11.1.
"Guaranties" by any Person means all obligations (other than endorsements
in the ordinary course of business of negotiable instruments for deposit or
collection) of such Person guaranteeing, or in effect guaranteeing, any
Indebtedness, dividend, or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person; (i) to purchase such Indebtedness or obligation or
any property or assets constituting security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of such Indebtedness or
obligation, (y) to maintain working capital or other balance sheet condition
or otherwise to advance or make available funds for the purchase or payment of
such Indebtedness or obligation, or (iii) to lease property or to purchase
Securities or other property or services primarily for the purpose of assuring
the owner of such Indebtedness or obligation of the ability of the primary
obligor to make payment of such Indebtedness or obligation, or (iv) otherwise
to assure the owner of such Indebtedness or obligation against loss in respect
thereof. For the purposes of all computations made under this Agreement, a
Guaranty in respect to any Indebtedness for borrowed money shall be deemed to
be Indebtedness equal to the principal amount of such Indebtedness for
borrowed money which has been guaranteed, and a Guaranty in respect of any
other obligation or liability or any dividend shall be deemed to be
Indebtedness equal to the maximum aggregate amount of such obligation,
liability, or dividend.
"Indebtedness" of any Person means and includes all obligations of such
Person which in accordance with generally accepted accounting principles shall
be classified upon a balance sheet of such Person as liabilities of such
Person, and in any event shall include all (i) obligations of such Person for
borrowed money or which has been incurred in connection with the acquisition
of property or assets, (ii) obligations secured by any lien or other charge
upon property or assets owned by such Person, even though such Person has not
assumed or become liable for the payment of such obligations, (iii)
obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person,
notwithstanding the fact that the rights and remedies of the seller, lender,
or lessor under such agreement in the event of default are limited to
repossession or sale of property, and (iv) Capitalized Rentals under any
Capitalized Lease.
"Interest Period" means, for each Advance comprising part of the same
Borrowing, the period commencing on the date of such Advance and ending on the
last day of the period selected by the Company or a Specified Subsidiary, as
applicable, pursuant to the provisions below. The duration of each such
Interest Period shall be (i) in the case of an Adjusted CD Rate Advance, 30,
60, 90, or 180 days, (ii) in the case of a Base Rate Advance, a number of days
not to exceed 360 days, (iii) in the case of a Eurodollar Rate Advance, one,
two, three, or six months, and (iv) in the case of a Competitive Bid Advance,
a number of days not to exceed 360 days, in each case as the Company or a
Specified Subsidiary, as applicable, may select pursuant to Section 2.2 or 3.2
as applicable, provided, that:
(a) Except as provided in Sections 4.12(b) and 4.16(c), the duration of
any Interest Period which would otherwise end after the Termination Date with
respect to any particular Bank shall end on the Termination Date;
(b) Interest Periods commencing on the same day for Advances comprising
the same Borrowing shall be of the same duration;
(c) Whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, unless, in the case
of any Interest Period for a Eurodollar Rate Advance, such extension would
cause the last day of such Interest Period to occur in the next following
calendar month, in which case the last day of such Interest Period shall occur
on the next preceding Business Day; and
(d) If an Interest Period for a Eurodollar Rate Advance begins on the
last Business Day of a calendar month (or on a day in which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period), such Interest Period shall end on the last Business Day of a
calendar month.
"Investment" means any investment in or loans, advances, or extensions of
credit or acquisition, whether for cash or other consideration.
"Investment Assets" means the assets described in Schedule 7.12(c)
hereto.
"Liquid Carbonic, Inc.", a corporation organized under the laws of the
Province of Ontario, Canada.
"Majority Banks" means at any time Banks having at least 66 2/3% of the
then aggregate amount of the Commitments or, if the Commitments have been
terminated, Banks having at least 66 2/3% of the aggregate amount of all
outstanding Advances.
"Margin Stock" has the meaning assigned to that term under Regulation U
issued by the Board of Governors of the Federal Reserve System.
"Material Adverse Change" means an event, or series of events taken as a
whole, which has resulted in, or which reasonably could be expected to result
in, a reduction of 15% or more of the Consolidated Tangible Net Worth of the
Company, based on the then most recent audited annual financial statements of
the Company.
"Material Adverse Effect" means the result of a Material Adverse Change.
"Minority Interests" means any shares of stock of any class of a
Restricted Subsidiary (other than directors' qualifying shares as required by
law) that are not owned by the Company and/or one or more of its Restricted
Subsidiaries. Minority Interests shall be valued by valuing Minority
Interests constituting preferred stock at the voluntary or involuntary
liquidating value of such preferred stock, whichever is greater, and by
valuing Minority Interests constituting common stock at the book value of
capital and surplus applicable thereto adjusted, if necessary, to reflect any
changes from the book value of such common stock required by the foregoing
method of valuing Minority Interests in preferred stock.
"Moody's" means Moody's Investors Service, Inc.
"Notes" has the meaning assigned to that term in Section 4.7(b).
"Notice of Borrowing" means a Notice of Competitive Bid Borrowing and/or
a Notice of Syndicated Borrowing, as the context requires.
"Notice of Competitive Bid Borrowing" has the meaning assigned to that
term in Section 3.6.
"Notice of Syndicated Borrowing" has the meaning assigned to that term in
Section 2.2.
"Objecting Bank(s)" has the meaning assigned to that term in Section
4.17.
"Optional Plan Contribution" means all payments or contributions to the
ESOP other than contributions or payments to the ESOP for the purpose of (i)
payment of operating expenses of the ESOP, (ii) enabling the ESOP to pay
regularly scheduled installments of principal and interest on the ESOP Loan,
and (iii) enabling the ESOP to pay optional installments of principal and
interest on the ESOP Loan to the extent that such payments are applied to the
ESOP Loan.
"Parent" means any Control Affiliate directly or indirectly controlling
the Company. "Control Affiliate", when used with reference to the Company,
means any corporations, joint ventures, or other business enterprises directly
or indirectly controlling, controlled by, or under common control with the
Company. For purposes of this definition, "control" means ownership or power
to vote 50% or more of the Voting Stock, venture interests, or other
comparable participation in such business enterprises.
"Permitted Advance" means an Advance to a Specified Subsidiary in
accordance with the provisions of Section 1.4 hereof.
"Person" means an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Pro Rata Sharing Event" has the meaning assigned to that term in Section
10.6(d).
"Qualified Investments" mean (i) investments in commercial paper maturing
in 12 months or less from the date of issuance which, at the time of
acquisition by the Company or any Restricted Subsidiary, is accorded the
highest rating by S&P or Moody's; (ii) investments in direct obligations of
the United States of America, or any agency thereof the payment of which is
unconditionally guaranteed by the United States of America, maturing in 12
months or less from the date of acquisition thereof; and (iii) investments in
certificates of deposit maturing within one year from the date of origin,
issued by a bank or trust company organized under the laws of the United
States or any state thereof, having capital, surplus, and undivided profits
aggregating at least $250,000,000, and whose long term deposits are accorded
one of the two highest ratings by S&P or Moody's.
"Reference Banks" means The First National Bank of Chicago, Continental
Bank N.A., Bank of America National Trust and Savings Association, Royal Bank
of Canada, and The Northern Trust Company, and each successor financial
institution that shall be designated as a Reference Bank hereunder pursuant to
Section 4.3(c) or otherwise in accordance with this Agreement.
"Refunding Borrowing" means a Borrowing which, after application of the
proceeds thereof, results in no net increase in the aggregate outstanding
principal amount of Advances made by the Banks to the Company or to any
Specified Subsidiary. Notwithstanding the foregoing, any Borrowings
constituting Competitive Bid Advances or the proceeds of which are used to
repay any Competitive Bid Advances shall not constitute Refunding Borrowings.
"Rentals" means and includes all fixed rents (including as such all
payments which the lessee is obligated to make to the lessor on termination of
the lease or surrender of the property) payable by the Company or a Restricted
Subsidiary, as lessee or sublessee under a lease of real or personal property,
but shall be exclusive of any amounts required to be paid by the Company or a
Restricted Subsidiary (whether or not designated as rents or additional rents)
on account of maintenance, repairs, insurance, taxes, and similar charges.
Fixed rents under any so-called "percentage leases" shall be computed solely
on the basis of the minimum rents, if any, required to be paid by the lessee
regardless of sales volume or gross revenues.
"Restricted Investment" means any Investment in any Person (i) engaged in
a business substantially different from the nature of the business engaged in
by the Company and its Restricted Subsidiaries on the date of this Agreement;
(ii) whose senior unsecured Funded Debt (A) is rated below BBB- if rated by
S&P and Baa3 if rated by Moody's or (B) if not rated, would be rated below
BBB- by S&P and Baa3 by Moody's; and (iii) which is not a Controlled
Investment.
"Restricted Payments" has the meaning assigned to that term in Section
7.10.
"Restricted Subsidiary" means any Subsidiary of which more than 50% (by
number of votes) of the Voting Stock is owned by the Company and/or one or
more other Restricted Subsidiaries.
"S&P" means Standard & Poor's Corporation.
"Security" has the same meaning as in Section 2(1) of the Securities Act
of 1933, as amended.
"Significant Subsidiary" means any Restricted Subsidiary in which either
(i) the Company or one of its Restricted Subsidiaries has, or at the end of
the most recent or immediately preceding calendar year had, a shareholder's
investment of more than $5,000,000, or (ii) which, as of the most recently
completed fiscal year of the Company, contributes more than 5% of the
Consolidated Net Income of the Company.
"Special Notice" has the meaning assigned to that term in Section 4.16.
The term "subsidiary" means, as to any particular parent corporation, any
corporation of which more than 50% (by number of votes) of the Voting Stock
shall be owned by such parent corporation and/or one or more corporations
which are themselves subsidiaries of such parent corporation. The term
"Subsidiary" means a subsidiary of the Company.
"Specified Subsidiary" means a Subsidiary which is permitted to borrow
directly under the terms of this Agreement in accordance with the provisions
of Section 1.4 hereof.
"Specified Subsidiary Agreement" means an agreement in the form attached
hereto as Exhibit 1.4(a) pursuant to which each Specified Subsidiary shall
agree to be bound by the provisions of the Credit Agreement.
"Subsidiary Guaranty" has the meaning assigned to that term in Section
5.5.
"Successor Bank" has the meaning assigned to that term in Section 4.16.
"Syndicated Advance" means an advance by a Bank to the Company or a
Specified Subsidiary, as applicable, pursuant to Article II and refers to a
Base Rate Advance, an Adjusted CD Rate Advance, a Eurodollar Rate Advance, or
an advance in substitution therefor pursuant to Section 4.11.
"Syndicated Borrowing" means a borrowing consisting of Syndicated
Advances of the same Type made on the same day by the Banks. An Advance
substituted, pursuant to Section 4.11, for a Syndicated Advance made in
connection with any Syndicated Borrowing shall continue to comprise a part of
such Syndicated Borrowing with the same effect as if such substituted Advance
were an Advance of the Type requested in the applicable Notice of Syndicated
Borrowing.
"Syndicated Borrowing Facility" has the meaning assigned to that term in
Section 2.1.
"Syndicated Note" has the meaning assigned to that term in Section
4.7(a).
"Syndicated Reduction" means, with respect to any Bank at any time, the
temporary reduction in such Bank's Available Commitment existing at such time
as a result of the operation of clause (ii) of the definition of Available
Commitment, and, with respect to all Banks, the aggregate amount of such
reductions existing at such time.
"Taxes" has the meaning assigned to that term in Section 4.14(a).
"Terminated Bank" has the meaning assigned to that term in Section 4.16.
"Termination Date" means the earlier of (i) December 31, 1995, or such
later date as shall be determined pursuant to Section 4.17 with respect to
non-Objecting Banks and (ii) the termination of all of the Commitments
pursuant to Section 4.5 or Section 8.1.
"Termination Notice" has the meaning assigned to that term in Section
4.16.
"Total Capitalization" means as of the date of any determination thereof,
the sum of (i) Consolidated Tangible Net Worth and (ii) Consolidated Funded
Debt.
"Type" of Advance means (i) in the case of Syndicated Advances, a
Eurodollar Rate Advance, Base Rate Advance, or Adjusted CD Rate Advance and
(ii) a Competitive Bid Advance or any Type of Advance described in clause (i)
which shall, pursuant to Section 4.11, be substituted therefor.
"Unfunded Liability" means, in the case of a single employer pension
benefit plan which is covered by Title IV of ERISA, the amount, if any, by
which the present value of all vested benefits accrued to the date of
determination under such plan exceeds the fair market value of all assets of
such plan allocable to such benefits as of such date.
"U.S. Restricted Subsidiary" means any Restricted Subsidiary which is
organized under the laws of the United States or any state thereof.
"Voting Stock" means Securities of any class or classes the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
"Wholly-owned", when used in connection with any Subsidiary, means a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) and all Indebtedness for
borrowed money (other than Indebtedness of a Specified Subsidiary owed to the
Banks hereunder) shall be owned by the Company and/or one of more of its
Wholly-owned Subsidiaries.
"80% owned Restricted Subsidiary" means any Restricted Subsidiary of
which more than 80% (by number of votes) of the Voting Stock is owned by the
Company and/or one or more 80% owned Restricted Subsidiaries and, in the case
of any such 80% owned Restricted Subsidiary, not less than 80% of the Voting
Stock of any Restricted Subsidiary directly or indirectly controlling such
Restricted Subsidiaries shall be owned by the Company and one or more 80%
owned Restricted Subsidiaries.
"1988 Credit Agreement" means the Amended and Restated Credit Agreement
dated as of September 30, 1988, among the Company, the Banks signatory
thereto, and Citibank, N.A., as Bid Advance Agent.
1.2 Computation of Time Periods. In this Agreement, when computing
periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means
"to but excluding".
1.3 Accounting Terms and Principles. All accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and all financial statements required to be delivered hereunder shall be
prepared, in accordance with generally accepted accounting principles as in
effect from time to time, applied on a basis consistent (except for changes
concurred in by the Company's independent accountants or, in the case of the
financial statements required to be delivered pursuant to Section 7.17(a), as
determined by the Company to be required in accordance with then existing
generally accepted accounting principles) with the December 31, 1991, audited
consolidated financial statements of the Company and its consolidated
Subsidiaries. If any preparation of the financial statements referred to in
Section 7.17 hereafter occasioned by the promulgation of rules, regulations,
pronouncements, and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) results in a change in
the method of calculation of financial covenants, standards, or terms found in
Articles I or VII hereof, the parties hereto agree to enter into good faith
negotiations in order to amend such provisions so as to equitably reflect such
changes with the desired result that the criteria for evaluating the Company's
financial condition shall be the same after such changes as if such changes
had not been made. Specifically, the parties agree that the effect of any
change in Consolidated Tangible Net Worth or Consolidated Net Income arising
from the adoption by the Company of Financial Accounting Standard 106 and/or
109 shall be reflected as adjustments to the definitions of Consolidated
Tangible Net Worth and Consolidated Net Income, as appropriate, except to the
extent that such adjustments exceed $100,000,000, and that the determination
by the Company of the amount of these adjustments, as communicated in writing
by the Company to the Banks, shall be binding, absent manifest error.
1.4 Specified Subsidiaries. The Company may from time to time designate
as many as 10 Subsidiaries as Specified Subsidiaries. Such designated
Specified Subsidiaries, if approved by the Banks in accordance with the
provisions of this Section 1.4 and upon the satisfaction of the conditions to
borrowing set forth in Sections 5.3 and 5.4 hereof, may borrow directly from
the Banks under the terms of this Agreement on the same basis and under the
same conditions as the Company.
(a) The designation of a Specified Subsidiary shall be made by written
notice from the Company to each Bank designating the proposed Subsidiary, the
maximum aggregate amount of Permitted Advances to be made available to the
proposed Subsidiary at any one time and the effective date of the designation,
which shall be at least 30 days after the date of the written notice. The
written notice shall be accompanied by copies of the financial statements
required by Section 5.4(j) hereof. The designated Subsidiary shall become a
Specified Subsidiary on the later of (i) the effective date specified in such
written notice, or (ii) the date upon which all of the documents and
instruments required pursuant to Section 5.4 with respect to such Subsidiary
have been delivered to the Banks, in either event so long as, within 30 days
after the date of the written notice, the Majority Banks have notified the
Company in writing that they approve of the designation. Failure on the part
of any Bank to respond to any such request shall be deemed to be a denial of
such request. If the Majority Banks agree in writing to the designation, such
designation shall be binding upon all Banks.
(b) The Company may propose by written notice an increase in the maximum
amount of Permitted Advances for a Specified Subsidiary effective as of a date
at least 30 days after the date of such written notice, which written notice
shall be accompanied by the most recent (i) annual unaudited financial
statements, and (ii) unaudited interim financial statements with respect to
such Specified Subsidiary as of the date of such written notice, in each case
certified as complete and correct by an authorized financial officer of the
Specified Subsidiary. The increase shall be effective on the effective date
specified in the written notice so long as, within 30 days after the date of
the written notice, the Majority Banks have notified the Company in writing
that they approve of the increase. Failure on the part of any Bank to respond
to any such proposed increase shall be deemed to be a denial of such proposed
increase. If the Majority Banks agree in writing to such increase, such
agreement shall be binding upon all Banks.
(c) All Specified Subsidiaries shall be Wholly-owned Subsidiaries.
(d) The Company may discontinue the designation of any Subsidiary as a
Specified Subsidiary, or reduce the maximum amount of Permitted Advances for
any Specified Subsidiary, by written notice to the Banks at least 30 days
prior to the effective date of such discontinuance or reduction, provided that
no Subsidiary shall cease to be designated as a Specified Subsidiary at any
time during which any Permitted Advances to such Subsidiary are outstanding;
and provided further that the maximum amount of Permitted Advances available
to any Specified Subsidiary shall not be reduced to an amount less than its
Permitted Advances outstanding as of the date of such reduction.
(e) The Company shall deliver or cause to be delivered to the Banks,
within 120 days after the close of the fiscal year of each Specified
Subsidiary, annual unaudited financial statements in the form required by
Section 5.4(j) hereof with respect to each such Specified Subsidiary,
certified as complete and correct by an authorized financial officer of the
applicable Specified Subsidiary.
(f) The aggregate principal amount of (i) Permitted Advances to all
Specified Subsidiaries outstanding at any time shall not exceed $100,000,000;
and (ii) all Advances (including Permitted Advances) outstanding at any time
shall not exceed the aggregate Commitments of the Banks at such time.
ARTICLE II
THE SYNDICATED BORROWING FACILITY
2.1 The Syndicated Borrowing Facility. Each Bank severally agrees, on
the terms and conditions provided herein, to make Syndicated Advances to the
Company or a Specified Subsidiary, as applicable, from time to time on any
Business Day during the period from the date hereof to the Termination Date in
an aggregate amount not to exceed at any time outstanding the amount of such
Bank's Available Commitment (the "Syndicated Borrowing Facility"). Subject to
Section 4.11, each Syndicated Borrowing shall be in an aggregate amount not
less than $10,000,000 (and in integral multiples of $5,000,000 in excess
thereof), shall be made on the same day from the Banks ratably according to
their respective Commitments and shall consist of Syndicated Advances of the
same Type. Within the limits of each Bank's Available Commitment, the Company
or a Specified Subsidiary, as applicable, may borrow under this Section 2.1,
repay pursuant to Section 4.8, or prepay pursuant to Section 4.6, and reborrow
under this Section 2.1. The Syndicated Borrowing Facility is an entirely
separate facility from the Competitive Bid Borrowing Facility; the aggregate
principal amount of Syndicated Advances outstanding at any time, together with
the aggregate principal amount of Competitive Bid Advances outstanding at such
time, shall not exceed the aggregate Commitments of the Banks at such time.
2.2 Making the Syndicated Advances. Each Syndicated Borrowing shall be
made by telephonic notice (which shall be confirmed in writing not later than
two hours thereafter in the case of a Borrowing consisting of Eurodollar Rate
Advances or Adjusted CD Rate Advances, and not later than 30 minutes
thereafter in the case of a Borrowing consisting of Base Rate Advances),
telecopier notice or telex notice given by the Company or a Specified
Subsidiary, as applicable, to each Bank not later than (i) 10:00 a.m. (Chicago
time) three Business Days prior to the proposed Borrowing Date, in the case of
a Borrowing comprised of Eurodollar Rate Advances, (ii) 10:00 a.m. (Chicago
time) two Business Days prior to the proposed Borrowing Date, in the case of a
Borrowing comprised of Adjusted CD Rate Advances, or (iii) 9:00 a.m. (Chicago
time) on the proposed Borrowing Date, in the case of a Borrowing comprised of
Base Rate Advances. Each notice of Syndicated Borrowing pursuant to this
Section 2.2 (a "Notice of Syndicated Borrowing") shall be in substantially the
form of Exhibit 2.2 hereto, specifying the proposed Borrowing Date, the Type
of Syndicated Advances, the aggregate amount of the proposed Syndicated
Borrowing, the Interest Period for each such Syndicated Advance, and for each
Bank such Bank's ratable portion of such Syndicated Borrowing. With respect
to Advances to the Company, each Bank, for the account of its Applicable
Lending Office, shall before 2:00 p.m. (Chicago time) on the date of such
Syndicated Borrowing specified in the Notice of Syndicated Borrowing received
from the Company, pursuant to the preceding sentence, deposit such Bank's
ratable portion of such Syndicated Borrowing in immediately available funds to
the Company's account (number xx-xxxxx) at Continental Bank N.A. (unless
another account is designated by the Company to the Banks in writing for such
purpose). With respect to Permitted Advances to a Specified Subsidiary, each
Bank, for the account of its Applicable Lending Office, shall before 2:00 p.m.
(Chicago time) on the date of such Syndicated Borrowing specified in the
Notice of Syndicated Borrowing received from such Specified Subsidiary,
deposit such Bank's ratable portion of such Syndicated Borrowing in
immediately available funds to the account designated by such Specified
Subsidiary to the Banks in writing for such purpose.
ARTICLE III
THE COMPETITIVE BID BORROWING FACILITY
3.1 The Competitive Bid Borrowing Facility. Each Bank severally agrees,
on the terms and conditions provided herein, to make available to the Company
or a Specified Subsidiary, as applicable, a competitive bid borrowing facility
(the "Competitive Bid Borrowing Facility") pursuant to which the Company or a
Specified Subsidiary, as applicable, may, from time to time on any Business
Day during the period from the date hereof to the Termination Date and as
otherwise set forth in this Article III, request all of the Banks to offer to
make Competitive Bid Advances to the Company or a Specified Subsidiary, as
applicable; provided, however, that the Company or a Specified Subsidiary, as
applicable, shall be under no obligation to request any Bank to offer to make
Competitive Bid Advances if such Bank has provided prior written notice to the
Bid Advance Agent and the Company or a Specified Subsidiary, as applicable,
that it desires not to participate in the Competitive Bid Borrowing Facility
for a period of time which includes the date of the Company's or a Specified
Subsidiary's, as applicable, request. Each Bank of which any such request
shall be made may, but shall have no obligation to, make such offers and the
Company or a Specified Subsidiary, as applicable, may, but shall have no
obligation to, accept any such offers in the manner set forth in this Article
III. The Competitive Bid Borrowing Facility is an entirely separate facility
from the Syndicated Borrowing Facility; provided that the aggregate principal
amount of Competitive Bid Advances outstanding at any time, together with the
aggregate principal amount of Syndicated Advances outstanding at such time,
shall not exceed the aggregate Commitments of the Banks at such time. Within
the limits and on the conditions set forth in this Article III, the Company or
a Specified Subsidiary, as applicable, may from time to time borrow, repay,
and reborrow under this Article III.
3.2 Competitive Bid Quote Request. When the Company or a Specified
Subsidiary, as applicable, wishes to request offers to make Competitive Bid
Advances under this Article III, it shall deliver to the Bid Advance Agent a
Competitive Bid Quote Request by telephone (confirmed immediately in writing),
telecopier, or telex so as to be received no later than 9:30 a.m. (Chicago
time) at least one Business Day prior to the Borrowing Date proposed therein
(or, upon reasonable prior notice to the Banks, such other time and date as
the Company or a Specified Subsidiary, as applicable, and the Majority Banks
(or, if the Bid Advance Agent is a Bank, the Bid Advance Agent) may agree),
specifying:
(a) the proposed Borrowing Date, which shall be a Business Day, for the
proposed Competitive Bid Advances;
(b) the aggregate principal amount of such Competitive Bid Advances;
(c) the Interest Period or Periods applicable thereto; and
(d) if fewer than all Banks are to be solicited, the name of the Banks to
be solicited.
The Company or a Specified Subsidiary, as applicable, may request offers
to make Competitive Bid Advances for more than one Interest Period, but not
more than six Interest Periods, in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five Business Days (or
such other number of days as the Company or a Specified Subsidiary, as
applicable, and the Majority Banks (or, if the Bid Advance Agent is a Bank,
the Bid Advance Agent) may agree) of any other Competitive Bid Quote Request.
A Competitive Bid Quote Request that does not conform substantially to the
format of Exhibit 3.2 hereto shall be rejected, and the Bid Advance Agent
shall promptly notify the Company or a Specified Subsidiary, as applicable, of
such rejection by telephone, telex, or telecopy.
3.3 Invitation for Competitive Bid Quotes. Promptly upon receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 3.2,
the Bid Advance Agent shall send to each of the Banks (or, if fewer than all
of the Banks shall have been specified by the Company or a Specified
Subsidiary, as applicable, therein pursuant to Section 3.1, to each of the
specified Banks) by telex or telecopy a copy of such Competitive Bid Quote
Request or a summary of the contents thereof.
3.4 Submission and Contents of Competitive Bid Quotes. (a) Each Bank
receiving notice of a Competitive Bid Quote Request from the Bid Advance Agent
pursuant to Section 3.3 may, in its sole discretion, submit a Competitive Bid
Quote containing an offer or offers to make Competitive Bid Advances in
response to such Competitive Bid Quote Request. Each Competitive Bid Quote
must comply with the requirements of this Section 3.4 and must be submitted to
the Bid Advance Agent by telex or telecopy at its offices specified in or
pursuant to Section 10.2 not later than 9:00 a.m. (Chicago time) on the
proposed Borrowing Date (or, upon reasonable prior notice to the Banks, such
other time and date as the Company or a Specified Subsidiary, as applicable,
and the Majority Banks (or, if the Bid Advance Agent is a Bank, the Bid
Advance Agent) may agree); provided, if the Bid Advance Agent is a Bank, that
Competitive Bid Quotes submitted by the Bid Advance Agent in its capacity as a
Bank may be submitted, and may only be submitted, if such Bid Advance Agent
notifies the Company or a Specified Subsidiary, as applicable, of the terms of
the offer or offers contained therein not later than 30 minutes prior to the
time the other Banks are required to submit their Competitive Bid Quotes on
the proposed Borrowing Date. Subject to Articles V and VIII, any Competitive
Bid Quote so made shall be irrevocable except with the written consent of the
Bid Advance Agent and the Company or a Specified Subsidiary, as applicable.
(b) Each Competitive Bid Quote shall be in substantially the form of
Exhibit 3.4 hereto and shall in any case specify:
(i) the proposed Borrowing Date, which shall be the same as that set
forth in the applicable Competitive Bid Quote Request;
(ii) the principal amount of the Competitive Bid Advance for which
each such offer is being made, which principal amount (1) may be greater
than, less than, or equal to the Commitment of the quoting Bank, (2) must
be at least $2,000,000 (and in integral multiples of $500,000 in excess
thereof), and (3) may not exceed the aggregate principal amount of
Competitive Bid Advances for which offers were requested;
(iii) the Absolute Rate offered for each such Competitive Bid Advance
and the Interest Period applicable thereto; and
(iv) the identity of the quoting Bank.
(c) The Bid Advance Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit 3.4 hereto or does not
specify all of the information required by Section 3.4(b);
(ii) contains qualifying, conditional, or similar language, other than
any such language contained in Exhibit 3.4; provided, however, that a
quoting Bank may condition its Competitive Bid Quote on acceptance by the
Company or a Specified Subsidiary, as applicable, of a specified minimum
principal amount of such Bank's proposed Competitive Bid Advance;
(iii) proposes terms other than or in addition to those set forth in
the applicable Competitive Bid Quote Request; or
(iv) arrives after the time set forth in Section 3.4(a).
If any Competitive Bid Quote shall be rejected pursuant to this Section
3.4(c), the Bid Advance Agent shall notify the relevant Bank of such rejection
as soon as practical.
3.5 Notice to the Company or a Specified Subsidiary, as applicable. The
Bid Advance Agent shall promptly, but in no event later than 9:30 a.m.
(Chicago time) on the proposed Borrowing Date (or such other time and date as
the Company or a Specified Subsidiary, as applicable, and the Majority Banks
(or, if the Bid Advance Agent is a Bank, the Bid Advance Agent) may agree),
notify the Company or a Specified Subsidiary, as applicable, of the terms (i)
of any Competitive Bid Quote submitted by a Bank that is in accordance with
Section 3.4 and (ii) of any Competitive Bid Quote submitted by a Bank which
amends, modifies, or is otherwise inconsistent with a previous Competitive Bid
Quote submitted by such Bank with respect to the same Competitive Bid Quote
Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Bid Advance Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest error in
such former Competitive Bid Quote. The Bid Advance Agent's notice to the
Company or a Specified Subsidiary, as applicable, shall specify the aggregate
principal amount of Competitive Bid Advances for which offers have been
received for each Interest Period specified in the related Competitive Bid
Quote Request and the respective principal amounts and Absolute Rates so
offered.
3.6 Acceptance and Notice by the Company or a Specified Subsidiary, as
applicable. Not later than 10:00 a.m. (Chicago time) on the proposed
Borrowing Date (or, upon reasonable prior notice to the Banks, such other time
and date as the Company or a Specified Subsidiary, as applicable, and the
Majority Banks (or, if the Bid Advance Agent is a Bank, the Bid Advance Agent)
may agree), the Company or a Specified Subsidiary, as applicable, shall either
cancel the applicable Competitive Bid Quote Request by giving the Bid Advance
Agent notice to that effect, or notify the Bid Advance Agent of its acceptance
or non-acceptance of any or all of the offers so notified to it pursuant to
Section 3.5; provided, however, that the failure by the Company or a Specified
Subsidiary, as applicable, to give such notice of acceptance or non-acceptance
to the Bid Advance Agent with respect to any such offer shall be deemed to be
a rejection of such offer. In the case of acceptance, such notice (a "Notice
of Competitive Bid Borrowing") shall be substantially in the form of Exhibit
3.6 hereto and shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Company or a Specified Subsidiary, as
applicable, may accept any Competitive Bid Quote in whole or in part; provided
that:
(a) the aggregate principal amount of Competitive Bid Advances may not
exceed, but may be less than, the applicable amount set forth in the related
Competitive Bid Quote Request;
(b) acceptance of offers may only be made on the basis of ascending
Absolute Rates starting with the lowest and continuing with the next lowest
until offers in the aggregate amount specified by the Company or a Specified
Subsidiary, as applicable, for acceptance shall have been accepted; and
(c) the Company or a Specified Subsidiary, as applicable, may not accept
any offer that is described in Section 3.4(c) or that otherwise fails to
comply with the requirements of this Agreement.
3.7 Allocation by Bid Advance Agent. If offers are made by two or more
Banks with the same Absolute Rates for a greater aggregate principal amount
than the amount in respect of which offers remain to be accepted, as specified
by the Company or a Specified Subsidiary, as applicable, for the related
Interest Period (after giving effect to the acceptance of all offers made at
lower rates), the principal amount of Competitive Bid Advances in respect of
which such offers are accepted shall be allocated by the Bid Advance Agent
among such Banks as nearly as possible (in such multiples, not greater than
$500,000, as the Bid Advance Agent may deem appropriate) in proportion to the
aggregate principal amount of such offers. Allocations by the Bid Advance
Agent of the amounts of Competitive Bid Advances shall be conclusive in the
absence of manifest error.
3.8 Notification of Acceptances to the Affected Banks. Promptly
following its receipt of a Notice of Competitive Bid Borrowing, the Bid
Advance Agent shall notify by telex or telecopy each Bank that has made a
Competitive Bid Quote of the extent to which its offer or offers have been
accepted, specifying in such notice the principal amount of each Competitive
Bid Advance in respect of which such Competitive Bid Quote has been accepted,
the Interest Period therefor and the Absolute Rate therefor.
3.9 Funding of Competitive Bid Advances. Each Bank that is to make a
Competitive Bid Advance in connection with any Notice of Competitive Bid
Borrowing shall, before 12:00 noon (Chicago time) on the first day of the
Interest Period therefor specified in the notice from the Bid Advance Agent
delivered pursuant to Section 3.8, deposit the amount of each of such Bank's
Competitive Bid Advances in immediately available funds to the Company's
account (number xx-xxxxx) at Continental Bank N.A. (unless another account is
designated by the Company to the Banks in writing for such purpose) or, with
respect to Competitive Bid Advances to a Specified Subsidiary, to the account
designated by such Specified Subsidiary to the Banks in writing for such
purpose. Promptly following each Competitive Bid Borrowing, the Company or a
Specified Subsidiary, as applicable, shall notify each Bank of the aggregate
amount of Competitive Bid Advances made in connection therewith, the
consequent Syndicated Reduction and the Interest Periods for such Competitive
Bid Advances.
ARTICLE IV
GENERAL TERMS
4.1 Interest. The Company or a Specified Subsidiary, as applicable,
shall pay interest on the unpaid principal amount of each Advance made by each
Bank from the date of such Advance until such principal amount shall be paid
in full at the following applicable rates per annum:
(a) Base Rate Advances. If such Advance is a Base Rate Advance, a rate
per annum equal at all times during the Interest Period for such Advance to
the Base Rate in effect from time to time, payable on the last day of such
Interest Period and, if such Interest Period has a duration of more than 90
days, on each day which occurs during such Interest Period every 90 days from
the first day of such Interest Period.
(b) Adjusted CD Rate Advances. If such Advance is an Adjusted CD Rate
Advance, a rate per annum equal at all times during the Interest Period for
such Advance to the Adjusted CD Rate for such Interest Period plus the
Applicable CD Margin applicable on the first day of such Interest Period,
payable on the last day of such Interest Period and, if such Interest Period
has a duration of more than 90 days, on the date during such Interest Period
which occurs 90 days after the first day of such Interest Period.
(c) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate
Advance, a rate per annum equal at all times during the Interest Period for
such Advance to the Eurodollar Rate for such Interest Period plus the
Applicable Eurodollar Margin applicable on the first day of such Interest
Period, payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on the date during such
Interest Period which occurs three months after the first day of such Interest
Period.
(d) Competitive Bid Advances. If such Advance is a Competitive Bid
Advance, such rate per annum equal to the Absolute Rate that shall have been
offered by such Bank pursuant to Section 3.4 in its Competitive Bid Quote
related thereto and accepted by the Company or a Specified Subsidiary, as
applicable, pursuant to Section 3.6 in its Notice of Competitive Bid Borrowing
related thereto, payable on the last day of the applicable Interest Period
and, if such Interest Period has a duration of more than 90 days, on each day
which occurs during such Interest Period every 90 days from the first day of
such Interest Period.
4.2 Interest on Overdue Principal. If any amount of principal is not
paid when due (whether at stated maturity, by acceleration, or otherwise),
that amount of principal shall bear interest from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to 2% per annum above the Base Rate in effect
from time to time.
4.3 Interest Rate Determinations. (a) Each Reference Bank agrees to
furnish to the Company and to each Bank timely information for the purpose of
determining each Adjusted CD Rate or Eurodollar Rate, as applicable. Subject
to subsection (c) of this Section, if any one or more of the Reference Banks
shall not furnish such timely information to the Company and the Banks for
determination of any such interest rate, the Company shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks.
(b) The Company shall give prompt notice to the Banks of any applicable
interest rate determined by the Company for purposes of Section 4.1 and the
applicable rate, if any, furnished by each Reference Bank for determining the
applicable interest rate under Sections 4.1(b) or (c).
(c) If any Reference Bank shall fail to furnish timely information to the
Company and the Banks for determining the Adjusted CD Rate or the Eurodollar
Rate with respect to any requested Borrowing, the Company shall be entitled to
designate one or more of the other Banks hereunder as successor Reference
Banks. Each such designation shall be subject to the consent of the Majority
Banks, which consent shall not be unreasonably withheld. Upon receipt of such
consent, the affected Reference Bank shall cease to be a Reference Bank
hereunder and each successor Reference Bank shall be a Reference Bank for all
purposes of this Agreement until such time as either (i) such Reference Bank
shall no longer be a Bank hereunder or (ii) the Company shall replace such
Reference Bank pursuant to this Section 4.3(c).
4.4 Commitment Fees. (a) The Company agrees to pay to each Bank a
commitment fee at the applicable rate per annum set forth below on the average
daily amount of such Bank's Commitment Fee Base. The applicable rate for any
period shall be determined on the basis of the Credit Ratings during such
period, the applicable rate to change when and as such Credit Ratings change.
Company Credit Rating Commitment Fee Rate
Baa1 (Moody's) and BBB+ (S&P) or
better *[P-1 (Moody's) and A-2 (S&P)
or P-2 (Moody's) and A-1 (S&P) or
better] 0.20%
Below either Baa1 (Moody's) or
BBB+ (S&P) but not below either
Baa2 (Moody's) or BBB (S&P) *[P-2
(Moody's) and A-2 (S&P)] 0.25%
Below either Baa2 (Moody's) or BBB
(S&P) but not below both Baa3
(Moody's) and BBB- (S&P) *[P-3
(Moody's) and A-2 or A-3 (S&P) or
A-3 (S&P) and P-2 or P-3 (Moody's)] 0.30%
Below Baa3 (Moody's) but not below
BBB- (S&P) or below BBB- (S&P)
but not below Baa3 (Moody's) *[P-3
(Moody's) and "no rating" (S&P) or
"no rating" (Moody's) and A-3 (S&P)] 0.35%
Below both Baa3 (Moody's) and BBB-
(S&P) *["no rating" (Moody's) and
"no rating" (S&P)] 0.40%
________________________
*Commercial Paper Credit Ratings to be utilized under the circumstances
described in subparagraph (d) under the definition of "Credit Ratings."
(b) The commitment fee described in Section 4.4(a) shall accrue from and
including the date on which this Agreement has been executed and delivered by
all Banks to but excluding the Termination Date or, in the case of any Bank,
the earlier date of reduction to zero of such Bank's Commitment hereunder, and
shall be payable quarterly during the term of each Bank's Commitment
hereunder, in arrears, not later than the 30th day of each March, June,
September, and December, commencing March 30, 1993, and, in the case of each
Bank, on the date such Bank's Commitment shall be reduced to zero.
4.5 Reduction of the Commitments. The Company may, upon at least five
Business Days' written notice to each Bank, terminate in whole or reduce
ratably in part the respective Commitments of the Banks, provided that (i) any
such reduction shall not exceed an aggregate amount equal to the unused
portions of the respective Available Commitments of the Banks at such time,
and (ii) in the case of any partial reduction of the Commitments, such partial
reduction shall be in an aggregate amount not less than the lesser of (A)
$10,000,000 (or an integral multiple of $5,000,000 in excess thereof) and (B)
the aggregate amount at such time of the unused portions of the respective
Available Commitments.
4.6 Optional Prepayments. The Company or a Specified Subsidiary, as
applicable, may, upon irrevocable notice to the Banks, given not later than
9:00 a.m. (Chicago time) on the proposed date of prepayment, by telephone (to
be confirmed immediately in writing), telecopier or telex, stating in such
notice the proposed date, aggregate principal amount of the prepayment, and
each Bank's ratable share, if any, of such prepayment, and if such notice is
given the Company or a Specified Subsidiary, as applicable, shall, prepay the
outstanding principal amount of the Syndicated Advances made as part of the
same Syndicated Borrowing in whole or, in the case of a Syndicated Borrowing
comprised solely of Base Rate Advances, ratably in part, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment; provided that each partial prepayment shall be in an
amount not less than $10,000,000 and in an integral multiple of $5,000,000.
Each such optional prepayment shall be applied to prepay ratably the
Syndicated Advances of the several Banks included in such Syndicated
Borrowing. If the Company or a Specified Subsidiary, as applicable, prepays
any Syndicated Borrowing consisting of or including Adjusted CD Rate Advances
or Eurodollar Rate Advances, the Company or a Specified Subsidiary, as
applicable, shall reimburse each Bank for the losses, costs, and expenses
contemplated in Section 10.4(b). The Company or a Specified Subsidiary, as
applicable, may not, unless otherwise required hereunder, prepay any
Competitive Bid Advance without the consent of the Bank which shall have
extended such Competitive Bid Advance. In the event the Company or a
Specified Subsidiary, as applicable, and a Bank agree to the prepayment to
such Bank of a Competitive Bid Advance, and such prepayment is made, the
Company or a Specified Subsidiary, as applicable, thereupon shall notify the
other Banks thereof.
4.7 The Notes. (a)The Indebtedness of the Company or a Specified
Subsidiary, as applicable, resulting from Syndicated Advances made by each
Bank to the Company or a Specified Subsidiary, as applicable, shall be
evidenced by a promissory note of the Company or a Specified Subsidiary, as
applicable, payable to the order of such Bank substantially in the form of
Exhibit 4.7(a) or 5.4(b)(1) hereto (sometimes called a "Syndicated Note").
Each Bank may, by notice to the Company or a Specified Subsidiary, as
applicable, to be given not later than three Business Days prior to the First
Borrowing, request that its Adjusted CD Rate Advances, Base Rate Advances, and
Eurodollar Rate Advances each (or in any combination thereof) be evidenced by
separate promissory notes. Each such promissory note shall be substantially
in the form of Exhibit 4.7(a) or 5.4(b)(1), with appropriate modifications to
reflect the fact that each such promissory note evidences solely Syndicated
Advances of the relevant Type. Each reference in this Agreement or the Notes
to the "Notes" or the "Syndicated Notes" of such Bank shall mean and be deemed
to refer to and include any or all of such substituted promissory notes, as
the context may require.
(b) The Indebtedness of the Company or a Specified Subsidiary, as
applicable, resulting from the Competitive Bid Advances made by each Bank to
the Company or a Specified Subsidiary, as applicable, shall be evidenced by a
promissory note of the Company or a Specified Subsidiary, as applicable,
payable to the order of such Bank substantially in the form of Exhibit 4.7(b)
or 5.4(b)(2) hereto (sometimes called a "Competitive Bid Note" and together
with the Syndicated Notes, the "Notes").
(c) The Company or a Specified Subsidiary, as applicable, and each Bank
shall maintain records of all Advances made by such Bank to the Company or a
Specified Subsidiary, as applicable, the interest rate for such Advances, and
all payments made on account of principal thereof and, prior to any transfer
of any Note, such Bank shall endorse a record of the Advances evidenced by
such Note held by such Bank on the grid attached thereto and forming a part of
such Note. Failure by a Bank to record on the appropriate Note any Advance or
payment shall not affect the obligation of the Company or a Specified
Subsidiary, as applicable, with respect to such Advance or payment. If the
records of the Company or a Specified Subsidiary, as applicable, and any Bank
differ in any material respect, the records of such Bank shall govern absent
manifest error.
4.8 Repayment. The Company or a Specified Subsidiary, as applicable,
shall repay the principal amount of each Advance made by each Bank on the last
day of the Interest Period for such Advance, or on any earlier date required
in accordance with the terms of this Agreement. If any Bank makes a new
Advance to the Company or a Specified Subsidiary, as applicable, on a day on
which the Company or a Specified Subsidiary, as applicable, is to repay all or
any part of any outstanding Advance from such Bank, such Bank shall apply the
proceeds of its new Advance to make such repayment, and only an amount equal
to the difference (if any) between the amount being borrowed from such Bank
and the amount being repaid to such Bank shall be made available by such Bank
to the Company or a Specified Subsidiary, as applicable, as provided in
Section 2.2 or 3.9 (as applicable) or remitted by the Company or a Specified
Subsidiary, as applicable, to such Bank as provided in Section 4.9, as the
case may be.
4.9 Payments and Computations. (a) The Company or a Specified Subsidiary,
as applicable, shall make each payment hereunder and under the Notes not later
than 12:00 noon (Chicago time) on the day when due in U.S. Dollars to the
Banks in immediately available funds. The Company or a Specified Subsidiary,
as applicable, shall make each payment of principal, interest, and commitment
fees as such payment becomes due, ratably (in accordance with the obligation
to which such payment relates) to the Banks for the account of their
respective Applicable Lending Offices, and shall make payment of any other
amount payable to any Bank, to such Bank for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of
this Agreement.
(b) All computations of interest and commitment fees shall be made on the
basis of a year of 360 days (except for computation of interest based on the
Base Rate, which shall be made on the basis of a year of 365 or 366 days, as
the case may be) for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or
commitment fees are payable.
(c) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be. If such extension would cause such payment with respect to a
Eurodollar Rate Advance to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day and the period of
time during which such payment would have been outstanding but for compliance
with this provision shall not be included in the computation of payment of
interest with respect thereto.
4.10 Effect of Notice of Borrowing. Subject to Section 4.11, each Notice
of Borrowing shall be irrevocable and binding on the Company or a Specified
Subsidiary, as applicable. In the event that a Notice of Borrowing is made by
telephone and the written confirmation thereof differs in any respect from
such telephone notice, the information contained in the written confirmation
shall control for purposes of Advances to be made under this Agreement.
4.11 Illegality; Interest Rate Inadequate or Unfair. The obligation of
each Bank to extend an Advance on the date therefor is subject to the
following:
(a) If, after the date of this Agreement, the adoption of any applicable
law, rule, or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank, or comparable agency shall make it
unlawful or impossible for any Bank (or its Applicable Lending Office) to
make, maintain, or fund its Adjusted CD Rate Advances or Eurodollar Rate
Advances, such Bank shall so notify the Company. The Company and such Bank
shall forthwith give notice thereof to the other Banks, whereupon until such
Bank notifies the Company that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make Adjusted CD
Rate Advances or Eurodollar Rate Advances, as the case may be, shall be
suspended and each Adjusted CD Rate Advance or Eurodollar Rate Advance, as the
case may be, which such Bank shall thereafter be required to make hereunder
shall be made as a Base Rate Advance, which Base Rate Advance shall be made on
the same day and have the same Interest Period as the Adjusted CD Rate
Advances or Eurodollar Rate Advances, as the case may be, made by the other
Banks comprising the balance of such Borrowing. If such Bank (i) shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Adjusted CD Rate Advances, Eurodollar Rate Advances, or
Competitive Bid Advances to maturity, (ii) shall so specify in a written
notice to the Company, and (iii) shall deliver to the Company an opinion of
counsel concurring in such determination, the Company or a Specified
Subsidiary, as applicable, shall immediately prepay in full the then
outstanding principal amount of each such Adjusted CD Rate Advance, Eurodollar
Rate Advance, or Competitive Bid Advance, as the case may be, the Company or a
Specified Subsidiary, as applicable, shall borrow a Base Rate Advance (or if
the Company or a Specified Subsidiary, as applicable, shall so elect (A) by
two Business Days' notice to such Bank, an Adjusted CD Rate Advance in the
case of an affected Eurodollar Rate Advance or Competitive Bid Advance or (B)
by three Business Days' notice to such Bank, a Eurodollar Rate Advance in the
case of an affected Adjusted CD Rate Advance or Competitive Bid Advance) in an
equal principal amount from such Bank (on which interest and principal shall
be payable contemporaneously with the related Adjusted CD Rate Advances,
Eurodollar Rate Advances, or Competitive Bid Advances of the other Banks), and
such Bank shall make such Advance.
(b) Subject to Section 4.3(c), if by the first day of the Interest Period
for any requested Syndicated Borrowing consisting of Adjusted CD Rate Advances
or by the first Business Day before the date of any requested Borrowing
consisting of Eurodollar Rate Advances less than two Reference Banks furnish
timely information to the Company and the Banks for determining the Adjusted
CD Rate for Adjusted CD Rate Advances, or the Eurodollar Rate for Eurodollar
Rate Advances, comprising such requested Borrowing, the right of the Company
or a Specified Subsidiary, as applicable, to select Adjusted CD Rate Advances
or Eurodollar Rate Advances, as the case may be, for such Borrowing and any
subsequent Borrowing shall be suspended until at least two Reference Banks
shall furnish such information. Upon such suspension, the Company or a
Specified Subsidiary, as applicable, shall by 1:00 p.m. (Chicago time) on such
Business Day notify the Banks whether it shall revoke the related Notice of
Borrowing or shall amend the related Notice of Borrowing to request an
unaffected Type of Advance. If the Company or a Specified Subsidiary, as
applicable, elects to revoke such Notice of Borrowing, the obligation of the
Banks to make Advances in connection with such Notice of Borrowing shall
thereupon terminate. If the Company or a Specified Subsidiary, as applicable,
elects to amend such Notice of Borrowing, the Company or a Specified
Subsidiary, as applicable, shall specify, in its notice thereof to the Banks,
the Type of Advances to be made in connection with such Notice of Borrowing,
which Type of Advances, unless the Company or a Specified Subsidiary, as
applicable, is not able to comply with the notice requirements set forth with
respect thereto in the first sentence of Section 2.2, shall be the Type of
Advance each Bank shall make in connection with such Notice of Borrowing. In
the event that (i) the Company or a Specified Subsidiary, as applicable, shall
fail to give timely notice to the Banks as provided herein as to whether the
Company or a Specified Subsidiary, as applicable, shall revoke or amend a
Notice of Borrowing or (ii) the Company or a Specified Subsidiary, as
applicable, is not able to comply with the notice requirements set forth in
the first sentence of Section 2.2 with respect to a requested unaffected Type
of Advance, the Company or a Specified Subsidiary, as applicable, shall be
deemed to have requested Base Rate Advances in substitution for the affected
Advances, and each Bank obligated to participate in such Borrowing shall
extend a Base Rate Advance to the Company or a Specified Subsidiary, as
applicable, in lieu of the originally requested Type of Advance. Each Advance
to be made in connection with an amended Notice of Borrowing pursuant to this
subsection (b) shall be made on the date specified in the original Notice of
Borrowing with respect thereto and shall have an Interest Period which is
approximately the same duration as the Interest Period originally requested
but which conforms to the conventions, if any, for the substituted Type of
Advance.
(c) If the Majority Banks shall, by 11:00 a.m. (Chicago time) on the first
Business Day before the date of any requested Borrowing consisting of Adjusted
CD Rate Advances or Eurodollar Rate Advances, notify the Company (setting
forth in writing the reasons therefor) that the Adjusted CD Rate for Adjusted
CD Rate Advances or the Eurodollar Rate for Eurodollar Rate Advances
comprising such Borrowing will not adequately reflect the cost to such Banks
of making or funding their respective Adjusted CD Rate Advances or Eurodollar
Rate Advances for such Borrowing, the right of the Company or a Specified
Subsidiary, as applicable, to select Adjusted CD Rate Advances or Eurodollar
Rate Advances, as the case may be, for such Borrowing and any subsequent
Borrowing shall be suspended until such Majority Banks notify the Company in
writing that the circumstances causing such suspension no longer exist. Upon
such suspension, the Company or a Specified Subsidiary, as applicable, shall
by 1:00 p.m. (Chicago time) on such Business Day notify the Banks whether it
shall revoke the related Notice of Borrowing or shall amend the related Notice
of Borrowing to request an unaffected Type of Advance. If the Company or a
Specified Subsidiary, as applicable, elects to revoke such Notice of
Borrowing, the obligation of the Banks to make Advances in connection with
such Notice of Borrowing shall thereupon terminate. If the Company or a
Specified Subsidiary, as applicable, elects to amend such Notice of Borrowing,
the Company or a Specified Subsidiary, as applicable, shall specify, in its
notice thereof to the Banks, the Type of Advances to be made in connection
with such Notice of Borrowing, which Type of Advance, unless the Company or a
Specified Subsidiary, as applicable, is not able to comply with the notice
requirements set forth with respect thereto in the first sentence of Section
2.2, shall be the Type of Advance each Bank shall make in connection with such
Notice of Borrowing. In the event that (i) the Company or a Specified
Subsidiary, as applicable, shall fail to give timely notice to the Banks as
provided herein as to whether the Company or a Specified Subsidiary, as
applicable, shall revoke or amend a Notice of Borrowing or (ii) the Company or
a Specified Subsidiary, as applicable, is not able to comply with the notice
requirements set forth in the first sentence of Section 2.2 with respect to a
requested unaffected Type of Advance, the Company or a Specified Subsidiary,
as applicable, shall be deemed to have requested Base Rate Advances in
substitution for the affected Advances, and each Bank obligated to participate
in such Borrowing shall extend a Base Rate Advance to the Company or a
Specified Subsidiary, as applicable, in lieu of the originally requested
Adjusted CD Rate Advance or Eurodollar Rate Advance. Each Advance to be made
in connection with an amended Notice of Borrowing pursuant to this subsection
(c) shall be made on the date specified in the original Notice of Borrowing
with respect thereto and shall have an Interest Period which is approximately
the same duration as the Interest Period originally requested but which
conforms to the conventions, if any, for the substituted Type of Advance.
4.12 Increased Costs. (a) Subject to Section 4.13, if any Bank shall
determine that by reason of (i) the introduction of or any change in any
applicable law, regulation, or guideline (including the phasing-in of a
provision of any applicable law, regulation, or guideline) or in the
interpretation thereof by any governmental or other regulatory authority
charged with the administration thereof or court of competent jurisdiction
and/or (ii) compliance by such Bank with any requirement of or directive from
any central bank or other fiscal, monetary, or other regulatory authority
(whether or not having the force of law), there shall be any increase in the
cost to such Bank of agreeing or committing to make or making, funding, or
maintaining any Fixed Rate Advances or any reduction in any amount receivable
by such Bank in respect of Fixed Rate Advances under this Agreement, then the
Company or a Specified Subsidiary, as applicable, shall from time to time,
within 30 days after receipt (whenever occurring) of a certificate from such
Bank (which shall be executed by an officer thereof) pay to such Bank such
amounts as are stated therein to be required to indemnify such Bank against
such increased costs and reduction. The certificate of such Bank as to the
amount of such increased costs or reduction shall set forth in reasonable
detail the computation of such increased costs and reduction. The costs or
reduction shall set forth in reasonable detail the computation of such
increased costs or reduction, and shall be binding and conclusive in the
absence of manifest error. Amounts payable pursuant to this Section 4.12(a)
shall not include amounts which the Company or a Specified Subsidiary, as
applicable, is obligated to pay pursuant to the definition of "Adjusted CD
Rate" or "Eurodollar Rate" or Section 4.14. A Bank which demands
indemnification hereunder as a result of an increased cost or reduction
referred to herein shall deliver the certificate referred to above to the
Company demanding indemnification no later than the later of (A) the 60th day
immediately following each payment or realization by such Bank of such
increased cost or reduction (and such certificate shall certify that the
amounts set forth therein were paid or realized within such 60 day period) and
(B) the 60th day immediately following such Bank's knowledge of the incurrence
or realization by such Bank of such increased cost or reduction (and such
certificate shall so certify).
(b) In the event that any Bank shall have determined that the adoption
after the date of this Agreement of any law, rule, guideline, or regulation
regarding the amount of capital required or expected to be maintained
("capital adequacy") by such Bank or any corporation controlling such Bank, or
any change therein or in the interpretation or application thereof after the
date of this Agreement or compliance by such Bank or any corporation
controlling such Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) from any central bank or other
similar authority after the date of this Agreement, does or shall have the
effect of reducing the rate of return on such Bank's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Bank or such corporation could have achieved but for such adoption,
change, or compliance (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 30 days after
receipt (whenever occurring) of a certificate from such Bank (which shall be
executed by an officer thereof), the Company shall pay to such Bank such
additional amounts as are stated therein to be required to compensate it for
such reduction; provided, however, that in no event shall the Company be
obligated to pay such Bank any such additional amount during any quarterly
period which exceeds .25% of the average daily amount of such Bank's
Commitment Fee Base for such period. The certificate of such Bank as to the
amount of such reduction shall set forth in reasonable detail the computation
of such reduction, and shall be binding and conclusive in the absence of
manifest error. A Bank which demands indemnification hereunder as a result of
a reduction referred to herein shall deliver the certificate referred to above
to the Company demanding indemnification no later than the later of (A) the
60th day immediately following each realization by such Bank of such reduction
(and such certificate shall certify that the amounts set forth therein were
realized within such 60 day period) and (B) the 60th day immediately following
such Bank's knowledge of the realization by such Bank of such reduction (and
such certificate shall so certify). If any Bank shall not be fully
compensated for any additional amounts certified to the Company pursuant to
this Section 4.12(b) by virtue of the limitation set forth in the proviso to
the first sentence of this Section 4.12(b), such Bank may elect to cancel the
unused portion of the Commitment of such Bank (a "Cancelling Bank") by giving
notice thereof (a "Cancellation Notice") to the Company specifying the
proposed effective date of cancellation (the "Bank Cancellation Date") of the
unused portion of such Cancelling Bank's Commitment, which date shall not in
any event be less than 10 Business Days following the date of such notice.
Any outstanding Advance of such Cancelling Bank constituting a Base Rate
Advance or having an Interest Period ending on the Bank Cancellation Date
shall be paid on the Bank Cancellation Date and any other Advance of such
Cancelling Bank shall remain outstanding until the last day of the Interest
Period therefor or until otherwise required to be paid in accordance with the
terms of this Agreement. Upon the Company's receipt of such Cancellation
Notice, one or more of the other Banks may agree, upon request of the Company,
to succeed in the aggregate to the entire Commitment of the Cancelling Bank on
the Bank Cancellation Date, which succession shall, with respect to the unused
portion of such Cancelling Bank's Commitment, become effective as of such Bank
Cancellation Date and, with respect to the remaining portion of such
Cancelling Bank's Commitment, become effective as and when such Cancelling
Bank's Advances are repaid. On the Bank Cancellation Date, the Cancelling
Bank shall have no further Commitment and shall no longer be a "Bank" under
this Agreement for any purpose (other than in each case with respect to
Advances made by such Bank which remain outstanding after such date).
4.13 Performance of Banks' Obligations. Each Bank shall use its
reasonable and good faith efforts to keep apprised of all events and
circumstances that would (i) excuse or prohibit such Bank from performing its
obligation to make Eurodollar Rate Advances hereunder pursuant to Section
4.11(a) or (b) or (ii) permit such Bank to demand increased costs pursuant to
Section 4.12. Such Bank shall, as soon as practicable after becoming aware of
any such event or circumstance, use its reasonable and good faith efforts, to
the extent permitted by law, to perform its obligations to make Eurodollar
Rate Advances through another office or lending office, and with respect to
increased costs, to mitigate such increased costs (if the use of such other
office or lending office, or such mitigation would not adversely affect the
performance of such obligations or repayment of the Advances or result in any
increased cost, loss, liability, or other disadvantage to such Bank), in
either case if by taking the action contemplated by the foregoing, such event
or circumstance would cease to exist.
4.14 Taxes. (a) All payments made by the Company or a Specified
Subsidiary, as applicable, under this Agreement or under the Notes shall be
made free and clear of, and without deduction or withholding for or on account
of, any present and future income, stamp, or other taxes, levies, imposts,
deductions, charges, or withholdings imposed, assessed, levied, or collected
by any country or any political subdivision or taxing authority thereof or
therein but excluding taxes imposed on net income of the Bank to which such
amount is payable by the country under the laws of which such Bank is
organized or managed and controlled or any political subdivision or taxing
authority thereof or therein or the country in which such Bank's Applicable
Lending Office may be located or any political subdivision or taxing authority
thereof or therein (all such non-excluded taxes, levies, imposts, deductions,
charge, or withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from the amounts payable to any Bank hereunder, the
amounts so payable to such Bank shall be increased to the extent necessary to
yield to such Bank (after payment of all Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. Whenever any tax is paid by the Company or a Specified Subsidiary,
as applicable, as promptly as possible thereafter, the Company or a Specified
Subsidiary, as applicable, shall send to the relevant Bank a certified copy of
any original receipt received by the Company or a Specified Subsidiary, as
applicable, showing payment thereof. If the Company or a Specified
Subsidiary, as applicable, fails to pay any Taxes when due to the appropriate
taxing authority, the Company or a Specified Subsidiary, as applicable, shall
indemnify each Bank for any incremental taxes, interest, or penalties that may
become payable by such Bank as a result of any such failure.
(b) Each of Chemical Bank, Continental Bank N.A., The First National Bank
of Chicago, Bank of America National Trust and Savings Association and The
Northern Trust Company represents that it is incorporated under the laws of
the United States of America or a state thereof. Within 30 days after the
date of execution of this Agreement, each other Bank agrees that it will
deliver to the Company (i) either (A) a statement that it is incorporated
under the laws of the United States of America or a state thereof or (B) if it
is not so incorporated, a letter in duplicate in the form of Exhibit 4.14(a)
or Exhibit 4.14(b) attached hereto, as appropriate, and two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each case that
such Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States Federal income taxes, and (ii)
an Internal Revenue Service Form W-8 or W-9 or successor applicable form, as
the case may be, to establish an exemption from United States backup
withholding tax. Each such Bank which delivers to the Company a Form 1001 or
4224 and Form W-8 or W-9 pursuant to the next preceding sentence further
undertakes to deliver to the Company two further copies of the said letter and
Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, or other
manner of certification, as the case may be, on or before the date that any
such letter or form expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent letter and form previously
delivered by it to the Company, and such extensions or renewals thereof as may
reasonably be requested by the Company, certifying in the case of a Form 1001
or 4224 that such Bank is entitled to receive payments under this Agreement
without deduction or withholding of any United States Federal income taxes,
unless in any such case an event (including without limitation any change in
treaty, law, or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent a Bank from duly completing and delivering any such
letter or form with respect to it and such Bank advises the Company that it is
not capable of receiving payments without any deduction or withholding of
United States Federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax.
(c) Without affecting its rights under this Section 4.14 or any other
provision of this Agreement, each Bank agrees that in the event that any Taxes
are imposed and required by law to be paid or to be withheld from any amount
payable to any Bank or its Applicable Lending Office with respect to which the
Company or a Specified Subsidiary, as applicable, would be obligated pursuant
to this Section 4.14 to increase any amounts payable to such Banks or to pay
any such Taxes, such Bank shall use reasonable efforts to select an
alternative Applicable Lending Office which would not result in the imposition
of such Taxes; provided, however, that no Bank shall be obligated to select an
alternative Applicable Lending Office if such Bank determines, in its sole
discretion, that (i) as a result of such selection such Bank would be in
violation of an applicable law, regulation, treaty, directive, or guideline or
would incur additional costs or expenses or (ii) such selection would be
inadvisable for regulatory reasons or inconsistent with the interests of
such Bank.
(d) To the extent that, as determined by any Bank in its sole discretion
and without any obligation to disclose its tax records, Taxes have been
irrevocably utilized by such Bank (either as credits or deductions) to reduce
its tax liabilities and such utilization is consistent with its overall tax
policy, such Bank shall pay to the Company or a Specified Subsidiary, as
applicable, an amount equal to such reduction obtained to the extent of such
increased amounts paid by the Company or a Specified Subsidiary, as
applicable, to such Bank as aforesaid.
4.15 Effect of Failure to Borrow or Fund. (a)In the case of any Borrowing
which the related Notice of Borrowing specifies is to be comprised of Fixed
Rate Advances, the Company or a Specified Subsidiary, as applicable, shall
indemnify each Bank against all direct out-of-pocket losses and reasonable
expenses incurred by such Bank as a result of any failure by the Company or a
Specified Subsidiary, as applicable, to fulfill on or before the date
specified for such Borrowing the applicable conditions set forth in Article V
to the extent of all direct out-of-pocket losses and reasonable expenses
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund the Advance to be made by such Bank as
part of such Borrowing when such Advance, as a result of such failure, is not
made on such date. The Company or a Specified Subsidiary, as applicable,
shall not be liable to any Bank under this Section 4.15(a) with respect to
consequential damages arising or incurred by such Bank in connection with the
Company's or a Specified Subsidiary's, as applicable, failure to fulfill
timely the applicable conditions set forth in Article V.
(b) Each Bank shall indemnify the Company or a Specified Subsidiary, as
applicable, against all direct out-of-pocket losses and reasonable expenses
incurred by the Company or a Specified Subsidiary, as applicable, as a result
of any failure by such Bank to make timely any Advance in the manner and at
the time such Advance is required to be made in accordance with Section 2.2 or
3.9, as applicable (but only if all of the conditions precedent to the making
of such Advances were timely satisfied or waived pursuant to Section 10.1), to
the extent of all interest and overdraft charges and all direct out-of-pocket
losses and reasonable expenses incurred by reason of the Company or a
Specified Subsidiary, as applicable, borrowing funds at a higher rate of
interest than the rate of interest applicable to any Advance not made;
provided, however, that the aggregate amount payable to the Company or a
Specified Subsidiary, as applicable, by any Bank under this Section 4.15(b)
shall not exceed the Daily Indemnity Amount for each of the first two Business
Days (and for each non-Business Day occurring prior to either of the first or
second of such Business Days) after such Bank has failed to make timely such
Advance and such failure has continued. Beginning with the day (whether or
not a Business Day) immediately succeeding the second Business Day after any
such failure to make an Advance, the amount payable to the Company or a
Specified Subsidiary, as applicable, by any Bank in respect of each day on
which such failure has continued shall no longer be limited by the proviso in
the preceding sentence. For purposes of this Section 4.15(b), "Daily
Indemnity Amount" shall mean the amount equal to the product of (i) the amount
of the Advance which a Bank has failed to make timely as otherwise required in
accordance with Section 2.2 or 3.9 and (ii) the Federal Funds Rate (calculated
on a per diem basis). No Bank shall be liable to the Company or a Specified
Subsidiary, as applicable, under this Section 4.15(b) with respect to
consequential damages arising or incurred by the Company or a Specified
Subsidiary, as applicable, in connection with such Bank's failure to make
timely any Advance hereunder.
(c) The failure of any Bank to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Bank of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the Advance to be
made by such other Bank on the date of any Borrowing.
4.16 Termination and Prepayment with Respect to Any Bank. (a)In addition
to the right of the Company to terminate in whole or reduce ratably in part
the respective Commitments of the Banks as described in Section 4.5 and the
right of the Company and each Specified Subsidiary to prepay Syndicated
Advances as described in Section 4.6, the Company shall have the right to
terminate the unused portion of the Commitment of any Bank and to prepay and
cause each Specified Subsidiary to prepay all outstanding Advances made by
such Bank in the manner described in this Section 4.16 if (i) such Bank shall
be an Objecting Bank or (ii) the Company shall have received notice (a
"Special Notice") from such Bank that such Bank (A) cannot extend an Adjusted
CD Rate Advance or a Eurodollar Rate Advance and shall exercise its rights
pursuant to Section 4.11(a), or (B) claims reimbursement for increased costs
pursuant to Section 4.12(a) or reduced returns pursuant to Section 4.12(b), or
(C) claims reimbursement for Taxes pursuant to Section 4.14.
(b) Upon any Bank becoming an Objecting Bank or upon receipt by the
Company of a Special Notice from any Bank, the Company may elect to terminate
the unused portion of the Commitment of such Bank by giving notice thereof
within 30 days thereafter (a "Termination Notice") to such Bank specifying
therein (i) the name of such Bank ("Terminated Bank"), (ii) the proposed
effective date of termination ("Bank Termination Date") of the unused portion
of such Terminated Bank's Commitment, which date shall not in any event be
less than five Business Days following the date of such Termination Notice,
(iii) one or more commercial banks (each, a "Successor Bank"), each such
Successor Bank having a combined capital, surplus (or its equivalent) and
undivided profits in an amount not less than U.S. $500,000,000 (or its
equivalent in another currency), which Successor Bank or Successor Banks shall
have agreed, in the aggregate, to succeed to the entire Commitment of such
Terminated Bank on the Bank Termination Date, and (iv) whether the Company or
a Specified Subsidiary, as applicable, shall, on the Bank Termination Date,
prepay all the outstanding Advances made by such Terminated Bank.
(c) Unless the Company shall have elected, as evidenced by its Termination
Notice, to prepay and cause each Specified Subsidiary to prepay all the
Advances made by a Terminated Bank outstanding as of the Bank Termination
Date, any Advance made by such Terminating Bank constituting a Base Rate
Advance or having an Interest Period ending on the Bank Termination Date shall
be paid on the Bank Termination Date and any other Advance made by such
Terminated Bank shall remain outstanding until the last day of the Interest
Period therefor or until otherwise required to be paid in accordance with the
terms of this Agreement (including the provisions of Section 4.6). The
Successor Bank or Successor Banks specified by the Company in a Termination
Notice shall have agreed, prior to the Bank Termination Date, to succeed, in
the aggregate, to the entire Commitment of such Terminated Bank on the Bank
Termination Date which succession shall, with respect to the unused portion of
such Terminated Bank's Commitment as of such Bank Termination Date, become
effective as of the Bank Termination Date and, with respect to the remaining
portion of such Terminated Bank's Commitment, become effective as and when
such Terminated Bank's Advances are repaid.
(d) If the Company shall have elected, as evidenced by its Termination
Notice, to prepay and cause each Specified Subsidiary to prepay all the
Advances made by a Terminated Bank outstanding as of the Bank Termination
Date, the Successor Bank or Successor Banks shall in the aggregate extend to
the Company and its Specified Subsidiaries, as applicable, on the Bank
Termination Date, Advances (with interest at a rate to be agreed upon by the
Company and each Successor Bank) corresponding in respective amounts to each
Advance being prepaid as of such date, each of which Advances shall have an
Interest Period beginning on the Bank Termination Date and ending on the last
day of the Interest Period of the Advance being prepaid to which it
corresponds; provided that, upon the mutual agreement of the Company and the
Successor Bank (or Successor Banks, as applicable), the Company may elect not
to require the Successor Bank (or Successor Banks, as applicable) to extend
Competitive Bid Advances in substitution for the Competitive Bid Advances
extended by the Terminated Bank.
(e) Each such termination pursuant to this Section 4.16 shall be effective
on the Bank Termination Date proposed by the Company in the related
Termination Notice if (i) no Event of Default shall have occurred prior to
such date and be continuing on such date, (ii) in the event the Company shall
have elected to prepay and cause each Specified Subsidiary to prepay all
Advances made by such Terminated Bank outstanding as of such date, (A) the
Company and such Specified Subsidiary shall have prepaid the outstanding
aggregate amount of all Advances made by the Terminated Bank, together with
accrued interest to such date on the amount prepaid and all other amounts
payable to such Bank as of such date and (B) the Successor Bank or Successor
Banks shall have extended to the Company or such Specified Subsidiary Advances
equal in aggregate amount to the Advances of the Terminated Bank being prepaid
as required pursuant to Section 4.16(d), and (iii) each Bank shall have
received evidence that the Successor Bank or Successor Banks shall have agreed
in the aggregate to succeed to the entire Commitment of the Terminated Bank in
accordance with this Section 4.16.
(f) Subject to subsection (e) above, on the Bank Termination Date, (i)
each Successor Bank, upon execution of an agreement with the Company
substantially in the form of Exhibit 4.16(f) attached hereto, shall become a
party to this Agreement as if such Successor Bank shall have been named on the
signature pages hereof, and such Successor Bank shall have all the rights and
obligations of a "Bank" hereunder and (ii) the Terminated Bank shall have no
further Commitment under this Agreement and shall no longer be a "Bank" under
this Agreement for any purpose (other than in each case with respect to
Advances made by such Bank which remain outstanding after such date) except
insofar as it shall be entitled to any payment or indemnification, or be
obligated to make any indemnification (including, without limitation, pursuant
to Section 4.15(b)), on account of any event which shall have occurred, or any
right or liability which shall have arisen, on or prior to the date of
repayment of such outstanding Advances. The termination of any Bank's
Commitment and the prepayment of such Bank's Advances pursuant to this Section
4.16 shall not relieve or satisfy the obligations of the Company or a
Specified Subsidiary, as applicable, to make any such prepayments free and
clear of all Taxes, to reimburse such Bank for all increased costs pursuant to
Section 4.12, or to comply with all other terms and conditions of this
Agreement (including, without limitation, Section 10.4). A Successor Bank
shall be subject to the Syndicated Reduction (or, in the case of more than one
Successor Bank, its ratable share of the Syndicated Reduction) of the
Terminated Bank it succeeds upon the Bank Termination Date applicable to such
successor.
4.17 Extensions of the Termination Date. (a) The Termination Date shall be
extended by an additional year if (i) the Company shall deliver a notice in
writing to each Bank by October 31, 1993 or October 31 of any subsequent year
(if the Termination Date has been previously extended), requesting that the
Termination Date be December 31 of the third following year and (ii) by
November 30, 1993 or November 30 of any subsequent year (if the Termination
Date has been previously extended), the Majority Banks have notified the
Company in writing that they agree to the requested extension. Failure on the
part of any Bank to respond to any such request shall be deemed to be a denial
of such request by such Bank and, with respect to any such Bank and any Banks
which shall have denied such request in writing (each such Bank being referred
to herein as an "Objecting Bank"), the Termination Date shall, subject to
Section 4.16, continue to be the then existing Termination Date. If the
Majority Banks have not agreed to the requested extension, the Termination
Date as to all of the Banks shall continue to be the then-existing Termination
Date.
(b) Any Objecting Bank, the Commitment of which shall expire prior to any
extended Termination Date, shall, subject to Section 4.16, have its Advances
paid in full by the Company or a Specified Subsidiary, as applicable, on the
then-existing Termination Date, together with accrued interest thereon, and
shall have any accrued and unpaid commitment fee or other amounts payable to
it hereunder paid on such Termination Date.
ARTICLE V
CONDITIONS TO BORROWING
The obligation of each Bank to make an Advance on the occasion of each
Borrowing is subject to the satisfaction of the following conditions:
5.1 All Borrowings by the Company. (a)In the case of each Refunding
Borrowing by the Company:
(i) Receipt by the Banks of notice of such Borrowing as required by
Section 2.2 in the case of a Syndicated Borrowing, and satisfaction of the
conditions set forth in sections 3.2 and 3.6 in the case of a Competitive
Bid Borrowing; and
(ii) The fact that, immediately after such Refunding Borrowing, no
Default shall have occurred and be continuing.
Each Refunding Borrowing by the Company hereunder shall be deemed to be a
representation and warranty by the Company on the date of such Refunding
Borrowing as to the fact specified in paragraph (a)(ii) above of this
Section 5.1.
(b) In the case of each Borrowing by the Company which is not a Refunding
Borrowing:
(i) Receipt by the Banks of notice of such Borrowing as required
by Section 2.2 in the case of a Syndicated Borrowing, and satisfaction
of the conditions set forth in Sections 3.2 and 3.6 in the case of a
Competitive Bid Borrowing;
(ii) The fact that, immediately after such Borrowing, no Default shall
have occurred and be continuing; and
(iii) The fact that the representations and warranties of the Company in
Article VI (other than the representation and warranty contained in the
first sentence of Section 6.1(b) which representation and warranty shall
not be made or deemed made in connection with any Borrowing subsequent to
the First Borrowing) shall be true on and as of the date of such Borrowing
(including before and after giving effect to such Borrowing and the
application of the proceeds therefrom).
Each Borrowing by the Company hereunder which is not a Refunding Borrowing
shall be deemed to be a representation and warranty by the Company on the
date of such Borrowing as to the facts specified in paragraphs (b)(ii) and
(b)(iii) above of this Section 5.1.
5.2 Additional Conditions to First Borrowing by the Company. In the case
of the First Borrowing by the Company in addition to the requirements of
Section 5.1 (and, if applicable, Section 5.5), delivery to each of the Banks
of the following:
(a) The Notes payable to the order of the Banks, respectively, executed by
the Company;
(b) Certified copies of the resolutions of the Board of Directors of the
Company approving this Agreement and the Notes, and of all documents
evidencing other necessary corporate action with respect to this Agreement and
the Notes;
(c) A certificate of the Secretary or an Assistant Secretary of the
Company certifying the names and true signatures of the officers of the
Company authorized to sign this Agreement and the Notes and the other
documents or certificates to be delivered pursuant to this Agreement;
(d) A certificate, signed by the chief financial officer of the Company,
stating that (i) on the date of the First Borrowing all conditions to such
Borrowing have been satisfied and that no Default has occurred and is
continuing, and (ii) the representations and warranties contained in Article
VI are correct on and as of the date of such Borrowing as though made on and
as of such date;
(e) A favorable opinion of Charles O. Ziemer, Esq., Senior Vice President
and General Counsel of the Company, substantially in the form of Exhibit
5.2(e) hereto, dated the date of such Borrowing;
(f) A favorable opinion of Mayer, Brown & Platt, special counsel for the
Banks, substantially in the form of Exhibit 5.2(f) hereto;
(g) The certificate of incorporation of the Company, as amended, certified
by the Secretary of State of Delaware as of a date no more than one month
prior to the date of such Borrowing;
(h) A certificate of good standing with respect to the Company, certified
by the Secretary of State of Delaware and Illinois as of a date not more than
one month prior to the date of such Borrowing; and
(i) A copy, certified by the Secretary or Assistant Secretary of the
Company, of the Company's by-laws.
5.3 All Borrowings by Specified Subsidiaries. (a) In the case of each
Refunding Borrowing by a Specified Subsidiary:
(i) Receipt by the Banks of notice of such Borrowing as required by
Section 2.2 in the case of a Syndicated Borrowing, and satisfaction of the
conditions set forth in Sections 3.2 and 3.6 in the case of a Competitive
Bid Borrowing; and
(ii) The fact that, immediately after such Refunding Borrowing, no
Default shall have occurred and be continuing.
Each Refunding Borrowing by a Specified Subsidiary hereunder shall be
deemed to be a representation and warranty by the Company and such
Specified Subsidiary on the date of such Refunding Borrowing as to the
fact specified in paragraph (a)(ii) above of this Section 5.3.
(b) In the case of each Borrowing by a Specified Subsidiary which is not a
Refunding Borrowing:
(i) Receipt by the Banks of notice of such Borrowing as required by
Section 2.2 in the case of a Syndicated Borrowing, and satisfaction of the
conditions set forth in Sections 3.2 and 3.6 in the case of a Competitive
Bid Borrowing;
(ii) The fact that, immediately after such Borrowing, no Default shall
have occurred and be continuing;
(iii) As of the date of such Borrowing and after giving effect thereto,
the aggregate amount of outstanding Permitted Advances to such Specified
Subsidiary shall not exceed the maximum amount of Permitted Advances with
respect to such Specified Subsidiary previously approved by the Majority
Banks pursuant to Sections 1.4(a) and (b) hereof, as such amount may have
been reduced as of such date pursuant to Section 1.4(c), and the aggregate
amount of outstanding Permitted Advances to all Specified Subsidiaries
shall not exceed $100,000,000;
(iv) The fact that the representations and warranties of (A) the
Company set forth in Article VI of this Agreement (other than the
representation and warranty contained in the first sentence of Section
6.1(b)) and (B) such Specified Subsidiary set forth in the applicable
Specified Subsidiary Agreement shall be true and correct on and as of the
date of such Borrowing (including before and giving effect to such
Borrowing and the application of the proceeds therefrom); and
(v) Each Bank shall have received a copy of the written approvals of
the Majority Banks of (A) the initial designation of the proposed
Subsidiary as a Specified Subsidiary pursuant to Section 1.4(a) on or
prior to the date of the First Borrowing by such Specified Subsidiary and,
if applicable, (B) any increase in the maximum amount of Permitted
Advances which may be made to such Specified Subsidiary pursuant to
Section 1.4(b) on or prior to the effective date of such increase.
Each Borrowing by a Specified Subsidiary hereunder shall be deemed to be a
representation and warranty by the Company and such Subsidiary on the date of
such Borrowing as to the facts specified in paragraphs (b)(ii), (b)(iii),
(b)(iv), and (b)(v) above of this Section 5.3.
5.4 Additional Conditions to First Borrowing by Any Specified Subsidiary.
In the case of the First Borrowing by any Specified Subsidiary, in addition to
the requirements of Section 5.3 (and, if applicable, Section 5.5), there shall
have been delivered to each of the Banks each of the following:
(a) A Specified Subsidiary Agreement in the form attached hereto as
Exhibit 1.4(a), duly executed by the Company and such designated Specified
Subsidiary as of such date;
(b) Notes in the forms attached hereto as Exhibits 5.4(b)(1) and
5.4(b)(2), respectively, payable to the order of each of the Banks,
respectively, executed by such Specified Subsidiary;
(c) Certified copies of the resolutions of the Board of Directors of such
Specified Subsidiary approving the Specified Subsidiary Agreement and the
Notes, and of all documents evidencing other necessary corporate action with
respect to its Specified Subsidiary Agreement and its Notes;
(d) A certificate of the Secretary or an Assistant Secretary of such
Specified Subsidiary certifying the names and true signatures of the officers
of such Specified Subsidiary authorized to sign its Specified Subsidiary
Agreement and its Notes and the other documents or certificates to be
delivered pursuant to this Agreement or the Specified Subsidiary Agreement;
(e) A certificate, signed by the chief financial officer of each of the
Company and such Specified Subsidiary, stating that (i) on the date of the
First Borrowing by such Specified Subsidiary, all conditions to such Borrowing
have been satisfied and that no Default has occurred and is continuing, and
(ii) all representations and warranties made in Article VI of this Agreement
and in the applicable Specified Subsidiary Agreement are correct on and as of
the date of such Borrowing as though made on and as of such date;
(f) The certificate of incorporation of such Specified Subsidiary, as
amended, certified by the Secretary of State of its jurisdiction of
qualification as of a date not more than one month prior to the date of such
Borrowing;
(g) A certificate of good standing (or the equivalent thereof customarily
issued by the applicable jurisdiction) with respect to such Specified
Subsidiary, certified by the Secretary of State or equivalent officer of its
jurisdiction of organization as of a date not more than one month prior to the
date of such Borrowing;
(h) A favorable opinion of Charles O. Ziemer, Esq., Senior Vice President
and General Counsel of the Company, substantially in the form of Exhibit
5.4(h) to this Agreement. dated the date of such Borrowing;
(i) A copy, certified by the Secretary or Assistant Secretary of such
Specified Subsidiary, of such Specified Subsidiary's by-laws; and
(j) Copies of the most recent annual unaudited financial statements of
such Specified Subsidiary, together with the most recent quarterly unaudited
financial statements with respect to such Specified Subsidiary, including a
balance sheet, statement of income, and statement of cash flows, in each case
certified as correct and complete by an authorized financial officer of such
Specified Subsidiary.
5.5 First Borrowing. In the case of the First Borrowing by either the
Company or a Specified Subsidiary, delivery to each of the Banks of a
counterpart of a Subsidiary Guaranty in the form attached hereto as Exhibit
5.5 (as amended or otherwise modified from time to time, the "Subsidiary
Guaranty"), executed by sufficient Subsidiaries to cause the Company to be in
compliance with Section 7.18, together with (i) certified copies of
resolutions of the Board of Directors of each such Subsidiary approving the
Subsidiary Guaranty, (ii) certified copies of all documents evidencing other
necessary corporate action on the part of each such Subsidiary with respect to
the Subsidiary Guaranty, and (iii) a certificate of the Secretary or an
Assistant Secretary of each such Subsidiary certifying the names and true
signatures of the officers of such Subsidiary authorized to sign the
Subsidiary Guaranty and any documents to be delivered pursuant thereto.
5.6 All Borrowings Prior to Termination of the 1988 Credit Agreement. In
the case of any Borrowing prior to the date on which the 1988 Credit Agreement
shall have been terminated and all advances thereunder shall have been paid in
full, the Company shall have delivered to each Bank a certificate to the
effect that, after giving effect to such Borrowing (and, if applicable, the
concurrent repayment of outstanding advances under the 1988 Credit Agreement),
the sum of the aggregate principal amount of all Advances plus the aggregate
principal amount of all advances under the 1988 Credit Agreement will not
exceed $300,000,000 (it being understood that prior to or concurrently with
the initial Borrowing, the Company shall have given irrevocable notice
terminating the unused portion of all commitments under the 1988 Credit
Agreement and undertaking to (x) repay at the respective maturity dates all
outstanding advances thereunder and (y) concurrently terminate the
corresponding remaining amount of the commitment thereunder).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to each Bank that:
6.1 Corporate Existence; Subsidiaries. (a) The Company and each
Significant Subsidiary is a corporation duly organized, validly existing, and
in good standing under the laws of its jurisdiction of incorporation and has
all requisite authority and all necessary material licenses and permits to own
its properties and to conduct the business in which it is currently engaged.
(b) Schedule 6.1(b) attached hereto states the name of each of the
Company's Subsidiaries, its jurisdiction of incorporation, and the percentage
of its Voting Stock owned by the Company and/or its Subsidiaries, and
identifies those Subsidiaries which are Significant Subsidiaries. The Company
and each Subsidiary has good and marketable title to all of the shares it
purports to own of the stock of each Subsidiary, free and clear in each case
of any lien with the exception of rights of first refusal granted to certain
minority shareholders in certain Foreign Restricted Subsidiaries. All such
shares have been duly issued and are fully paid and non-assessable.
6.2 Corporate and Governmental Authorization; No Contravention. The
execution, delivery, and performance by the Company of this Agreement and the
Notes are within the Company's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or
filing with, any Governmental Authority, and do not (i) contravene, or
constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or by-laws of the Company, or of any
agreement, indenture, judgment, injunction, order, decree, or other instrument
binding upon the Company or (ii) result in the creation or imposition of any
lien on any property of the Company.
6.3 Binding Effect. This Agreement constitutes a valid and binding
agreement of the Company, and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations
of the Company, in each case enforceable against the Company in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors' rights generally and by general equity
principles (whether enforcement is sought by proceedings in equity or at law).
6.4 Financial Information. (a) The consolidated balance sheet of the
Company and its consolidated Subsidiaries as at December 31, 1991, and the
related consolidated statements of income and cash flows and common
shareholders' investment for the fiscal year then ended, reported on by Arthur
Andersen & Co., copies of which have been delivered to each of the Banks,
present fairly the consolidated financial condition of the Company and its
consolidated subsidiaries as at such date and the consolidated results of
their operations and changes in financial position for the fiscal year then
ended, in conformity with generally accepted accounting principles
consistently applied except as noted therein.
(b) As set forth in the Company's most recent quarterly report as filed
with the Securities and Exchange Commission on Form 10-Q, a copy of which has
been delivered to each of the Banks, the unaudited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at September 30, 1992, and
the related unaudited consolidated statements of income and cash flow for the
nine-month period ended on such date, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at
such date and the consolidated results of their operations for the nine-month
period then ended (subject to normal year-end audit adjustments).
(c) Since December 31, 1991, there has been no Material Adverse Change in
the financial condition or results of operations of the Company and its
consolidated Subsidiaries considered as a whole.
6.5 Litigation. There is no pending or, to the best of the knowledge of
the Company, threatened action or proceeding affecting the Company or any of
its Subsidiaries before any Governmental Authority which could reasonably be
expected to have a Material Adverse Effect on the financial condition or
results of operations of the Company and its consolidated Subsidiaries
considered as a whole or which purports to affect the validity or
enforceability of this Agreement or any Note.
6.6 Taxes. United States Federal income tax returns of the Company and
its Subsidiaries have been examined and closed through the fiscal year ended
December 31, 1985. The Company and its Significant Subsidiaries have filed
all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any of its Significant Subsidiaries, except for taxes and assessments being
contested by the Company in good faith by appropriate proceedings and with
respect to which reserves in conformity with generally accepted accounting
principles have been provided on the books of the Company or its Subsidiaries,
as the case may be. The charges, accruals, and reserves on the books of the
Company and its Significant Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Company, adequate.
6.7 ERISA. The Company and its Subsidiaries have fulfilled their
respective obligations under the minimum funding standards of ERISA and the
Code with respect to each employee pension benefit plan which is covered by
Title IV of ERISA or is subject to the minimum funding standards under Section
412 of the Code. No Reportable Event (as defined in Title IV of ERISA) or any
other event or condition exists which presents a material risk of (i)
termination by the Pension Benefit Guaranty Corporation of any single-employer
plan (as defined in Section 4001(a)(15) of ERISA) providing benefits for
employees of the Company or any Subsidiary and which has an Unfunded Liability
of more than $10,000,000 or (ii) the assessment of withdrawal liability
against the Company or any Subsidiary in connection with any multi-employer
plan (whether under Section 4203 or Section 4205 of ERISA) in excess of
$10,000,000.
6.8 Regulation U. Neither the Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock and
Margin Stock constitutes less than 25% of the Company's consolidated assets.
The proceeds of the Advances will be used by the Company for working capital
and other general corporate purposes; no part of the proceeds of any Advance
hereunder will be used for any purpose which violates the provisions of
Regulation U of the Board of Governors of the Federal Reserve System as now
and from time to time hereafter in effect.
6.9 Not an Investment Company. The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
6.10 No Default. No Default has occurred and is continuing.
6.11 Compliance with Environmental Laws. The Company complies with all
applicable Federal, state, or local laws, statutes, rules, regulations, or
ordinances relating to public health, safety, or the environment (including,
without limitation, those relating to: (a) releases, discharges, emissions,
or disposals to air, water, land, or ground water; (b) to the withdrawal or
use of ground water; (c) to the use, handling, or disposal of polychlorinated
biphenyls (PCB's), asbestos, or urea formaldehyde; (d) to the treatment,
storage, disposal, or management of hazardous substances (including, without
limitation, petroleum, its derivatives, by-products, or other hydrocarbons);
(e) to exposure to toxic, hazardous, or other controlled, prohibited, or
regulated substances; and (f) to the transportation, storage, disposal,
management, or release of gases or liquid substances) the failure to comply
with which could reasonably be expected to have a Material Adverse Effect on
the Company, its consolidated Subsidiaries, their businesses and properties,
considered as a whole.
ARTICLE VII
COVENANTS
The Company agrees that, so long as there is any obligation by any Bank to
make Advances hereunder, any Advance to the Company or a Specified Subsidiary,
as applicable, remains outstanding and unpaid, or any other amount is owing by
the Company or a Specified Subsidiary, as applicable, to any Bank hereunder
(unless the Majority Banks shall otherwise consent in writing):
7.1 Corporate Existence, etc. The Company will preserve and keep in force
and effect, and will cause each Restricted Subsidiary to preserve and keep in
force and effect, its corporate existence and all licenses and permits
necessary to the proper conduct of its business, provided that the foregoing
shall not prevent any transaction permitted by Section 7.12 hereof, and
provided further that the Company may terminate the corporate existence of any
Restricted Subsidiary and any license or permit necessary to the conduct of
its business if in the opinion of the Board of Directors of the Company such
existence or the maintenance of such license or permit is no longer in the
best interest of the Company and is not prejudicial to the interests of the
Banks hereunder.
7.2 Insurance. The Company will maintain, and will cause each Restricted
Subsidiary to maintain, insurance coverage by financially sound and reputable
insurers in such forms and amounts and against such risks as are customary for
corporations of established reputation engaged in the same or a similar
business and owning and operating similar properties.
7.3 Taxes, Claims for Labor and Materials, Compliance with Laws. The
Company will promptly pay and discharge, and will cause each Restricted
Subsidiary promptly to pay and discharge, all lawful taxes, assessments, and
governmental charges or levies imposed upon the Company or such Restricted
Subsidiary, respectively, or upon or in respect of all or any material part of
the property or business of the Company of such Restricted Subsidiary, all
trade accounts payable in accordance with usual and customary business terms,
and all claims for work, labor, or materials, which if unpaid might become a
material lien or charge upon any property of the Company or such Restricted
Subsidiary; provided the Company or such Restricted Subsidiary shall not be
required to pay any such tax, assessment, charge, levy, account payable, or
claim if (i) the validity, applicability, or amount thereof is being contested
in good faith by appropriate actions or proceedings which will prevent the
forfeiture or sale of any property of the Company or such Restricted
Subsidiary or any material interference with the use thereof by the Company or
such Restricted Subsidiary, and (ii) the Company or such Restricted Subsidiary
shall set aside on its books, reserves deemed by it, in accordance with
generally accepted accounting principles, to be adequate with respect thereto.
The Company will promptly comply and will cause each Subsidiary to comply with
all laws, ordinances, or governmental rules and regulations to which it is
subject, including without limitation, the Occupational Safety and Health Act
of 1970, ERISA and all laws, ordinances, governmental rules and regulations
relating to environmental protection in all applicable jurisdictions, the
violation of which would have a Material Adverse Effect on the properties,
business, prospects, profits, or condition of the Company and its Subsidiaries
or would result in any material lien or charge upon any property of the
Company or any Subsidiary.
7.4 Maintenance, Etc. The Company will maintain, preserve and keep, and
will cause each Restricted Subsidiary to maintain, preserve and keep, its
properties which are used or useful in the conduct of its business (whether
owned in fee or a leasehold interest) in good repair and working order (so far
as is necessary to the proper conduct of its business) and from time to time
will make all necessary repairs, replacements, renewals, and additions so that
at all times the efficiency thereof shall be maintained.
7.5 Nature of Business. Neither the Company nor any Restricted Subsidiary
will engage in any business if, as a result, the general nature of the
business, taken on a consolidated basis, which would then be engaged in by the
Company and its Restricted Subsidiaries would be substantially changed from
the general nature of the business engaged in by the Company and its
Restricted Subsidiaries on the date of this Agreement.
7.6 Current Ratio. The Company will keep and maintain the ratio of
Consolidated Current Assets to Consolidated Current Liabilities as at the end
of each quarterly fiscal period of the Company at not less than 1.20 to 1.
7.7 Consolidated Tangible Net Worth. The Company will at all times keep
and maintain Consolidated Tangible Net Worth at an amount not less than
$600,000,000.
7.8 Limitations on Debt. (a)The Company will not and will not permit any
Restricted Subsidiary to create, assume, or incur or in any manner be or
become liable in respect of any Funded Debt, except:
(i) the Notes;
(ii) Funded Debt of the Company and its Restricted Subsidiaries
outstanding as of the date of this Agreement and described on Schedule 7.8
attached hereto;
(iii) unsecured Funded Debt of the Company and its Restricted
Subsidiaries, provided, that at the time of issuance thereof and after
giving effect thereto and the application of the proceeds thereof:
(1) Consolidated Funded Debt shall not exceed 50% of Total
Capitalization;
(2) in the case of unsecured Funded Debt of U.S. Restricted
Subsidiaries, the unsecured Funded Debt of such Restricted Subsidiaries
shall not exceed 5% of Consolidated Tangible Net Worth;and
(3) the unsecured Funded Debt of all Restricted Subsidiaries shall
not exceed 15% of Consolidated Tangible Net Worth (for purposes of
calculations under this Section 7.8(a)(iii)(3), unsecured Funded Debt of
Liquid Carbonic, Inc. from time to time outstanding in an amount up to
$25,000,000 (Canadian) shall be excluded).
(iv) secured Funded Debt of the Company and its Restricted Subsidiaries
secured by liens permitted by Sections 7.9(h), (i), and (j) provided that
at the time of issuance thereof and after giving effect thereto and to the
application of the proceeds thereof, Consolidate Funded Debt shall not
exceed 50% of Total Capitalization; and
(v) Funded Debt of a Restricted Subsidiary to the Company or to an 80%
owned Restricted Subsidiary.
(b) Any corporation which becomes a Restricted Subsidiary after the date
of this Agreement shall for all purposes of this Section 7.8 be deemed to have
created, assumed, or incurred at the time it becomes a Restricted Subsidiary
all Debt of such corporation existing immediately after it becomes a
Restricted Subsidiary.
7.9 Limitation on Liens. The Company will not, and will not permit any
Restricted Subsidiary to, create or incur, or suffer to be incurred or to
exist, any mortgage, pledge, security interest, encumbrance, lien, or charge
of any kind on its or their property or assets, whether now owned or hereafter
acquired, or upon any income or profits therefrom, or transfer any property
for the purpose of subjecting the same to the payment of obligations in
priority to the payment of its or their general creditors, or acquire or agree
to acquire, or permit any Restricted Subsidiary to acquire, any property or
assets upon conditional sales agreements or other title retention devices,
unless, in the case of any lien securing Indebtedness, the Notes shall be
secured equally and ratably with, or prior to, any such Indebtedness in a
manner reasonably satisfactory to the Majority Banks, provided, however, that
the foregoing restrictions shall not apply to the following liens which are
permitted:
(a) liens for property taxes and assessments or governmental charges or
levies and liens securing claims or demands of mechanics and materialmen,
provided that payment thereof is not at the time required by Section 7.3;
(b) liens of or resulting from any judgment or award, the time for the
appeal or petition for rehearing of which shall not have expired, or in
respect of which the Company or a Restricted Subsidiary shall at any time in
good faith be prosecuting an appeal or proceeding for a review and in respect
of which a stay of execution pending such appeal or proceeding for review
shall have been secured;
(c) liens, charges, encumbrances, and priority claims incidental to the
conduct of business or the ownership of properties and assets (including
warehousemen's and attorneys' liens and statutory landlords' liens) and
deposits, pledges, or liens to secure the performance of bids, tenders, or
trade contracts, or to secure statutory obligations, surety, or appeal bonds
or other liens of like general nature incurred in the ordinary course of
business and not in connection with the borrowing of money, provided in each
case, the obligation secured is not overdue or, if overdue, is being contested
in good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements, or
reservations, or rights of others for rights-of-way, utilities, and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Company and its Restricted Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair their use in the
operation of the business of the Company and its Restricted Subsidiaries;
(e) pledges or deposits for the purpose of securing a stay or discharge in
the course of any legal proceedings provided that the payment or performance
thereof is not at the time required by Section 7.3 and the aggregate amount of
said deposits does not exceed $5,000,000;
(f) mortgages, liens, or security interests securing Indebtedness of a
Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(g) mortgages, conditional sale contracts, security interests or other
arrangements for the retention of title (including Capitalized Leases)
existing (or committed for) as of the date of this Agreement, securing Funded
Debt of the Company or any Restricted Subsidiary outstanding on such date and
described on Schedule 7.8 attached hereto;
(h) mortgages, conditional sale contracts, security interests, or other
arrangements for the retention of title (including Capitalized Leases)
incurred after the date of this Agreement given to secure the payment of the
purchase price incurred in connection with the acquisition of, or the costs of
improvement of, fixed assets useful and intended to be used in carrying on the
business of the Company or a Restricted Subsidiary, including liens existing
on such fixed assets at the time of acquisition thereof or at the time of
acquisition by the Company or a Restricted Subsidiary of any business entity
then owning such fixed assets, whether or not such existing liens were given
to secure the payment of the purchase price of the fixed assets to which they
attach so long as they were not incurred, extended, or renewed in
contemplation of such acquisition, provided that (i) the lien or charge shall
attach solely to the property acquired or improved, (ii) at the time of the
completion of such acquisition or improvement of such fixed assets, the
aggregate amount remaining unpaid on all Debt secured by liens on such fixed
assets whether or not assumed by the Company or a Restricted Subsidiary shall
not exceed an amount equal to the lesser of the total purchase price or 90% of
the fair market value at the time of acquisition or improvement of such fixed
assets (as determined in good faith by the Board of Directors of the Company),
(iii) all such Debt shall be payable in equal monthly, quarterly, semiannual,
or annual installments of principal and interest not callable at the lender's
option for reasons unrelated to the creditworthiness of the Company or such
Restricted Subsidiary or the destruction of the collateral for such Debt, and
(iv) all such Indebtedness shall have been incurred within the applicable
limitations provided in Section 7.8;
(i) liens in addition to the liens permitted by the preceding clauses (a)
through (h) hereof, provided that (i) all Debt secured by such liens at any
one time outstanding shall not exceed 2% of Consolidated Tangible Net Worth
and (ii) all such Debt shall have been incurred within the applicable
limitations provided in Section 7.8; and
(j) any extension, renewal, or replacement of any lien permitted by
Sections 7.9(g) through (i), in respect of the same property theretofore
subject to such lien, incurred in connection with the extension, renewal, or
refunding of the Indebtedness secured thereby which is permitted by the
limitations contained in Section 7.8, provided that the principal amount of
the Indebtedness secured thereby is not increased and such lien is not
extended to any other property of the Company or any Restricted Subsidiary.
7.10 Dividends, Stock Purchases. The Company will not except as
hereinafter provided:
(a) declare or pay any dividends, either in cash or property, on any
shares of its capital stock of any class (except dividends or other
distributions payable solely in shares of capital stock of the Company); or
(b) directly or indirectly, or through any Subsidiary, purchase, redeem,
or retire any shares of its capital stock of any class or any warrants,
rights, or options to purchase or acquire any shares of its capital stock
(other than in exchange for or out of the net proceeds to the Company from the
substantially concurrent issue or sale of other shares of capital stock of the
Company or warrants, rights, or options to purchase or acquire any shares of
its capital stock); or
(c) make any other payment or distribution, either directly or indirectly
or through any Subsidiary, in respect of its capital stock; or
(d) make any Optional Plan Contribution;
(such declarations or payments of dividends, purchases, redemptions, or
retirements of capital stock and warrants, rights, or options, and all such
other distributions, and additional payments or contributions to the ESOP
being herein collectively called "Restricted Payments"), if after giving
effect thereto the aggregate amount of Restricted Payments made during the
period from and after June 30, 1992, to and including the date of the making
of the Restricted Payment in question, would exceed the sum of (i)
$289,226,000 plus (ii) 50% of Consolidated Net Income for such period,
computed on a cumulative basis for said entire period (or if such Consolidated
Net Income is a deficit figure, then minus 100% of such deficit), plus (iii)
the net proceeds received by the Company after June 30, 1992, in cash or cash
equivalents from the sale or issuance of additional shares of capital stock of
the Company.
The Company will not declare any dividend which constitutes a Restricted
Payment payable more than 90 days after the date of declaration thereof.
The Company will not declare any dividend or make any other Restricted
Payment unless at the time of such declaration or the making of such payment
(i) no Default shall exist, and (ii) the Company shall be able to incur $1.00
of Funded Debt pursuant to Section 7.8(a)(iii).
Notwithstanding the foregoing provisions of this Section 7.10, the Company
may declare and pay dividends on shares of its Convertible Voting Preferred
Stock, Series C, to the extent that such dividends are used to make optional
or mandatory payments on the ESOP Loan if such payments are applied to the
ESOP Loan.
For the purposes of this Section 7.10, the amount of any Restricted
Payment declared, paid, or distributed in property of the Company shall be
deemed to be the greater of the book value or fair market value (as determined
in good faith by the Board of Directors of the Company) of such property at
the time of the making of the Restricted Payment in question.
7.11 Sale and Leasebacks. The Company will not, and will not permit any
Restricted Subsidiary to, enter into any arrangement whereby the Company or
any Restricted Subsidiary shall sell or transfer any property owned by the
Company or any Restricted Subsidiary to any Person (other than the Company or
any Restricted Subsidiary) and thereafter lease as lessee, the same property,
provided, however, that:
(a) the limitations set forth in this Section 7.11 shall not apply to any
property which has been sold and leased back within 12 months after the date
of acquisition by the Company or any Restricted Subsidiary; and
(b) the Company or a Restricted Subsidiary may engage in the sale and
leaseback of any property so long as the book value of such property together
with the book value of all other assets disposed of by the Company and its
Restricted Subsidiaries (i) during the 12 month period immediately preceding
such proposed disposition (other than property which is sold in a sale and
leaseback permitted by Section 7.12(a)(iii)) shall not constitute a
substantial part (as defined in Section 7.12(c)) of the assets of the Company
determined as of the end of the immediately preceding fiscal year and (ii)
during the 48 month period immediately preceding such proposed disposition
shall not exceed 25% of Consolidated Tangible Assets determined as of the end
of the immediately preceding year.
7.12 Mergers, Consolidations and Sales of Assets. (a) The Company will
not, and will not permit any Restricted Subsidiary to (i) consolidate with or
be a party to a merger with any other corporation or (ii) sell, lease, or
otherwise dispose of all or any substantial part of the assets of the Company
and its Restricted Subsidiaries (as hereinafter defined in this Section 7.12),
provided, however, that:
(1) any Restricted Subsidiary may merge or consolidate with or into
the Company or any Wholly-owned Restricted Subsidiary so long as in any
merger or consolidation involving the Company, the Company shall be the
surviving or continuing corporation;
(2) the Company may consolidate or merge with any other corporation if
(i) the corporation which results from such consolidation or merger (the
"surviving corporation") is organized under the laws of the United States
or any State thereof, (ii) the due and punctual payment of the principal
of and interest on all of the Notes and all other amounts payable by the
Company under this Agreement, and the due and punctual performance and
observance of all of the covenants in the Notes and this Agreement to be
performed or observed by the Company, are expressly assumed in writing by
the surviving corporation, (iii) at the time of such consolidation or
merger and after giving effect thereto no Default shall have occurred and
be continuing, and (iv) after giving effect to such consolidation or
merger the surviving corporation would be permitted to incur at least
$1.00 of additional Funded Debt under the provisions of Section
7.8(a)(iii);
(3) any Restricted Subsidiary may sell, lease, or otherwise dispose of
all or any substantial part of its assets to the Company or any Restricted
Subsidiary in which the percentage of Voting Stock then owned by the
Company and/or any Restricted Subsidiary is at least equal to the
percentage of Voting Stock of the Restricted Subsidiary making such sale,
lease, or other disposition then owned by the Company and/or any
Restricted Subsidiary; and
(4) the Company or any Restricted Subsidiary may sell, lease or
otherwise dispose of assets in accordance with the provisions of Sections
7.12(b) and (c), so long as in the case of any issuance or sale of any
stock under Section 7.12(b), such issuance or sale together with the sale,
lease, or other disposition of assets of the Company and its Restricted
Subsidiaries during the applicable period shall not constitute a
substantial part of the assets of the Company and its Restricted
Subsidiaries.
(b) The Company will not permit any Restricted Subsidiary to issue or sell
any shares of stock of any class (including as "stock" for the purposes of
this Section 7.12 , any warrants, rights, or options to purchase or otherwise
acquire stock or other Securities exchangeable for or convertible into stock)
of such Restricted Subsidiary to any Person other than the Company or a
Restricted Subsidiary unless (i) after giving effect thereto, no Default shall
have occurred and be continuing and (ii) at the time of such issuance or sale
and after giving effect thereto the Company shall be able to incur $1.00 of
additional Funded Debt pursuant to Section 7.8(a)(iii).
(c) In connection with any sales or other dispositions of Investment
Assets, an amount equal to the net proceeds derived from such sales or other
dispositions shall be applied within 360 days after such sale or disposition
to either (i) the payment or prepayment of senior Funded Debt of the Company,
or (ii) the acquisition of operating assets by the Company or Restricted
Subsidiary in a business substantially similar to the businesses conducted by
the Company and its Restricted Subsidiaries on the date of this Agreement.
Prior to application of such proceeds in accordance with the provisions of
this Section 7.12(c), such proceeds shall be held in a segregated account in a
bank or financial institution having capital and surplus in excess of
$250,000,000 and shall be invested only in Qualified Investments.
As used in this Section 7.12, a sale, lease, or other disposition of
assets shall be deemed to be a "substantial part" of the assets of the Company
and its Restricted Subsidiaries only if (x) the book value of such assets when
added to the book value of all other assets sold, leased, or otherwise
disposed of by the Company and its Restricted Subsidiaries (including property
disposed of in a sale and leaseback transaction permitted solely by Section
7.11(b)) during the preceding 12 consecutive months, exceeds 10% of the
Consolidated Tangible Assets of the Company and its Restricted Subsidiaries
determined as of the end of the immediately preceding fiscal year or (y) the
Adjusted Operating Earnings attributable to such asset together with the
Adjusted Operating Earnings of all other assets disposed of during the
preceding 12 consecutive months shall have exceeded 15% of the average
Consolidated Adjusted Operating Earnings of the Company for the immediately
preceding three fiscal years prior to such disposition. For purposes of
computations under this Section 7.12(c), there shall be included in the
computation of sales or other dispositions hereunder the sale or other
disposition of stock of any Restricted Subsidiary owned by the Company and/or
any Restricted Subsidiary and the issuance and sale by any Restricted
Subsidiary of its stock to any Person other than the Company or another
Restricted Subsidiary. For purposes of computations under this Section 7.12,
there shall be excluded from the computation of sales or other dispositions
hereunder (i) sales of products in the ordinary course of business, (ii) sales
or other realizations on delinquent receivables, (iii) the same or factoring
of any other receivable in the ordinary course of business for an amount not
less than the fair market value of such receivable and without recourse to the
Company or any Restricted Subsidiary, and (iv) subject to the limitations set
forth in (c) above, Investment Assets.
7.13 Guaranties. The Company will not and will not permit any Restricted
Subsidiary to become or be liable in respect of any Guaranty except (i)
Guaranties of the Company and Restricted Subsidiaries which are limited in
amount to a stated maximum dollar exposure and included in Consolidated Funded
Debt or Consolidated Current Liabilities, (ii) Guaranties of the Company and
Restricted Subsidiaries of obligations incurred by Restricted Subsidiaries in
the ordinary course of business and not involving the incurrence of Debt, and
(iii) Guaranties of the obligations of Specified Subsidiaries by the Company
pursuant to Article XI of this Agreement.
7.14 Investments. The Company will not, and will not permit any
Restricted Subsidiary to, make any Restricted Investment in an amount which,
together with all other Restricted Investments outstanding on the date of
determination hereunder, exceeds 10% of Consolidated Tangible Net Worth of the
Company and its Restricted Subsidiaries determined as of the end of the
immediately preceding fiscal year.
7.15 Transactions with Affiliates. The Company will not, and will not
permit any Restricted Subsidiary to, enter into or be a party to any
transaction or arrangement with any Affiliate (including without limitation,
the purchase from, sale to, or exchange of property with, or the rendering of
any service by or for, any Affiliate), except in the ordinary course of and
pursuant to the reasonable requirements of the Company's or such Restricted
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Restricted Subsidiary than would obtain in a comparable
arm's-length transaction with a Person other than an Affiliate. For purposes
of this Section 7.15, the enhanced share repurchase program of the Company and
the put option of the Trustee referred to in Section 7.2 of the ESOP shall be
deemed to be a transaction in the ordinary course of business.
7.16 Plan Termination. The Company will not and will not permit any
Subsidiary to permit any employee benefit plan maintained by it to be
terminated in a manner which could result in the imposition of a material lien
on any property of the Company or any Subsidiary pursuant to Section 4068 of
ERISA.
7.17 Reports and Rights of Inspection. The Company will keep, and will
cause each Subsidiary to keep, proper books of record and account in which
full and correct entries will be made of all dealings or transactions of or in
relation to the business and affairs of the Company or such Subsidiary, in
accordance with generally accepted principles of accounting consistently
maintained (except for changes disclosed in the financial statements furnished
to the Banks pursuant to this Section 7.17 and concurred in by the independent
public accountants referred to in Section 7.17(b) hereof), and will deliver to
each of the Banks:
(a) As soon as available and in any event within 60 days after the end of
each quarterly fiscal period (except the last) of each fiscal year, (i)
consolidated balance sheets of the Company and its Restricted Subsidiaries as
of the close of such quarter setting forth in comparative form the amount for
the end of the immediately preceding fiscal year, (ii) consolidated statements
of income and retained earnings of the Company and its Restricted Subsidiaries
for such quarterly period, setting forth in comparative form the amount for
the corresponding period of the preceding fiscal year, and (iii) consolidated
statements of cash flows of the Company and its Restricted Subsidiaries for
the portion of the fiscal year ending with such quarter, setting forth in
comparative form the amount for the corresponding period of the preceding
fiscal year, all in reasonable detail and certified as complete and correct,
by an authorized financial officer of the Company;
(b) As soon as available and in any event within 120 days after the close
of each fiscal year of the Company (i) consolidated and consolidating balance
sheets of the Company and its Restricted Subsidiaries as of the close of such
fiscal year, and (ii) consolidated and consolidating statements of income and
retained earnings and statements of cash flows of the Company and its
Restricted Subsidiaries for such fiscal year, in each case setting forth in
comparative form the consolidated figures for the preceding fiscal year, all
in reasonable detail and accompanied by an opinion thereon (together with a
letter acknowledging and permitting reliance on such opinion by the Banks) of
a firm of independent public accountants of recognized national standing
selected by the Company to the effect that the consolidated financial
statements have been prepared in accordance with generally accepted accounting
principles consistently applied (except for changes in application in which
such accountants concur) and present fairly the financial condition of the
Company and its Restricted Subsidiaries and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards and accordingly,
includes such tests of the accounting records and such other auditing
procedures as were considered necessary in the circumstances; provided that in
the event the opinion of accountants customarily delivered in connection with
presentation of audited financial statements without qualification shall have
been modified in accordance with applicable standards of the accounting
profession, then the opinion of such accountants may be modified to correspond
to the opinion customarily rendered without qualification by such accountants;
(c) Promptly upon their becoming available, a copy of each financial
statement, report, notice, or proxy statement sent by the Company to
stockholders generally and of each regular or periodic report, and any
registration statement or prospectus (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) filed by the Company or
any Subsidiary with any securities exchange or the Securities and Exchange
Commission or any successor agency;
(d) Promptly after an executive officer of the Company shall have
knowledge thereof, notice of any threatened or pending litigation or any order
in any proceeding to which the Company or any of its Restricted Subsidiaries
is a part issued by any Governmental Authority having jurisdiction over the
Company or any of its Restricted Subsidiaries which could have a Material
Adverse Effect on the business and properties of the Company and its
Restricted Subsidiaries on a consolidated basis;
(e) Within the periods provided in paragraphs (a) and (b) above, a
certificate of the chief financial officer of the Company stating that he has
reviewed the provisions of this Agreement and setting forth: (i) the
information and computations (in sufficient detail) required in order to
establish whether the Company was in compliance with the requirements of
Sections 7.6 through 7.14, inclusive, at the end of the period covered by the
financial statements then being furnished, and (ii) whether there existed as
of the date of such financial statements and whether there exists on the date
of the certificate or existed at any time during the period covered by such
financial statements any Default and, if any such condition or event exists on
the date of the certificate, specifying the nature and period of existence
thereof and the action the Company is taking or proposes to take with respect
thereto;
(f) Within the period provided in paragraph (b) above, a certificate of
the accountants who render an opinion with respect to such financial
statements, stating that they have reviewed this Agreement and stating
further, whether in making their audit, such accountants have become aware of
any Default under any of the terms or provisions of this Agreement insofar as
any such terms or provisions pertain to or involve accounting matters or
determinations, and if any such condition or event then exists, specifying
the nature and period of existence thereof;
(g) Within five Business Days after the Company shall have obtained
knowledge of the occurrence of a Default, the written statement of the chief
financial officer, chief operating officer, or chief executive officer of the
Company setting forth the details of such Default which has occurred and is
continuing and the action which the Company proposes to take with respect
thereto;
(h) With reasonable promptness, such other data and information as each
Bank may reasonably request.
Without limiting the foregoing, the Company will permit representatives of any
Bank at such Bank's expense to visit and inspect, under the Company's
guidance, any of the properties of the Company or any Subsidiary, to examine
all their books of account and records, to make copies and extracts therefrom,
and to discuss their respective affairs, finances, and accounts with their
respective officers, employees, and independent public accountants (and by
this provision the Company authorizes said accountants to discuss with
representatives of such Bank the finances and affairs of the Company and its
Subsidiaries), all at such reasonable times and as often as may be reasonably
requested. Any non-public information obtained under this Section 7.17 shall
be held confidential among the Banks, subject to disclosures required by or
pursuant to applicable law or regulation or to any assignee, participant,
prospective assignee, or prospective participant. Each Bank shall notify the
Company before it so discloses any non-public information (unless such
notification is prohibited by law or judicial process or such disclosure is in
connection with an examination or audit of such Bank's books and records).
7.18 Subsidiary Guaranty. The Company will at all times cause the
obligations of the Company hereunder to be unconditionally guaranteed by the
Subsidiaries listed in Exhibit 7.18 holding not less than 80% of the aggregate
amount of the cash, cash equivalents, inventory, receivables, property, plant
and equipment held by Subsidiaries incorporated in a state of, or conducting
substantially all of their respective operations in, the United States, all
pursuant to the Subsidiary Guaranty.
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Events of Default. If one or more of the following events ("Events of
Default") shall have occurred and be continuing:
(a) The Company or a Specified Subsidiary, as applicable, shall fail to
pay any amount of principal of any Note when due, or the Company or a
Specified Subsidiary, as applicable, shall fail to pay any installment of
interest on any Note or any commitment fee pursuant to Section 4.4 within five
days after the same becomes due; or
(b) The Company shall fail to observe or perform any covenant contained in
Sections 7.6 through 7.16 hereof, inclusive; or
(c) The Company shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those referred to in paragraph (a) or
(b) above) for 30 days after written notice thereof has been given to the
Company by any Bank; or
(d) Any representation, warranty, certification, or statement made by the
Company or a Specified Subsidiary, as applicable, in this Agreement or in any
certificate, financial statement, or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect when made
(or deemed made); or
(e) The Company or any of its Subsidiaries shall fail to make any payment
in respect of any Indebtedness for borrowed money (other than the Notes)
aggregating in excess of $5,000,000 when due or within any applicable grace
period; or any event or condition shall occur which results in the
acceleration of the maturity of any Indebtedness for borrowed money of the
Company or any of its Subsidiaries aggregating in excess of $5,000,000 or
enables (or, with the giving of notice or lapse of time or both, would enable)
the holder of such Indebtedness for borrowed money or any person acting on
such holder's behalf to accelerate the maturity thereof; or
(f) The Company or any of its Significant Subsidiaries shall commence a
voluntary case or other proceeding seeking liquidation, reorganization, or
other relief with respect to itself or its debts under any bankruptcy,
insolvency, or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian, or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(g) An involuntary case or other proceeding shall be commenced against the
Company or any of its Significant Subsidiaries seeking liquidation,
reorganization, or other relief with respect to it or its debts under any
bankruptcy, insolvency, or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian, or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for
a period of 60 days; or an order for relief shall be entered against the
Company or any of its Significant Subsidiaries under the Federal bankruptcy
laws as now or hereafter in effect; or
(h) A judgement or order for the payment of money in excess of U.S.
$2,000,000 shall be rendered against the Company or any of its Subsidiaries
and, unless such judgement or order is otherwise being appropriately contested
in good faith, such judgment or order shall continue unsatisfied and unstayed
for a period of 30 days; or
(i) A Change of Control shall have occurred and continued in effect for 30
days after written notice thereof has been given to the Company by any Bank;
(j) At any time that any Permitted Advance is outstanding, the guaranty of
the Company set forth in Article XI shall fail to be in full force and effect
or the Company or any Person acting on behalf of the Company shall contest in
any manner the validity or enforceability of such guaranty.
(k) The Subsidiary Guaranty shall fail to be in full force and effect, the
Company shall fail to comply with the covenant set forth in Section 7.18 with
respect to the Subsidiary Guaranty for 5 days after written notice thereof has
been given to the Company by any Bank, or the Company or any Subsidiary or any
Person acting on behalf of the Company or any Subsidiary shall contest in any
manner the validity or enforceability of the Subsidiary Guaranty.
then, in any such event but subject to the next sentence, the Majority Banks
may, by notice to the Company, (i) declare the obligation of the Banks to make
Advances hereunder to be terminated, whereupon the same shall forthwith
terminate, and/or (ii) declare the entire unpaid principal amount of any Notes
held by the Banks, all interest accrued and unpaid thereon and all other
amounts owing under this Agreement to the Banks to be forthwith due and
payable, whereupon such Notes, all such accrued interest, and all such amounts
shall become and be forthwith due and payable to the Banks, without
presentment, demand, protest, or further notice of any kind, all of which are
hereby expressly waived by the Company and each Specified Subsidiary. In the
event of an Event of Default under paragraph (f) or (g) above, (x) the
obligations of the Banks to make Advances shall automatically be terminated
and (y) the Notes, all accrued and unpaid interest thereon and all other
amounts owing under this Agreement shall automatically become and be due and
payable, without presentment, demand, protest, or any notice of any kind, all
of which are hereby expressly waived by the Company and each Specified
Subsidiary.
ARTICLE IX
THE BID ADVANCE AGENT
9.1 Initial Bid Advance Agent. Each Bank agrees that Ibis Investments,
Inc. may act as Bid Advance Agent hereunder until Ibis Investments, Inc.
resigns from such position pursuant to the provisions of Section 9.8. In so
acting, Ibis Investments, Inc. is acting as agent for the Company and the
Specified Subsidiaries, and no Bank shall be responsible for any action or
inaction of Ibis Investments, Inc. under or in connection with this Agreement.
Except for Sections 9.3(i), 9.4 and 9.8, the remaining provisions of this
Section 9 shall not apply to Ibis Investments, Inc., but shall only apply to
any successor Bid Advance Agent which is a Bank.
9.2 Appointment; Delegation of Duties. Each Bank hereby agrees that any
successor Bid Advance Agent appointed pursuant to Section 9.8 may take such
action on behalf of such Bank under the provisions of this Agreement and
exercise such powers and perform such duties as are expressly delegated to the
Bid Advance Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Bid Advance Agent shall not have
any duties or responsibilities except those expressly set forth herein, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist against the Bid Advance Agent. The Bid Advance
Agent may execute any of its duties under this Agreement by or through agents
or attorneys-in-fact and shall be entitled to the advice of counsel concerning
all matters pertaining to such duties. The Bid Advance Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-
fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Bid Advance Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact, or affiliates shall
be (i) liable to any Bank for any action lawfully taken or omitted to be taken
by it or such Person under or in connection with this Agreement (except for
its or such Person's own gross negligence or wilful misconduct), or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations, or warranties made by the Company or a Specified Subsidiary,
as applicable, or any officer thereof contained in this Agreement or in any
certificate, report, statement, or other document referred to or provided for
in, or received by the Bid Advance Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of this Agreement or for any failure of the
Company or a Specified Subsidiary, as applicable, to perform its obligations
hereunder. The Bid Advance Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in this Agreement, or to inspect the properties,
books, or records of the Company or a Specified Subsidiary, as applicable.
9.4 Reliance by Bid Advance Agent. The Bid Advance Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex, or teletype message, statement, order, or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent, or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the Bid
Advance Agent. The Bid Advance Agent shall be fully justified in failing or
refusing to taken any discretionary action under this Agreement unless it
shall first receive such advice or concurrence of the Banks as it deems
appropriate or it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.
9.5 Non-Reliance on Bid Advance Agent and Other Banks. Each Bank
expressly acknowledges that neither the Bid Advance Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact, or affiliates has
made any representations or warranties to it and that no act by the Bid
Advance Agent hereinafter taken, including any individual review of the
affairs of the Company or a Specified Subsidiary, as applicable, shall be
deemed to constitute any representation or warranty by the Bid Advance Agent
to any Bank. Each Bank represents to the Bid Advance Agent that it has,
independently and without reliance upon the Bid Advance Agent or any other
Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial, and other condition and credit-worthiness of
the Company or a Specified Subsidiary, as applicable, and made its own
decision to make its loans hereunder and enter into this Agreement. Each Bank
also represents that it will, independently and without reliance upon the Bid
Advance Agent or any other Bank, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals, and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial, and other
condition and credit-worthiness of the Company or a Specified Subsidiary, as
applicable. Except for notices expressly required to be furnished to the
Banks by the Bid Advance Agent hereunder, the Bid Advance Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, financial, and
other condition of credit-worthiness of the Company or a Specified Subsidiary,
as applicable, including information of a Default or Event of Default, which
may come into the possession of the Bid Advance Agent or any of its officers,
directors, employees, agents, attorneys-in-fact, or affiliates.
9.6 Indemnification. The Banks agree to indemnify the Bid Advance Agent
in its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according to
their respective Commitments in effect on the date of incurrence by the Bid
Advance Agent of an indemnifiable cost hereunder, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgements,
suits, costs, expenses, or disbursements of any kind whatsoever which may at
any time (including without limitation at any time following the payment of
the Advances) be imposed on, incurred by or asserted against the Bid Advance
Agent in any way relating to or arising out of this Agreement, or any
documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Bid Advance Agent
under or in connection with any of the foregoing; provided that no Bank shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgements, suits, costs, expenses, or
disbursements resulting solely from the Bid Advance Agent's gross negligence
or wilful misconduct. The agreements in this Section 9.6 shall survive the
payment of the Advances and all other amounts payable hereunder.
9.7 Agent in Its Individual Capacity. The Bid Advance Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company or a Specified Subsidiary, as applicable, as
though the Bid Advance Agent were not the Bid Advance Agent hereunder. With
respect to its Advances made by it, the Bid Advance Agent shall have the same
rights and powers under this Agreement as any Bank and may exercise the same
as though it were not the Bid Advance Agent, and the terms "Bank" and "Banks"
shall include the Bid Advance Agent in its individual capacity.
9.8 Successor Bid Advance Agent. The Bid Advance Agent may resign as Bid
Advance Agent upon 30 days' notice thereof to the Company and the Banks. The
Bid Advance Agent shall resign as Bid Advance Agent upon 30 days' notice from
the Majority Banks to the Bid Advance Agent and to the Company requesting such
resignation. Further, the Bid Advance Agent shall resign as Bid Advance Agent
upon 30 days' notice from the Company to the Bid Advance Agent and to the
Majority Banks requesting such resignation. If the Bid Advance Agent shall or
shall be notified to resign as Bid Advance Agent under this Agreement, then
the Company shall appoint from among the Banks a successor agent for the Banks
which successor agent shall be approved by the Majority Banks, whereupon, if
such successor agent is willing to accept such appointment, such successor
agent shall succeed to the rights, powers, and duties of the Bid Advance
Agent, and the term "Bid Advance Agent" shall mean such successor agent
effective upon its appointment, and the former Bid Advance Agent's rights,
powers, and duties as Bid Advance Agent shall be terminated, without any other
or further act or deed on the part of such former Bid Advance Agent or any of
the parties to this Agreement. After any retiring Bid Advance Agent's
resignation hereunder as Bid Advance Agent, the provisions of this Article IX
shall to the extent previously applicable to such Bid Advance Agent inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Bid Advance Agent under this Agreement.
Anything contained in this Agreement to the contrary notwithstanding, if a
successor agent is appointed as a result of the resignation of the Bid Advance
Agent pursuant to the second sentence of this Section 9.8, then the costs
incurred by such successor agent (including the reasonable fees of counsel to
such successor agent) in connection with its preparation to perform its
obligations hereunder in such capacity shall be paid by those Banks which
shall have delivered the applicable resignation notice to the Bid Advance
Agent and the Company.
ARTICLE X
MISCELLANEOUS
10.1 Amendments. Subject to the next two sentences, no amendment or
waiver of any provision of this Agreement or any of the Notes, nor consent to
any departure by the Company or a Specified Subsidiary, as applicable,
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No amendment, waiver, or consent shall, unless in writing and signed
by all the Banks, do any of the following: (i) waive any of the conditions
specified in Article V (if and to the extent that the Borrowing which is the
subject of such waiver is not a Refunding Borrowing), (ii) change the
Commitments of the Banks or subject the Banks to any additional obligations,
(iii) change the principal of, or interest on, any of the Notes or any
commitment fees or other amounts payable hereunder, (iv) change any date fixed
for any payment in respect of principal of, or interest on, the Notes or any
commitment fees or other amount payable hereunder, (v) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes,
or the number of Banks, which shall be required for the Banks or any of them
to take any action hereunder, (vi) amend or otherwise modify any provision of
Article XI or release the Company from any of its obligations thereunder,
(vii) amend or otherwise modify any provision of the Subsidiary Guaranty or
release any Subsidiary from its obligations thereunder (except as permitted
hereunder or thereunder), or (viii) amend this Section 10.1. No amendment,
waiver, or consent shall, unless in writing and signed by the Bid Advance
Agent in addition to the Banks required hereinabove to take such action,
affect the rights or duties of the Bid Advance Agent under this Agreement.
10.2 Notices, etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including by
telex, telegram or telecopier) and mailed, certified mail, return receipt
requested, or delivered personally, or delivered by overnight courier service,
if to the Company or a Specified Subsidiary, as applicable, at the address set
forth for the Company on the signature pages hereof; if to the initial Bid
Advance Agent, at the address set forth for the Bid Advance Agent on the
signature pages hereof, and, if any successor Bid Advance Agent is a Bank, at
the Domestic Lending Office specified in its capacity as a Bank; and if to any
Bank, at its Domestic Lending Office, or at such other address as shall be
designated by such party in a written notice to the other parties hereto.
Subject to the next sentence, all such notices and communications shall be
effective, in the case of written notice, when deposited in the mail, postage
prepaid, if mailed, or upon delivery, if delivered personally, or one Business
Day after delivery to the courier, if delivered by overnight courier service,
and, in the case of notice by telex, telegram or telecopier, when sent
addressed as set forth above. All notices and communications pursuant to
Articles II, III, VIII and IX shall not be effective until they are received
by the addressee.
10.3 No Waiver; Cumulative Remedies. No failure on the part of any Bank
to exercise, and no delay in exercising, any right hereunder or under any Note
shall operate as a waiver hereof, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof of the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
10.4 Costs and Expenses; Indemnification. (a) The Company agrees to pay
the reasonable fees and disbursements of Mayer, Brown & Platt as special
counsel to the Banks in connection with the preparation, execution, delivery,
and any amendment of this Agreement, the Notes and the other documents to be
delivered hereunder. The Company further agrees to pay on demand all direct
out-of-pocket losses, and reasonable out-of-pocket expenses, if any (including
reasonable fees and disbursements of counsel, including reasonable staff
counsel costs), of any Bank and of the Bid Advance Agent in connection with
the enforcement (whether by legal proceedings, negotiation or otherwise) of
this Agreement, the Notes and the other documents delivered hereunder.
(b) If, due to payments made by the Company or a Specified Subsidiary, as
applicable, prior to the maturity of the Notes pursuant to Sections 4.6, 4.16
or 8.1 (but excluding prepayments pursuant to Section 4.11(a)), any Bank
receives payments of principal of any Fixed Rate Advance other than on the
last day of the Interest Period for such Advance, the Company or a Specified
Subsidiary, as applicable, shall, upon demand by such Bank, pay to such Bank
any amounts required to compensate such Bank for any additional direct out-of-
pocket losses, costs, or expenses, including, without limitation, any such
loss, cost, or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Bank to fund or maintain such
Advance.
(c) Subject to the next sentence, the Company agrees to indemnify and hold
harmless each Bank and each of their respective directors, officers, and
employees from and against any and all claims, damages, liabilities, and
expenses (including, without limitation, reasonable fees and disbursements of
counsel, including reasonable staff counsel costs) which may be incurred by or
asserted against such Bank or any such director, officer, or employee in
connection with or arising out of any investigation, litigation, or proceeding
(i) related to any transaction or proposed transaction (whether or not
consummated) in which any proceeds of any Borrowing are applied or proposed to
be applied, directly or indirectly, by the Company or a Specified Subsidiary,
as applicable, whether or not such Bank or any such director, officer, or
employee is a party to such transaction or (ii) related to the Company's
entering into this Agreement, or to any actions or omissions of the Company,
any of its Subsidiaries or Affiliates or any of its or their respective
officers, directors, or employees in connection therewith. The Company shall
not be required to indemnify any such indemnified Person from or against any
portion of such claims, damages, liabilities, or expenses (x) arising out of
the gross negligence or willful misconduct of such indemnified Person or (y)
that result from the violation by any Bank of any law or judicial order.
10.5 Right of Set-Off. Upon (i) the occurrence and during the continuance
of any Event of Default and (ii) the acceleration of the Notes pursuant to the
provisions of Section 8.1, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank to or for
the credit or the account of the Company or a Specified Subsidiary, as
applicable, against any and all of the obligations of the Company or a
Specified Subsidiary, as applicable, now or hereafter existing under this
Agreement and the Notes held by such Bank, irrespective of whether or not such
Bank shall have made any demand under this Agreement and such Notes and of
whether or not such obligations may be matured. Each Bank agrees promptly to
notify the Company or a Specified Subsidiary, as applicable, after any such
set-off and application made by such Bank, but the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Bank under this Section 10.5 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
10.6 Sharing of Payments, etc. (a)If on any day that a Pro Rata Sharing
Event (as defined below) is not in effect, the amounts paid by the Company and
the Subsidiaries hereunder or in connection herewith are insufficient to pay
in full all amounts due and payable hereunder on such day, such payments shall
be distributed as follows (notwithstanding that any Bank may make a different
application of any such amount on its books and records): first, to the
payment of the principal of Advances which are then due and payable, ratably
among the Banks in accordance with the aggregate amount of such Advances owed
to each of them; second, to the payment of interest which is then due and
payable in respect of all Advances, ratably among the Banks in accordance with
the aggregate amount of such interest owed to each of them; third, to the
payment of any commitment fees which are then due and payable, ratably among
the Banks in accordance with the aggregate amount of such fees owed to each of
them; and fourth, to the payment of any other amounts which are then due and
payable by the Company or any Subsidiary to any Bank hereunder or in
connection herewith, ratably among the Banks in accordance with the aggregate
amount owed to each of them.
(b) On any day that a Pro Rata Sharing Event is in effect, all amounts
paid by the Company and its Subsidiaries hereunder or in connection herewith
shall be distributed as follows (notwithstanding that any Bank may make a
different application of any such amount on its books and records): first, to
the payment of any accrued and unpaid commitment fees, ratably among the Banks
in accordance with the aggregate amount of such fees owed to each of them;
second, to the payment of principal of and interest accrued on all Advances,
ratably among the Banks in accordance with the aggregate amount of principal
of and interest on the Advances owed to each of them; and third, to the
payment of any other amounts owed by the Company or any Subsidiary hereunder
or in connection herewith, ratably among the Banks according to the aggregate
amount owed to each of them.
(c) If any Bank shall obtain any payment or other recovery (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) hereunder on account of principal of or interest on any Advance, or
any fees or other amounts payable hereunder, in excess of the share of
payments and other recoveries such Bank would have received if such payment or
recovery had been distributed in accordance with the provisions of clauses (a)
and (b) of this Section 10.6, such Bank shall purchase from the other Banks
such participations in the Advances of each other Bank (or other amounts owed
to each other Bank) as shall be necessary to cause the purchasing Bank to
share the excess payment with each other Bank in accordance with the
provisions of clauses (a) and (b) of this Section 10.6; provided, however,
that if all or any portion of the excess payment or other recovery is
thereafter received from such purchasing Bank, the purchase shall be rescinded
and the purchase price restored to the extent of such recovery, but without
interest. The Company agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 10.6 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Bank were the
direct creditor of the Company or a Specified Subsidiary, as applicable, in
the amount of such participation. Nothing contained herein shall require any
Bank to exercise any right it may have of set-off, bankers' lien, counterclaim
or similar right or shall affect the right of any Bank to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Company or a Specified Subsidiary, as
applicable, not evidenced by this Agreement or the Notes. If under any
applicable bankruptcy, insolvency or other similar law, any Bank obtains a
secured claim in lieu of a set-off or other payment to which this Section 10.6
would apply, such Bank shall, to the extent practicable, exercise its rights
in respect of such secured claim in a manner consistent with the rights of the
Banks entitled under this Section 10.6 to share in the benefits of any
recovery of such secured claim.
(d) For purposes of this Section 10.6, a Pro Rata Sharing Event exists
when (i) an Event of Default described in clause (f) or (g) of Section 8.1 has
occurred and is continuing or (ii) any other Event of Default exists and any
Bank has delivered a written notice to the Company (with a copy to each other
Bank), which notice has not been rescinded, declaring that a Pro Rata Sharing
Event exists.
10.7 Binding Effect; Successors and Assigns. (a)This Agreement shall
become effective when it shall have been executed by the Company, the Bid
Advance Agent and each Bank. This Agreement thereafter shall be binding upon
and inure to the benefit of the Company, each Specified Subsidiary, the Bid
Advance Agent, and each Bank and their respective successors and assigns,
except that neither the Company nor any Specified Subsidiary shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of all of the Banks.
(b) Each Bank may, with the prior written consent of the Company, which
consent shall not be unreasonably withheld, assign all or any part of, or
interest in, such Bank's Commitment, rights and obligations hereunder and
under the Notes to one or more institutional lenders or investors, and in such
case such Bank shall be relieved of its obligations hereunder with respect to
all or any such part of its Commitment so assigned. The Company or a
Specified Subsidiary, as applicable, may, for all purposes of this Agreement,
treat any Bank as the holder of any Note drawn to its order (and owner of the
Advances evidenced thereby) until the Company receives (i) written notice of
the assignment thereof signed by such Bank, (ii) the written agreement of the
assignee that such assignee assumes all obligations hereunder and is bound
hereby as it would have been if it had been an original Bank party hereto, and
(iii) the documents from the assignee required pursuant to Section 4.14(b).
Upon consummation of any assignment pursuant to this Section 10.7(b), the
assignor Bank and the Company shall make appropriate arrangements so that, if
required, a replacement Note or Notes is issued to such assignor Bank and a
new Note or Notes, or as appropriate a replacement Note or Notes, is issued to
the assignee, in each case in principal amounts reflecting their resulting
respective interests hereunder.
(c) Each Bank may grant participations in its Commitment, Advances, and
its Notes or any other interest of such Bank hereunder to one or more
institutional lenders or investors. Any agreement pursuant to which any Bank
may grant a participation in its rights with respect to its Commitment or any
particular Advance or Advances shall provide that, with respect to its
Commitment or any such Advance or Advances, such Bank shall retain the sole
right and responsibility to enforce the obligations of the Company or a
Specified Subsidiary, as applicable, relating to its Commitment or such
Advance or Advances including, without limitation, the right to approve any
amendment, modification, or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement without the
consent of the participant that would (i) reduce the rate of interest on such
Advance or Advances or any fees hereunder, or (ii) postpone or extend the date
fixed for any payment of principal of or interest on any such Advance or
Advances or any fees hereunder.
(d) Notwithstanding any other provision of this Agreement, any Bank may at
any time pledge or assign any Note or its rights under this Agreement to any
Federal Reserve Bank without notice to or consent from the Company or any
Specified Subsidiary.
10.8 Contingent Appointment of Agent. If at any time prior to the
Termination Date the Credit Ratings shall fall to BB- (S&P) and Ba3 (Moody's)
or lower in either case, the Company and the Specified Subsidiaries agree that
the Majority Banks may appoint, in writing, one of the Banks as agent (the
"Contingency Agent") for the Banks, which appointment shall be accepted by the
Contingency Agent in writing and shall be reasonably acceptable to the
Company. The Contingency Agent may, but shall not be required to, be a Bank
which is then acting as Bid Advance Agent. The Contingency Agent shall
immediately begin to perform those functions which the Company or a Specified
Subsidiary, as applicable, would otherwise have performed in connection with
providing notifications to the Banks under Section 2.2, determining interest
rates under Section 4.3 and collecting and remitting payments for the account
of the Banks under Section 4.9, shall at the request, or may with the consent,
of the Majority Banks, by notice to the Company, take the actions specified
under Section 8.1 hereof and shall otherwise be authorized to take any action
under this Agreement on behalf of the Banks which it may be directed to take
by the Majority Banks. In the event that a Contingency Agent is appointed
pursuant to this Section 10.8, the Banks agree among themselves (and the
Contingency Agent by its acceptance of its appointment as such agrees) that
the provisions set forth in Exhibit 10.8 hereto shall automatically become a
part of this Agreement as if fully set forth in this place. The Company
agrees to pay the expenses of and indemnify the Contingency Agent to the same
extent as it has agreed to do with respect to the Bid Advance Agent under
Section 10.4.
10.9 Participation in Unfriendly Takeovers. Each Bank shall be given
notice by the Company at least 10 Business Days prior to the date on which the
Company intends to use the proceeds from any Advance to finance in whole or in
part an Unfriendly Takeover. Each Bank shall then have five Business Days
after receipt of the notice from the Company within which to give written
notice to the Company that it declines to participate in the financing of such
Unfriendly Takeover (a "Declining Bank"). Any Bank failing to give such
written notice within the specified time period shall automatically be deemed
to be a Declining Bank with respect to that Unfriendly Takeover (unless such
Bank subsequently notifies the Company in writing that it is willing to
participate in that Unfriendly Takeover). Notwithstanding anything in this
Agreement to the contrary, the Company shall not request any Declining Bank,
and no Declining Bank shall be required, to make any Advance the proceeds of
which will be used directly or indirectly to finance in whole or in part an
Unfriendly Takeover. Any provision of this Agreement which would otherwise
require ratable or pro-rata treatment of the Banks shall not be deemed to
include a Declining Bank with respect to any Advance made to finance in whole
or in part an Unfriendly Takeover. "Unfriendly Takeover" shall mean the
acquisition of, or the attempt to acquire, by the Company or any Subsidiary of
the Company, individually or collectively, 20% or more of any class of voting
securities of any Person, which acquisition is not approved by the board of
directors of such Person.
10.10 Governing Law. This Agreement and the Notes shall be governed by,
and construed in accordance with, the internal laws (as distinguished from the
conflicts of laws rules) of the State of Illinois.
10.11 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same
agreement.
10.12 Limited Role of Banks. The relationship between the Company and the
Specified Subsidiaries, on the one hand, and the Banks, on the other hand,
shall be solely that of borrowers and lenders, respectively. No Bank shall
have any fiduciary responsibility to the Company or any Specified Subsidiary,
and no joint venture exists hereunder or in connection herewith between the
Company or any Specified Subsidiary and any Bank.
10.13 Integration. This Agreement represents the agreement of the
Company, the Specified Subsidiaries and the Banks with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by any Bank relative to the subject matter hereof not expressly set
forth or referred to herein.
10.14 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
ARTICLE XI
GUARANTY
11.1 Guaranty of Payment. The Company hereby unconditionally
guarantees the full and prompt payment to the Banks when due, upon demand, at
maturity, or by reason of acceleration or otherwise, of any and all Advances
from time to time made to any Specified Subsidiary (without deduction of any
applicable taxes, if any), together with all interest thereon and any premium,
penalties, and other amounts payable in connection therewith (the "Guaranteed
Indebtedness").
11.2 The Banks' Costs and Expenses. The Company agrees to pay on
demand all costs and expenses of every kind incurred by the Banks:
(a) in enforcing the guaranty contained in this Article XI (this
"guaranty");
(b) in collecting any of the Guaranteed Indebtedness from any Specified
Subsidiary or the Company;
(c) for any other purpose related to the Guaranteed Indebtedness.
"Costs and expenses" as used in the preceding sentence shall include,
without limitation, attorneys' fees incurred by any Bank (including the
allocated costs of internal counsel) in retaining counsel for advice, suit,
appeal, any insolvency, or other proceedings under the Federal Bankruptcy Code
or otherwise, or for any purpose specified in the preceding sentence.
11.3 Nature of Guaranty: Continuing, Absolute, and Unconditional. (a)This
guaranty is and is intended to be a continuing guaranty of payment of the
Guaranteed Indebtedness, independent of and in addition to any other guaranty,
indorsement, collateral, or other agreement held by the Banks therefor or with
respect thereto, whether or not furnished by the Company. The Company waives
all rights of subrogation (whether contractual, under Section 509 of the
United States Bankruptcy Code or otherwise) to the claims of the Banks against
any Specified Subsidiary and all contractual, statutory, or common law rights
of reimbursement, contribution, or indemnity from any Specified Subsidiary
which may otherwise have arisen in connection with this guaranty.
(b) This guaranty is absolute and unconditional and shall not be changed
or affected by any representation, oral agreement, act, or thing whatsoever,
except as herein provided.
11.4 Certain Rights and Obligations. (a) The Company authorizes the Banks,
without notice, demand, or any reservation of rights against the Company and
without affecting the Company's obligations hereunder, from time to time:
(i) to renew, extend, increase, accelerate, or otherwise change the
time for payment of, the terms of or the interest on the Guaranteed
Indebtedness or any part thereof, or grant other indulgences to any
Specified Subsidiary or others;
(ii) to accept from any Person and hold collateral for the payment of
the Guaranteed Indebtedness or any part thereof, and to modify, exchange,
enforce, or refrain from enforcing, or release such collateral or any part
thereof;
(iii) to accept and hold any indorsement or guaranty of payment of the
Guaranteed Indebtedness or any part thereof, and to discharge, release, or
substitute any such obligation of any such indorser or guarantor, or any
Person who has given any security interest in any collateral as security
for the payment of the Guaranteed Indebtedness or any part thereof, or any
other Person in any way obligated to pay the Guaranteed Indebtedness or
any part thereof, and to enforce or refrain from enforcing, or compromise
or modify, the terms of any obligation of any such indorser, guarantor, or
Person;
(iv) to dispose of any and all collateral securing the Guaranteed
Indebtedness, if any, in any manner as the Majority Banks, in their sole
discretion, may deem appropriate, and to direct the order or manner of
such disposition and the enforcement of any and all endorsements and
guaranties relating to the Guaranteed Indebtedness or any part thereof as
the Majority Banks in their sole discretion may determine;
(v) to determine the manner, amount, and time of application of
payments and credits, if any, to be made on all or any part of any
component or components of the Guaranteed Indebtedness (whether principal,
interest, costs, expenses, or otherwise);
(vi) to grant or continue credit from time to time by the Banks to any
Specified Subsidiary without notice to or authorization from the Company
regardless of such Specified Subsidiary's financial or other condition at
the time of any such grant or continuation, and in connection therewith
the Banks shall have no obligation to disclose or discuss with the Company
their assessment of the financial condition of any Specified Subsidiary;
and
(vii) to take advantage or refrain from taking advantage of any
security or accept or make or refrain from accepting or making any
compositions or arrangements when and in such manner as the Majority
Banks, in their sole discretion, may deem appropriate and generally do or
refrain from doing any act or thing which might otherwise, at law or in
equity, release the liability of the Company as a guarantor or surety in
whole or in part, and in no case shall any Bank be responsible or shall
the Company be released either in whole or in part for any act or omission
in connection with any Bank having sold any security at an under value.
(b) If any default shall be made in the payment of any of the Guaranteed
Indebtedness, the Company hereby agrees to pay the same in full to the extent
hereinafter provided:
(i) without deduction by reason of any setoff, defense (other than
payment) or counterclaim of the applicable Specified Subsidiary;
(ii) without requiring protest or notice of nonpayment or notice of
default to Company, to the applicable Specified Subsidiary or to any other
Person;
(iii) without demand for payment or proof of such demand;
(iv) without requiring the Banks to resort first to the applicable
Specified Subsidiary (this being a guaranty of payment and not of
collection) or to any other guaranty or any collateral which any Bank may
hold;
(v) without requiring notice of acceptance hereof or assent hereto by
any Bank; and
(vi) without requiring notice that any of the Guaranteed Indebtedness
has been incurred or of the reliance by the Banks upon this guaranty; all
of which the Company hereby waives.
(c) The Company's obligation hereunder shall not be affected by any of the
following, all of which the Company hereby waives:
(i) any defense arising by reason of the cessation from any cause
whatsoever of liability of the applicable Specified Subsidiary, including,
without limitation, any failure, negligence, or omission by the Banks in
enforcing their claims against such Specified Subsidiary;
(ii) any release, settlement, or compromise of any obligation of any
Specified Subsidiary;
(iii) the invalidity or unenforceability of any of the Guaranteed
Indebtedness;
(iv) any change of ownership of any Specified Subsidiary or the
insolvency, bankruptcy, or any other change in the legal status of any
Specified Subsidiary;
(v) the change in or the imposition of any law, decree, regulation, or
other governmental act which does or might impair, delay, or in any way
affect the validity, enforceability, or the payment when due of the
Guaranteed Indebtedness; or
(vi) the failure of any Specified Subsidiary or the Company to maintain
in full force, validity, or effect or to obtain or renew when required all
governmental and other approvals, licenses, or consents required in
connection with the Guaranteed Indebtedness or this guaranty, or to take
any other action required in connection with the performance of all
obligations pursuant to the Guaranteed Indebtedness or this guaranty.
A. Continuing Guaranty. If after receipt of any payment of all or any
part of the Guaranteed Indebtedness, any Bank is for any reason compelled by
court order to surrender such payment to any person or entity, because such
payment is determined to be void or voidable as a preference, impermissible
setoff, or a diversion of trust funds, or for any reason, this guaranty shall
continue in full force (or, if applicable, be reinstated) notwithstanding any
contrary action which may have been taken by any Bank in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to
the Banks' rights under this guaranty and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
B. Guaranty of Performance. The Company also guarantees the full, prompt,
and unconditional performance of all obligations and agreements of every kind
owed or hereafter to be owed by each Specified Subsidiary to the Banks. Every
provision for the benefit of the Banks contained in this guaranty shall apply
to the guarantee of performance given in this paragraph.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CBI INDUSTRIES, INC.
By: /s/ Buel T. Adams
Buel T. Adams
Vice President and Treasurer
Address for Notice Purposes:
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention: Treasurer
Telephone: 708-572-7409
Telecopy: 708-572-7405
Telex: N/A
Answerback: N/A
THE BID ADVANCE AGENT
IBIS INVESTMENTS, INC.
By: /s/ Buel T. Adams
Buel T. Adams
Vice President and Treasurer
Address for Notice Purposes:
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention: Treasurer
Telephone: 708-572-7409
Telecopy: 708-572-7470
Telex: N/A
Answerback: N/A
COMMITMENT
$37,500,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Daniel J. Boote
Daniel J. Boote
Vice President
By: /s/ M. Kathleen McVay
M. Kathleen McVay
Vice President
Domestic, CD, and Eurodollar Lending Offices:
Bank of America National Trust and
Savings Association
1850 Gateway Boulevard
Concord, California 94520
Telephone: 510-675-7719
Telecopy: 510-675-7531 or 7532
Telex: 67652
Answerback: BANKAMER SFO
Competitive Bid Lending Office:
Telephone: 415-622-2020
Telecopy: 415-622-2235
Telex: 278431
Answerback: BANKAMER ISF
COMMITMENT
$37,500,000 CONTINENTAL BANK N.A.
By: /s/ G. William Marquardt
G. William Marquardt
Senior Vice President
Domestic, CD and Eurodollar Lending Offices:
Continental Bank N.A.
231 S. LaSalle Street
Chicago, Illinois 60697
Attention: G. William Marquardt
Telephone: 312-828-8230
Telecopy: 312-828-1974
Telex: 25-3460
Answerback: CONTL BK CGO
Competitive Bid Lending Office:
Continental Bank N.A.
231 S. LaSalle Street
Chicago, Illinois 60697
Attention: Don J. Baudkuin
Telephone: 312-828-3223
Telecopy: 312-828-5135
Telex: 25-3460
Answerback: CONTL BK CGO
COMMITMENT
$37,500,000 ROYAL BANK OF CANADA
By: /s/ Patricia A. Herbig
Patricia A. Herbig
Manager
Royal Bank of Canada
33 N. Dearborn Street, Suite 2300
Chicago, Illinois 60602
Telephone: 312-372-4404
Telecopy: 312-782-3429
Telex: N/A
Answerback: N/A
Domestic and Eurodollar Lending Offices:
Royal Bank of Canada
Financial Square
New York, New York 10005-3531
Telephone:
Telecopy: 718-522-6292
Telex: MCI 62519
Answerback:
Contacts:
Rosemary Addonizio, Documentation Officer
Royal Bank of Canada
Pierrepont Plaza, 300 Cadman Plaza West
Brooklyn, New York 11201-2701
Telephone: 212-858-7183 or 7178
Telecopy: 718-522-6292
Telex: MCI 62519
Answerback:
Payment Instructions:
Royal Bank of Canada
Pierrepont Plaza, 300 Cadman Plaza West
Brooklyn, New York 11201-2701
Account No.: Please cite CHIPS ABA
#026004093 and/or Fed ABA No. if applicable
Account Name: Loans Administration
Reference: For the account of
COMMITMENT
$33,000,000 BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Hugh K. Brower
Hugh K. Brower
Director
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
Bank of Montreal
Harris Trust and Savings Bank Building
115 S. LaSalle Street
12th Floor West
Chicago, Illinois 60603
Telephone: 312-750-3733
Telecopy: 312-750-3702
Payment Instructions:
Account Name: Bank of Montreal, Chicago Branch
send to: Harris Trust and Savings Bank
Bank Routing #: 071000288
Account #: 124856-6
COMMITMENT
$33,000,000 THE NORTHERN TRUST COMPANY
By:/s/ Elaine H. Moore
Elaine H. Moore
Vice President
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
The Northern Trust Company
50 S. LaSalle Street
Chicago, Illinois 60675
Telephone: 312-444-7179
Telecopy: 312-630-1566
Telex: 254419
Answerback: NORTRUST C CGO
COMMITMENT
$30,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Katherine M. Lange
Katherine M. Lange
Vice President
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
The First National Bank of Chicago
Mail Suite 0324
Chicago, Illinois 60670-0324
Telephone: 312-732-5219
Telecopy: 312-732-4840
Telex: 4330253
Answerback: FNBC UI
COMMITMENT
$24,000,000 CHEMICAL BANK
By: /s/ Christopher C. Wardell
Christopher C. Wardell
Managing Director
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
Chemical Bank
270 Park Avenue
New York, New York 10017
Telephone:
Telecopy:
Telex:
Answerback:
COMMITMENT
$15,000,000 ABN-AMRO BANK, N.V.
By: /s/ John W. Stanger
John W. Stanger
Vice President
By: /s/ Bernard J. McGuigan
Bernard J. McGuigan
Vice President
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
ABN-AMRO Bank, N.V
135 S. LaSalle Street
Chicago, Illinois 60603
Telephone: 312-443-2623
Telecopy: 312-606-8425
Telex: 6732700
Answerback: ABN AMRO CGO
COMMITMENT
$15,000,000 BARCLAYS BANK PLC
By: /s/ Olga Georgiev
Olga Georgiev
Vice President
By: /s/ Frank J. Sisinni
Frank J. Sisinni
Vice President
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
Barclays Bank PLC
New York Branch
75 Wall Street
New York, New York 10265
Attention: Lynn Colomba
Telephone: 212-412-5936
Telecopy: 212-412-5002
Telex: 12-6946
Answerback: BARCLADOM NYK
With a copy to:
Barclays Bank PLC
Chicago Branch
200 W. Madison Street
Chicago, Illinois 60606
Attention: Frank J. Sisinni
Telephone: 312-558-1125
Telecopy: 312-558-3250
Telex: 190246
Answerback: BARCLAYS CGO
COMMITMENT
$15,000,000 CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Sandra E. Horwitz
Sandra E. Horwitz
Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ Sandra E. Horwitz
Sandra E. Horwitz
Vice President
Domestic Lending Office:
Credit Lyonnais Chicago Branch
227 W. Monroe Street
Chicago, Illinois 60606
Telephone: 312-641-0500
Telecopy: 312-641-0527
Telex: 6871734
Answerback: CREDCHG UW
Eurodollar and Competitive Bid Lending Offices:
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Chicago Branch
227 W. Monroe Street
Chicago, Illinois 60606
COMMITMENT
$15,000,000 SOCIETE GENERALE
By: /s/ Barbara S. Adelman
Barbara S. Adelman
Vice President
By: /s/ Charles M. Pierron
Charles M. Pierron
Regional Manager
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
Societe Generale
181 W. Madison Street
Suite 3400
Chicago, Illinois 60602
Telephone: 312-578-5051
Telecopy: 312-578-5099
Telex: 190130
Answerback: SGCHI UT
COMMITMENT
$7,500,000 GULF INTERNATIONAL BANK
By:/s/ Haytham F. Khalil
Haytham F. Khalil
Assistant Vice President
By:/s/ Issa N. Baconi
Issa N. Baconi
Senior Vice President & Branch Manager
Domestic, CD, Eurodollar and Competitive Bid
Lending Offices:
Gulf International Bank
380 Madison Avenue
New York, New York 10017
Telephone: 212-922-2322
Telecopy: 212-922-2309
Telex: 424 027
Answerback: GIBANK
EXHIBIT 1.4(a)
, 19
[FORM OF SPECIFIED SUBSIDIARY AGREEMENT]
To each of the Banks parties to the
Credit Agreement dated as of
December 4, 1992, as amended
(the "Credit Agreement") among CBI
Industries, Inc., the Specified
Subsidiaries party thereto,
said Banks, and Ibis Investments,
Inc., as Bid Advance Agent
Dear Sirs:
Reference is made to the above-defined Credit Agreement. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meanings provided therein.
The undersigned, [name of Specified Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be a Specified Subsidiary for
purposes of the Credit Agreement, effective from the date hereof. The maximum
amount of Permitted Advances which may be made to the undersigned is
.
In order to induce the Banks to make Advances to the undersigned, the
undersigned represents and warrants that:
(a) The undersigned has been duly incorporated and is validly existing
and in good standing under the laws of the jurisdiction of its incorporation;
(b) The undersigned has taken all corporate action necessary to
authorize its execution and delivery of this Specified Subsidiary Agreement
and the Notes of the undersigned and the consummation of the transactions
contemplated by this Specified Subsidiary Agreement and the Notes of the
undersigned. This Specified Subsidiary Agreement constitutes, and the Notes,
when executed and delivered by the undersigned, will constitute, the valid and
binding agreement of the undersigned enforceable against the undersigned in
accordance with their respective terms except to the extent limited by
bankruptcy, reorganization, insolvency, moratorium, and other laws of general
application relating to or affecting the enforcement of creditors' rights or
by general equitable principles; and
(c) The execution and delivery by the undersigned of this Specified
Subsidiary Agreement and the Notes, and the performance by the undersigned of
its obligations under this Specified Subsidiary Agreement and the Notes, do
not and will not contravene the undersigned's charter and corporate governance
documents or any material agreement to which the undersigned is a party or by
which any of its material assets or properties are bound.
The undersigned hereby agrees to perform all of its obligations as a
Specified Subsidiary under the Credit Agreement and agrees to be bound in all
respects by the terms thereof as if the undersigned were a signatory party
thereto.
The undersigned hereby irrevocably designates, makes, constitutes, and
appoints CBI Industries, Inc. ("CBI") as the undersigned's true and lawful
agent and attorney-in-fact, and authorizes CBI, to make all elections and
deliver all notices (other than a Notice of Borrowing) which may be required
or permitted to be made or delivered by the undersigned pursuant to the Credit
Agreement, including any election or notice regarding interest rate
determinations.
The undersigned designates its account (number ) at [Name of
Bank] as the account to which the Banks shall deposit their respective ratable
portions of Advances to be made to the undersigned under the Credit Agreement.
Any notice to the undersigned under the Credit Agreement may be given
to, and shall conclusively be deemed to have been received by the undersigned
when received by, the Company.
This instrument shall be construed in accordance with and governed by
the laws of the State of Illinois.
Very truly yours,
[Name of Specified Subsidiary]
By:
Title:
The undersigned hereby confirms that [name of Specified Subsidiary] is a
Specified Subsidiary for purposes of the Credit Agreement and that the
guaranty of the undersigned contained in Article XI of the Credit Agreement
applies to the obligations of [name of Specified Subsidiary] hereunder and
under the Credit Agreement.
CBI INDUSTRIES, INC.
By:
Title:
EXHIBIT 2.2
[FORM OF NOTICE OF SYNDICATED BORROWING]
[BANK]
Attention:
Gentlemen:
The undersigned, , refers to the
Credit Agreement, dated as of December 4, 1992 (the "Credit Agreement", the
terms defined therein being used herein as therein defined), among CBI
Industries, Inc., the Specified Subsidiaries party thereto, the Banks parties
thereto and IBIS INVESTMENTS, INC., as Bid Advance Agent, and hereby gives you
notice pursuant to Section 2.2 of the Credit Agreement that the undersigned
hereby requests a Syndicated Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Syndicated
Borrowing (the "Proposed Syndicated Borrowing") as required by Section 2.2 of
the Credit Agreement.
(i) The Business Day of the Proposed Syndicated Borrowing is
, 19 .
(ii) The Type of Syndicated Advances comprising the proposed Syndicated
Borrowing is [Adjusted CD Rate Advances] [Base Rate Advances] [Eurodollar Rate
Advances].
(iii) The aggregate amount of the Proposed Syndicated Borrowing
is $ .
(iv) Your ratable portion of the Proposed Syndicated Borrowing
is $ .
(v) The Interest Period for each Syndicated Advance made as part of
the Proposed Syndicated Borrowing is [ months] [ days].
Very truly yours,
By:
Title:
EXHIBIT 3.2
[FORM OF COMPETITIVE BID QUOTE REQUEST]
Ibis Investments, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention:
Gentlemen:
The undersigned, , refers to the
Credit Agreement, dated as of December 4, 1992 (the "Credit Agreement", the
terms defined therein being used herein as therein defined), among CBI
Industries, Inc., the Specified Subsidiaries party thereto, the Banks parties
thereto and IBIS INVESTMENTS, INC., as Bid Advance Agent, and hereby gives you
notice pursuant to Section 3.2 of the Credit Agreement that the undersigned
requests Competitive Bid Quotes for the following proposed Competitive Bid
Borrowing(s) (the "Proposed Borrowings"):
(i) The Business Day of the Proposed Syndicated Borrowing
is , 19 .
(ii) The Competitive Bid Advances with respect to which Competitive Bid
Quote are hereby requested are:
Aggregate Principal Interest Period
Amount of Borrowing for Advances
(iii) The Bid Advance Agent is hereby requested to advise [all of the
Banks] [the Banks specified below] of the request for Competitive Bid Quotes
set forth herein.
By:
Title:
EXHIBIT 3.4
[FORM OF COMPETITIVE BID QUOTE]
Ibis Investments, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention:
Gentlemen:
The undersigned refers to the Credit Agreement, dated as of December 4,
1992 (the "Credit Agreement", the terms defined therein being used herein as
therein defined), among CBI Industries, Inc., the Specified Subsidiaries party
thereto, the Banks parties thereto and IBIS INVESTMENTS, INC., as Bid Advance
Agent, and hereby notifies you of, and requests that you forward to CBI
Industries, Inc. on our behalf, pursuant to Section 3.4 of the Credit
Agreement the following Competitive Bid Quotes on the following terms:
(i) The Borrower shall be .
(ii) Quoting Bank: .
(iii) Person to contact at the Quoting Bank:
Name:
Telephone:
Telecopy:
Telex:
(iv) Proposed Borrowing Date: .
(v) We hereby offer to make Competitive Bid Advances in the following
principal amounts, for the following Interest Periods, and at the following
rates:
Principal Interest Absolute
Amount Period Rate
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Competitive Bid Advance(s)
for which any such offer is accepted, in whole or in part.
[NAME OF BANK]
Dated: By:
Authorized Officer
EXHIBIT 3.6
[FORM OF NOTICE OF COMPETITIVE BID BORROWING]
Ibis Investments, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention:
Gentlemen:
The undersigned, , refers to the
Credit Agreement, dated as of December 4, 1992 (the "Credit Agreement", the
terms defined therein being used herein as therein defined), among CBI
Industries, Inc., the Specified Subsidiaries party thereto, the Banks parties
thereto and IBIS INVESTMENTS, INC., as Bid Advance Agent, and hereby gives you
notice, irrevocably, pursuant to Section 3.6 of the Credit Agreement that the
undersigned requests a Competitive Bid Borrowing under the Credit Agreement
and in that connection sets forth below the information relating to such
Competitive Bid Borrowing (the "Proposed Borrowing") as required by Section
3.6 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing
is , 19 .
(ii) The aggregate principal amount of Competitive Bid Advances and the
Interest Periods therefor have been offered to the undersigned by Banks
submitting Competitive Bid Quotes and that by this notice are hereby accepted,
subject to the terms and conditions of the Credit Agreement, are set forth
below:
Aggregate Principal Interest Period
Amount of Borrowing for Advances
(iii) The undersigned acknowledges and agrees that, by this notice, it
irrevocably accepts the offers made by the Banks which shall have submitted
Competitive Bid Quotes to the extent that the principal amount offered by each
such Bank, together with the principal amount offered by all other such Banks
in connection therewith, does not exceed the respective amounts set forth
above. As among such Banks, the offers made are accepted in the ascending
order of Absolute Rate.
Very truly yours,
By:
Title:
EXHIBIT 4.7(a)
[FORM OF SYNDICATED NOTE]
$
FOR VALUE RECEIVED, the undersigned, CBI INDUSTRIES, INC., a Delaware
corporation (the "Company"), HEREBY PROMISES TO PAY to the order of
(the "Bank") for the account of its Applicable Lending Office (as
defined in the Credit Agreement, as hereinafter defined) the principal amount
of each Syndicated Advance (as defined below) made by the Bank to the Company
pursuant to the Credit Agreement on the last day of the Interest Period (as
defined in the Credit Agreement) for such Syndicated Advance. The Company
promises to pay interest on the unpaid principal amount of each Syndicated
Advance from the date of such Syndicated Advance until such principal amount
is paid in full, at such interest rates and payable at such times as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Bank not later than 12:00 noon (Chicago time) on the
date when due at its Applicable Lending Office in immediately available funds.
All Syndicated Advances made by the Bank to the Company and the respective
maturities thereof, and all payments made on account of principal thereof,
shall be recorded by the Bank and shall be endorsed on the grid attached
hereto (which is part of this Syndicated Note) prior to any transfer of this
Syndicated Note.
This Syndicated Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement (the "Credit Agreement") dated as of
December 4, 1992, among the Company, the Specified Subsidiaries party thereto,
the Bank, and other banks referred to therein and Ibis Investments, Inc., as
Bid Advance Agent. The Credit Agreement, among other things, (i) provides in
Article II thereof for the making and maintaining of advances ("Syndicated
Advances") by the Bank to the Company from time to time in an aggregate amount
not to exceed at any time outstanding the Bank's Available Commitment (as
defined in the Credit Agreement) and (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events and also
for prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
CBI INDUSTRIES, INC.
Dated as of By:
(no Syndicated Advances made or
outstanding on the date hereof) Title:
Syndicated Note Grid
ADVANCES, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of Type of of Paid or Principal Notation
Date Advance Advance Advance Prepaid Balance Made By
______________________________________________________________________________
$300,000,000 EXHIBIT 4.7(b)
[FORM OF COMPETITIVE BID NOTE]
FOR VALUE RECEIVED, the undersigned, CBI INDUSTRIES, INC., a Delaware
corporation (the "Company"), HEREBY PROMISES TO PAY to the order of
(the "Bank") for the account of its Competitive Bid Lending Office
(as defined in the Credit Agreement, as hereinafter defined) the principal
amount of each Competitive Bid Advance (as defined below) made by the Bank to
the Company pursuant to the Credit Agreement on the last day of the Interest
Period (as defined in the Credit Agreement) for such Competitive Bid Advance.
The Company promises to pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance until
such principal amount is paid in full, at such interest rates and payable at
such times as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Bank not later than 12:00 noon (Chicago time) on the
date when due at its Competitive Bid Lending Office in immediately available
funds. All Competitive Bid Advances made by the Bank to the Company and the
respective maturities thereof, and all payments made on account of principal
thereof, shall be recorded by the Bank and shall be endorsed on the grid
attached hereto (which is part of this Competitive Bid Note) prior to any
transfer of this Competitive Bid Note.
This Competitive Bid Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement (the "Credit Agreement")
dated as of December 4, 1992, among the Company, the Specified Subsidiaries
party thereto, the Bank, and other banks referred to therein and Ibis
Investments, Inc., as Bid Advance Agent. The Credit Agreement, among other
things, (i) provides in Article III thereof for the making and maintaining of
advances ("Competitive Bid Advances") by the Bank to the Company from time to
time in an aggregate amount not to exceed at any time outstanding, together
with the aggregate principal amount of Syndicated Advances (as defined in the
Credit Agreement) outstanding at such time, the aggregate Commitment (as
defined in the Credit Agreement) of all banks parties to the Credit Agreement
and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
CBI INDUSTRIES, INC.
Dated as of By:
(no Competitive Bid Advances made or
outstanding on the date hereof) Title:
Competitive Note Grid
ADVANCES, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of Type of of Paid or Principal Notation
Date Advance Advance Advance Prepaid Balance Made By
______________________________________________________________________________
EXHIBIT 4.14(a)
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 1001 of
the Internal Revenue Service]
[Bank's Letterhead]
, 19
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention: Treasurer
Re: Credit Agreement Dated as of December 4, 1992, with CBI
Industries, Inc.
Dear Sirs:
In connection with the Credit Agreement dated as of December 4, 1992,
among CBI Industries, Inc., the Specified Subsidiaries party thereto, the
Banks named therein, and Ibis Investments, Inc., as Bid Advance Agent, we
hereby represent and warrant that [name of Bank, address] is a [name of
Country] corporation and is currently exempt from any U.S. federal withholding
tax on payments to it from U.S. sources by virtue of compliance with the
provisions of the Income Tax Convention between the United States and [name of
Country] signed [date], [as amended]. Our fiscal year is the twelve months
ending [ ].
The undersigned (a) is a corporation organized under the laws of [
] whose registered business is managed or controlled in [
], (b) [does not have a permanent establishment or fixed base in the
United States] [does have a permanent establishment or fixed base in the
United States but the above Agreement is not effectively connected with such
permanent establishment or fixed base], (c) is not exempt from tax on the
income in [ ], and (d) is the beneficial owner of the
income.
We enclose herewith two copies of Form 1001 of the U.S. Internal Revenue
Service.
Yours faithfully,
[Name of Bank]
By:
Title:
EXHIBIT 4.14(b)
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 4224 of
the Internal Revenue Service]
[Bank's Letterhead]
, 19
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention: Treasurer
Re: Credit Agreement Dated as of December 4, 1992, with CBI
Industries, Inc.
Dear Sirs:
In connection with the Credit Agreement dated as of December 4, 1992,
among CBI Industries, Inc., the Specified Subsidiaries party thereto, the
Banks named therein, and Ibis Investments, Inc., as Bid Advance Agent, we
hereby represent and warrant that [name of Bank, address] is a corporation and
is entitled to exemption from U.S. federal withholding tax on payments to it
under the Agreement by virtue of Section 1441(c)(1) of the Internal Revenue
Code of the United States of America and Treasury Regulation Section 1.1441-
4(a) thereunder.
We enclose herewith two copies of Form 4224 of the U.S. Internal Revenue
Service.
Yours faithfully,
[Name of Bank]
By:
Title:
EXHIBIT 4.16(f)
THIS AGREEMENT, dated as of , 19 ("Agreement"),
between CBI Industries, Inc. (the "Company") and
("Successor Bank").
W I T N E S S E T H :
WHEREAS, the Company, the Specified Subsidiaries party thereto, the
several commercial banks parties thereto (the "Existing Banks") and Ibis
Investments, Inc., as Bid Advance Agent, are parties to a Credit Agreement
dated as of December 4, 1992 (as the same may have been or may hereafter be
amended, supplemented, or otherwise modified, the "Credit Agreement");
WHEREAS, Section 4.16 of the Credit Agreement provides that under
certain circumstances described therein the Company may terminate the unused
portion of the Commitment (as defined in the Credit Agreement) of an Existing
Bank and one or more commercial banks may succeed to the Commitment of such
Existing Bank and become a party to the Credit Agreement upon the execution of
an agreement in substantially the form of this Agreement;
WHEREAS, the Company has terminated or there have expired an aggregate
principal amount of Commitments equal to $ which have not
heretofore been replaced (the "Terminated Commitments"; the Bank[s] that [has]
[have] maintained the Terminated Commitment[s] being [collectively] referred
to as the "Terminated Bank[s]"); such Terminated Commitment[s] being on the
date hereof utilized as follows:
Last day of
Principal Amount Interest Period
I Unused Portion N/A
II Syndicated Advances
Adjusted CD Rate Advances
Eurodollar Rate Advances
Base Rate Advances
III Competitive Bid Advances
[WHEREAS, the Company intends to prepay on the date hereof all
outstanding Advances of the Terminated Bank[s];]
WHEREAS, the Company desires the Successor Bank to become, and the
Successor Bank is agreeable to becoming, a "Bank" for purposes of the Credit
Agreement on the terms contained herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Benefits of Agreement. The Company and the Successor Bank hereby
agree that on and as of the date hereof the Successor Bank shall be a "Bank"
for all purposes and shall be bound by the obligations and entitled to the
benefits of the Credit Agreement as if the Successor Bank had been named on
the signature pages thereof, provided that the Successor Bank shall not assume
and shall, except as herein provided, have no obligations in respect of any
Advances outstanding on the date hereof and made by any Terminated Bank.
2. Commitment of Successor Bank. The Company and the Successor Bank
hereby agree that on and as of the date hereof the Successor Bank shall
succeed to $ of the Commitment[s] of the Terminated Bank[s],
which succession shall, with respect to [ % of] the unused portion of such
Terminated [Bank's] [Banks'] Commitment[s] be effective as the date hereof
and, with respect to [ % of] the remaining portion of such Terminated
[Bank's] [Banks'] Commitment[s] become effective as and when such Terminated
[Bank's] [Banks'] Advances are repaid. [On the date hereof the Successor Bank
shall extend to the Company the following Advances in the following amounts at
the following interest rates with Interest Periods commencing on the date
hereof and ending on the following dates:
Last day of
Type of Advance Principal Amount Rate Interest Period
The above described Advances correspond [in aggregate amount to] [to % of]
the outstanding Advances of the Terminated Bank[s] being prepaid on the date
hereof.]
3. Taxes. The Successor Bank (i) represents to the Company that [it
is incorporated under the laws of the United States or a state thereof] [under
applicable law and treaties no taxes will be required to be withheld by the
Company with respect to any payments to be made to such Successor Bank in
respect of the Advances], (ii) represents that it has furnished to the Company
(A) [a statement that it is incorporated under the laws of the United States
or a state thereof] [a letter in duplicate in the form of Exhibit [4.14(a)]
[4.14(b)] to the Credit Agreement and two duly completed copies of United
States Internal Revenue Service Form [4224] [1001] [successor applicable
form], certifying that such Successor Bank is entitled to receive payments
under the Credit Agreement without deduction or withholding of any United
States federal income taxes], and (B) [an Internal Revenue Service Form [W-8]
[W-9]] [successor applicable form] to establish an exemption from United
States backup withholding tax, and (iii) agrees to provide the Company a new
Form [1001] [4224] and Form [W-8] [W-9], or successor applicable form or other
manner of certificate, on or before the date that any such letter or form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent letter and form previously delivered by it,
certifying in the case of a Form [1001] [4224] that it is entitled to receive
payment under the Credit Agreement without deduction or withholding of any
United States federal income tax, and in the case of a Form [W-8] [W-9]
establishing exemption from United States backup withholding tax.
4. Miscellaneous. (a) Capitalized terms used herein shall have the
meanings defined in the Credit Agreement unless otherwise defined herein.
(b) This Agreement may be executed in separate counterparts with the
same effect as if the signatures thereto were upon one instrument.
(c) This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CBI INDUSTRIES, INC.
By:
Title:
By:
Title:
EXHIBIT 5.2(e)
[FORM OF OPINION OF COMPANY'S COUNSEL]
December 14, 1992
To each of the Banks parties
to the Credit Agreement
dated as of December 4, 1992
among CBI Industries, Inc.,
said Banks, and to IBIS INVESTMENTS, INC.
as Bid Advance Agent
Gentlemen:
This opinion is furnished to you pursuant to Section 5.2(e) of the
Credit Agreement dated as of December 4, 1992 (the "Credit Agreement") among
CBI Industries, Inc. (the "Company"), the Specified Subsidiaries party
thereto, the Banks parties thereto, and Ibis Investments, Inc., as Bid Advance
Agent for said Banks. Terms defined in the Credit Agreement are used herein
as therein defined.
As Senior Vice President and General Counsel to the Company, I have
participated in the preparation, execution, and delivery of the Credit
Agreement. In that connection I have examined:
1. The Credit Agreement;
2. The documents furnished by the Company pursuant to Section 5.2 of
the Credit Agreement;
3. The Subsidiary Guaranty and the documents furnished by the
Subsidiaries party thereto pursuant to Section 5.5 of the Credit
Agreement; and
4. The opinion of even date herewith of Robert W. Dudley, Senior Vice
President and General Counsel of Liquid Carbonic Industries
Corporation.
In addition, I have reviewed such of the corporate proceedings of the
Company and its Subsidiaries, and have examined such documents, corporate
records, certificates of public officials and of officers of the Company and
its Subsidiaries, agreements, and other instruments as I have deemed necessary
for the purpose of this opinion. I have assumed the due execution and
delivery, pursuant to due authorization, of the Credit Agreement by the Banks
and the Bid Advance Agent, and the authenticity of all documents submitted to
me as originals and the conformity to the original documents of all documents
submitted to me as certified, conformed, or photostatic copies.
To the extent that my opinion expressed below involves conclusions as to
the matters set forth in the above-mentioned opinion of Robert W. Dudley,
Esq., a copy of which is attached, I have assumed without independent
investigation the correctness of the matters set forth therein.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. Each of the Company and its U.S. Restricted Subsidiaries is a
corporation duly incorporated, validly existing, and in good
standing under the laws of its jurisdiction of incorporation and
has the corporate power and authority to carry on its business as
now being conducted and to own its properties. Each of the
Company and its U.S. Restricted Subsidiaries has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction
in the United States in which the failure to so qualify could
reasonably be expected to have a materially adverse effect on the
financial condition or operations of the Company and its
Subsidiaries considered as a whole.
2. The execution, delivery, and performance by the Company of the
Credit Agreement and the Notes are within the Company's corporate
powers and have been duly authorized by all necessary corporate
action on the part of the Company, the execution, delivery and
performance of the Subsidiary Guaranty by each Subsidiary party
thereto are within each such Subsidiary's corporate powers and
have been duly authorized by all necessary corporate action on the
part of each such Subsidiary, and such execution, delivery and
performance do not, in any such case, (i) contravene, or
constitute a default under, the certificate of incorporation or
by-laws of the Company or any such Subsidiary, or any judgment,
law, rule, or regulation known to me to be applicable to the
Company or any such Subsidiary, or any indenture, mortgage, deed
of trust, or other material agreement or instrument by which the
Company or any of its Subsidiaries is bound or (ii) result in the
creation of any lien, charge, or encumbrance upon any of the
property or assets of the Company or any of its Subsidiaries. The
Credit Agreement and the Notes have been duly executed and
delivered on behalf of the Company and the Subsidiary Guaranty has
been duly executed and delivered by each Subsidiary party thereto.
3. No authorization, approval, or other action by, and no notice to
or filing with, any Governmental Authority is required for the due
execution, delivery, and performance (a) by the Company of the
Credit Agreement and the Notes or (b) by any Subsidiary of the
Subsidiary Guaranty.
4. The Credit Agreement and the Notes are valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
5. The Subsidiary Guaranty is the legal, valid and binding obligation
of each Subsidiary which is a party thereto enforceable against
each such Subsidiary in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
6. There is no pending or, to the best of my knowledge, threatened
action or proceeding against the Company or any of its
Subsidiaries before any Governmental Authority which is likely to
have a materially adverse effect upon the financial condition or
operations of the Company and its Subsidiaries considered as a
whole which has not been previously disclosed or which purports to
affect the legality, validity, or enforceability of the Credit
Agreement, the Notes or the Subsidiary Guaranty.
I am aware that Mayer, Brown & Platt will rely upon the opinions set
forth in paragraphs 1, 2, and 3 of this opinion in rendering their opinion
furnished pursuant to Section 5.2(f) of the Credit Agreement and consent
thereto.
Very truly yours,
Charles O. Ziemer
Senior Vice President and General Counsel
EXHIBIT 5.2(f)
[FORM OF OPINION OF BANK'S SPECIAL COUNSEL]
To Each of the Banks Listed
on Schedule A attached hereto
Ladies and Gentlemen:
We have acted as special counsel to the banking institutions listed on
Schedule A hereto in connection with the preparation, execution, and delivery
of the Credit Agreement dated as of December 4, 1992 (the "Credit Agreement")
among CBI Industries, Inc., a Delaware corporation, (the "Company"), the
Specified Subsidiaries party thereto, the Banks party thereto (the "Banks"),
and Ibis Investments, Inc., as Bid Advance Agent. Unless otherwise defined
herein, capitalized terms used herein have the meanings assigned to those
terms in the Credit Agreement.
In this connection, we have examined the following documents:
(1) An executed Credit Agreement;
(2) The Notes delivered to the Banks by the Company pursuant to
Section 5.2(a) of the Credit Agreement (the Credit Agreement and
the Notes are hereinafter collectively referred to as the "Loan
Documents");
(3) The Subsidiary Guaranty executed by various subsidiaries; and
(4) The opinion of even date herewith of Charles O. Ziemer, Esq.,
Senior Vice President and General Counsel of the Company.
In our examination of the documents referred to above, we have assumed
the authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing such
documents, and the conformity of the originals of all such documents submitted
to us as copies. We have also assumed that each of the Banks and the Bid
Advance Agent has duly executed and delivered, with all necessary power and
authority (corporate and otherwise), the Credit Agreement.
To the extent that our opinion expressed below involves conclusions as
to the matters set forth in the above-mentioned opinion of Charles O. Ziemer,
Esq., we have assumed without independent investigation the correctness of the
matters set forth therein.
Based upon the foregoing examination of documents and assumptions and
upon such other investigation as we have deemed necessary, we are of the
following opinion:
1. The legal opinion of Charles O Ziemer, Esq. is substantially
responsive to the requirements of Section 5.2(e) of the Credit
Agreement.
2. The Notes are substantially responsive to the requirements of
Section 5.2(a) of the Credit Agreement.
3. The Loan Documents are the legal, valid, and binding obligations
of the Company enforceable against the Company in accordance with
their respective terms.
4. The Subsidiary Guaranty is the legal, valid and binding obligation
of each Subsidiary which is a party thereto, enforceable against
each such Subsidiary in accordance with its terms.
Our opinions expressed in Paragraphs 3 and 4 above are subject to the
following qualifications:
(a) Our opinions are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, or similar law affecting the enforcement of creditors'
rights generally and to the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at
law). Such principles of equity are of general application, and,
in applying such principles, a court, among other things, might
not allow a creditor to accelerate maturity of a debt upon the
occurrence of a default deemed immaterial or might decline to
order a borrower to perform covenants. Such principles applied by
a court might include a requirement that the creditor act with
reasonableness and in good faith. Furthermore, a court may refuse
to enforce a covenant where a court deems such covenant to be
violative of applicable public policy.
(b) Certain provisions of the each of the Credit Agreement and the
Subsidiary Guaranty may be unenforceable in whole or in part under
the laws of the State of Illinois, but the inclusion of such
provisions does not affect the validity of the each of the Credit
Agreement and the Subsidiary Guaranty, and, except as set forth in
subparagraph (a) above, theeach of the Credit Agreement and
Subsidiary Guaranty contains adequate provisions for the practical
realization of the benefits intended thereby.
(c) Our opinion expressed above is limited to the law of the State of
Illinois and the Federal law of the United States, and we do not
express any opinion herein concerning any other law.
We understand that copies of this opinion will be delivered to (certain
Banks not listed on Schedule A), and such Banks may rely on this opinion as if
it were addressed to them.
Very truly yours,
MAYER, BROWN & PLATT
Schedule A
Bank of America National Trust Chemical Bank
and Savings Association 270 Park Avenue
1850 Gateway Boulevard New York, New York 10017
Concord, California 94520
Continental Bank N.A. ABN-AMRO Bank, N.V.
231 South LaSalle Street 135 S. LaSalle Street
Chicago, Illinois 60697 Chicago, Illinois 60603
Royal Bank of Canada Barclays Bank PLC
33 N. Dearborn Street 200 W. Madison
Suite 2300 Chicago, Illinois 60606
Chicago, Illinois 60602
Harris Trust and Savings Bank Credit Lyonnais
115 S. LaSalle Street 227 W. Monroe Street
12th Floor West Chicago, Illinois 60606
Chicago, Illinois 60603
The Northern Trust Company Societe Generale
50 South LaSalle Street 181 W. Madison Street
Chicago, Illinois 60675 Chicago, Illinois 60602
The First National Bank of Chicago Gulf International Bank
One First National Plaza 380 Madison Avenue
Chicago, Illinois 60670 New York, New York 10017
(Certain Banks may be deleted from
Schedule A)
EXHIBIT 5.4(b)(1)
SYNDICATED NOTE
$
FOR VALUE RECEIVED, the undersigned, [NAME OF SPECIFIED SUBSIDIARY], a
corporation (the "Company"), HEREBY PROMISES TO PAY to the
order of [NAME OF BANK] (the "Bank") for the account of its Applicable Lending
Office (as defined in the Credit Agreement, as hereinafter defined) the
principal amount of each Syndicated Advance (as defined below) made by the
Bank to the Company pursuant to the Credit Agreement on the last day of the
Interest Period (as defined in the Credit Agreement) for such Syndicated
Advance. The Company promises to pay interest on the unpaid principal amount
of each Syndicated Advance from the date of such Syndicated Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Bank not later than 12:00 noon (Chicago time) on the
date when due at its Applicable Lending Office in immediately available funds.
All Syndicated Advances made by the Bank to the Company and the respective
maturities thereof, and all payments made on account of principal thereof,
shall be recorded by the Bank and shall be endorsed on the grid attached
hereto (which is part of this Syndicated Note) prior to any transfer of this
Syndicated Note.
This Syndicated Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement (the "Credit Agreement") dated as of
December 4, 1992, as amended, among CBI Industries, Inc., the Specified
Subsidiaries party thereto, the Bank, the other banks referred to therein, and
Ibis Investments, Inc. as Bid Advance Agent, and the Specified Subsidiary
Agreement of even date herewith executed by the Company pursuant to which the
Company agreed to be bound by the terms of the Credit Agreement. The Credit
Agreement, among other things, (i) provides in Section 1.4 thereof for the
making and maintaining of advances by the Bank to the Company from time to
time in an aggregate amount not to exceed at any time outstanding the maximum
amount of Permitted Advances (as defined in the Credit Agreement) available to
the Company pursuant to Section 1.4 of the Credit Agreement and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
[NAME OF SPECIFIED SUBSIDIARY]
Dated as of By:
Syndicated Note Grid
[Name of Subsidiary]
ADVANCES, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of Type of of Paid or Principal Notation
Date Advance Advance Advance Prepaid Balance Made By
______________________________________________________________________________
EXHIBIT 5.4(b)(2)
COMPETITIVE BID NOTE
$300,000,000
FOR VALUE RECEIVED, the undersigned, [NAME OF SPECIFIED SUBSIDIARY], a
corporation (the "Company"), HEREBY PROMISES TO PAY to the
order of [NAME OF BANK] (the "Bank") for the account of its Competitive Bid
Lending Office (as defined in the Credit Agreement, as hereinafter defined)
the principal amount of each Competitive Bid Advance (as defined below) made
by the Bank to the Company pursuant to the Credit Agreement on the last day of
the Interest Period (as defined in the Credit Agreement) for such Competitive
Bid Advance. The Company promises to pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance until such principal amount is paid in full, at such interest rates,
and payable at such times as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Bank not later than 12:00 noon (Chicago time) on the
date when due at its Competitive Bid Lending Office in immediately available
funds. All Competitive Bid Advances made by the Bank to the Company and the
respective maturities thereof, and all payments made on account of principal
thereof, shall be recorded by the Bank and shall be endorsed on the grid
attached hereto (which is part of this Competitive Bid Note) prior to any
transfer of this Competitive Bid Note.
This Competitive Bid Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement (the "Credit Agreement")
dated as of December 4, 1992, as amended, among CBI Industries, Inc., the
Specified Subsidiaries party thereto, the Bank, the other banks referred to
therein, and Ibis Investments, Inc. as Bid Advance Agent, and the Specified
Subsidiary Agreement of even date herewith executed by the Company pursuant to
which the Company agreed to be bound by the terms of the Credit Agreement.
The Credit Agreement, among other things, (i) provides in Section 1.4 thereof
for the making and maintaining of advances by the Bank to the Company from
time to time in an aggregate amount not to exceed at any time outstanding the
maximum amount of Permitted Advances (as defined in the Credit Agreement)
available to the Company pursuant to Section 1.4 of the Credit Agreement and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
[NAME OF SPECIFIED SUBSIDIARY]
Dated as of
By:
Competitive Note Grid
[Name of Subsidiary]
ADVANCES, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of
Amount Maturity Principal Unpaid
of Type of of Paid or Principal Notation
Date Advance Advance Advance Prepaid Balance Made By
______________________________________________________________________________
EXHIBIT 5.4(h)
[Date]
To each of the Banks parties
to the Credit Agreement dated
December 4, 1992, as amended,
among CBI Industries, Inc., said
Banks, and Ibis Investments, Inc.
as Bid Advance Agent
Gentlemen:
This opinion is furnished to you pursuant to Section 5.4(b) of the
Credit Agreement dated as of December 4, 1992, as amended (the "Credit
Agreement") among CBI Industries, Inc. (the "Company"), the Specified
Subsidiaries party thereto, the Banks parties thereto, and Ibis Investments,
Inc. as Bid Advance Agent for said Banks. Terms defined in the Credit
Agreement are used herein as therein defined.
As Senior Vice President and General Counsel to the Company, I have
participated in the preparation, execution, and delivery of the Specified
Subsidiary Agreement and the Notes dated as of executed by
[Name of Subsidiary] (the "Applicable Subsidiary"). In that connection I have
examined:
1. The Credit Agreement;
2. The Specified Subsidiary Agreement; and
2. The documents furnished pursuant to Section 5.4 of the Credit
Agreement.
In addition, I have reviewed such of the corporate proceedings of the
Company and the Applicable Subsidiary, and have examined such documents,
corporate records, certificates of public officials and of officers of the
Company and the Applicable Subsidiary, agreements, and other instruments as I
have deemed necessary for the purpose of this opinion. I have assumed the due
execution and delivery, pursuant to due authorization, of the Credit Agreement
by the Banks and the Bid Advance Agent, and the authenticity of all documents
submitted to me as originals and the conformity to the original documents of
all documents submitted to me as certified, conformed, or photostatic copies.
I am qualified to practice law in the State of Illinois and do not
purport to be an expert on, and do not express any opinion herein concerning,
any laws other than the laws of the State of Illinois, the General Corporation
Law of the State of Delaware, and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Applicable Subsidiary is a corporation duly incorporated,
validly existing, and in good standing under the laws of its state
of incorporation and has the corporate power and authority to
carry on its business as now being conducted and to own its
properties. The Applicable Subsidiary has been duly qualified as
a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in the
United States in which the failure to so qualify could reasonably
be expected to have a Material Adverse Effect.
2. The execution, delivery, and performance by the Applicable
Subsidiary of the Specified Subsidiary Agreement and its Notes are
within such Applicable Subsidiary's corporate powers, have been
duly authorized by all necessary corporate action, and do not (i)
contravene, or constitute a default under, such Applicable
Subsidiary's certificate of incorporation or by-laws, or any
judgment, law, rule, or regulation known to me applicable to the
Applicable Subsidiary, or any indenture, mortgage, deed of trust,
or other material agreement or instrument by which the Applicable
Subsidiary is bound or (ii) result in the creation of any lien,
charge, or encumbrance upon any of the property or assets of the
Applicable Subsidiary . The Specified Subsidiary Agreement and
the Notes have been duly executed and delivered on behalf of the
Applicable Subsidiary.
3. No authorization, approval, or other action by, and no notice to
or filing with, any Governmental Authority is required for the due
execution, delivery, and performance by the Applicable Subsidiary
of the Specified Subsidiary Agreement and the Notes.
4. The Specified Subsidiary Agreement and the applicable Notes are
valid and legally binding obligations of the Applicable Subsidiary
enforceable against the Applicable Subsidiary in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
5. There is no pending or, to the best of my knowledge, threatened
action or proceeding against the Applicable Subsidiary before any
Governmental Authority which purports to affect the legality,
validity, or enforceability of the Credit Agreement, the Specified
Subsidiary Agreement, or the applicable Notes.
Very truly yours,
Charles O. Ziemer
Senior Vice President and General Counsel
EXHIBIT 5.5
SUBSIDIARY GUARANTY
THIS GUARANTY dated as of December 4, 1992, is executed in favor of the
Banks which are parties to the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, CBI Industries, Inc. (the "Company") has entered into a Credit
Agreement dated as of even date herewith (as amended or otherwise modified
from time to time, the "Credit Agreement") with certain financial institutions
(collectively the "Banks") and individually each a "Bank") and Ibis
Investments, Inc., as Bid Advance Agent, pursuant to which the Banks have
agreed to make advances to the Company and various subsidiaries thereof; and
WHEREAS, the Company has guaranteed all obligations of its subsidiaries
in connection with any borrowings by such subsidiaries under the Credit
Agreement; and
WHEREAS, each Guarantor (as a Subsidiary of the Company) and the Company
share some common interests as members of a group of companies; and
WHEREAS, each of the undersigned will benefit, directly or indirectly,
from the making of advances pursuant to the Credit Agreement and is willing to
guaranty the Liabilities (as defined below) as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
jointly and severally unconditionally, as primary obligor and not merely as
surety, guarantees the full and prompt payment when due, whether by
acceleration or otherwise, and at all times thereafter, of all obligations
(monetary or otherwise) of the Company to each of the Banks under or in
connection with the Credit Agreement and the Notes (as defined in the Credit
Agreement), howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or to
become due (all such obligations, including (without limitation) all
obligations under Article XI of the Credit Agreement, being herein
collectively called the "Liabilities"); provided, however, that the liability
of each of the undersigned hereunder shall be limited to the maximum amount of
the Liabilities which such undersigned may guaranty without violating any
fraudulent conveyance or fraudulent transfer law (plus all costs and expenses
paid or incurred by any Bank in enforcing this Guaranty against such
undersigned).
This Guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the
undersigned or that at any time or from time to time no Liabilities are
outstanding) until all Commitments (as defined in the Credit Agreement) have
terminated and all Liabilities have been finally paid in full.
The undersigned further agree that if at any time all or any part of any
payment theretofore applied by any Bank to any of the Liabilities is or must
be rescinded or returned by such Bank for any reason whatsoever (including,
without limitation, the insolvency, bankruptcy or reorganization of the
Company, any Specified Subsidiary (as defined in the Credit Agreement) or any
of the undersigned), such Liabilities shall, for the purposes of this
Guaranty, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
such Bank, and this Guaranty shall continue to be effective or be reinstated,
as the case may be, as to such Liabilities, all as though such application by
such Bank had not been made.
Any Bank may, from time to time, at its sole discretion and without
notice to the undersigned (or any of them), take any or all of the following
actions without affecting the rights of the Banks or the obligations of the
undersigned hereunder: (a) retain or obtain a security interest in any
property to secure any of the Liabilities or any obligation hereunder, (b)
retain or obtain the primary or secondary obligation of any obligor or
obligors, in addition to the undersigned, with respect to any of the
Liabilities, (c) extend or renew any of the Liabilities for one or more
periods (whether or not longer than the original period), alter or exchange
any of the Liabilities, or release or compromise any obligation of any of the
undersigned hereunder or any obligation of any nature of any other obligor
with respect to any of the Liabilities, (d) release its security interest in,
or surrender, release or permit any substitution or exchange for, all or any
part of any property securing any of the Liabilities or any obligation
hereunder, or extend or renew for one or more periods (whether or not longer
than the original period) or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect to any such property,
and (e) resort to the undersigned (or any of them) for payment of any of the
Liabilities when due, whether or not such Bank shall have resorted to any
property securing any of the Liabilities or any obligation hereunder or shall
have proceeded against any other of the undersigned or any other obligor
primarily or secondarily obligated with respect to any of the Liabilities.
Any amounts received by any Bank from whatever source on account of the
Liabilities may be applied by it toward the payment of the Liabilities; and,
notwithstanding any payments made by or for the account of any of the
undersigned pursuant to this Guaranty, the undersigned shall not be subrogated
to any rights of any Bank until such time as this Guaranty shall have been
discontinued as to all of the undersigned and the Banks shall have received
payment of the full amount of all liabilities of all of the undersigned
hereunder.
The undersigned hereby expressly waive: (a) notice of the acceptance by
any Bank of this Guaranty, (b) notice of the existence or creation or non-
payment of all or any of the Liabilities, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, and (d) all diligence in
collection or protection of or realization upon any Liabilities or any
security for or guaranty of any Liabilities.
Each of the undersigned further agrees to pay all reasonable expenses
(including reasonable attorneys' fees and legal expenses) paid or incurred by
any Bank in endeavoring to collect the Liabilities of such undersigned, or any
part thereof, and in enforcing this Guaranty against such undersigned.
Subject to the provisions of the Credit Agreement, any Bank may from
time to time, without notice to the undersigned (or any of them), assign or
transfer any or all of the Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent assignment
or transfer thereof, such Liabilities shall be and remain Liabilities for the
purposes of this Guaranty, and each and every immediate and successive
assignee or tranferee of any of the Liabilities or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this Guaranty to the same extent
as if such assignee or transferee were a Bank.
No delay on the part of any Bank in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by any
Bank of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy; nor shall any modification or
waiver of any provision of this Guaranty be binding upon the Banks except as
expressly set forth in a writing duly signed and delivered on behalf of the
Banks. No action of any Bank permitted hereunder shall in any way affect or
impair the rights of any Bank or the obligations of the undersigned under this
Guaranty.
This Guaranty shall be binding upon the undersigned and the successors
and assigns of the undersigned; and to the extent that the Company or any of
the undersigned is either a partnership or a corporation, all references
herein to the Company and to the undersigned, respectively, shall be deemed to
include any successor or successors, whether immediate or remote, to such
partnership or corporation. The term "undersigned" as used herein shall mean
all parties executing this Guaranty and each of them, and all such parties
shall be jointly and severally obligated hereunder.
This Guaranty has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State of
Illinois. Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Guaranty. At any time after the date of this
Guaranty, one or more additional persons or entities may become parties hereto
by executing and delivering to the Banks counterparts of this Guaranty.
Immediately upon such execution and delivery (and without any further action),
each such additional person or entity will become a party to, and will be
bound by all of the terms of, this Guaranty.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
OPTION OF ANY BANK, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE
UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING
TO THE BANKS AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH OF THE UNDERSIGNED HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY OF THE UNDERSIGNED HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE
OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH UNDERSIGNED HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY.
IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered
as of the day and year first above written.
[SUBSIDIARY]
By:
Address: Title:
[SUBSIDIARY]
By:
Address: Title:
[SUBSIDIARY]
By:
Address: Title:
The undersigned is executing a counterpart
hereof for purposes of becoming a party hereto:
By:
Address: Title:
EXHIBIT 7.18
LIST OF SUBSIDIARIES FOR SUBSIDIARY GUARANTY
Chicago Bridge and Iron Technical Services Company
Fairmac Realty Corp.
Indelco Inc.
Integrated Drilling and Exploration, Inc.
Liquid Carbonic Carbon Dioxide Corporation
Liquid Carbonic Industrial/Medical Corporation
Liquid Carbonic Industries Corporation
Liquid Carbonic Specialty Gas Corporation
MQS Inspection, Inc.
EXHIBIT 10.8
Contingency Agent Provisions
1. General. Each Bank hereby irrevocably authorizes the Contingency
Agent to take such action on its behalf under the provisions of this Agreement
and to exercise such powers and perform such duties as are expressly delegated
to the Contingency Agent by the terms of this Agreement, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Contingency Agent
shall not have any duties or responsibilities except those expressly set forth
herein, or any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations, or liabilities shall be read
into this Agreement or otherwise exist against the Contingency Agent.
2. Delegation of Duties. The Contingency Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to the advice of counsel concerning all matters pertaining
to such duties. The Contingency Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
3. Exculpatory Provisions. Neither the Contingency Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact, or affiliates
shall be (i) liable to any Bank for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations, or warranties made by the Company, any Specified Subsidiary,
or any officer of any thereof contained in this Agreement or in any
certificate, report, statement, or other document referred to or provided for
in, or received by the Contingency Agent under or in connection with, this
Agreement or the value, validity, effectiveness, genuineness, enforceability,
or sufficiency of this Agreement or for any failure of the Company or any
Specified Subsidiary to perform its obligations hereunder. The Contingency
Agent shall not be under any obligation to any Bank to ascertain or to inquire
as to the observance or performance of any of the agreements contained in this
Agreement, or to inspect the properties, books, or records of the Company or
any Specified Subsidiary.
4. Reliance by Contingency Agent. The Contingency Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex, or teletype message, statement, order, or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent, or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Company or any Specified Subsidiary), independent accountants, and other
experts selected by the Contingency Agent. The Contingency Agent shall be
fully justified in failing or refusing to take any discretionary action under
this Agreement unless it shall first receive such advice or concurrence of the
Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
5. Non-Reliance on Contingency Agent and Other Banks. Each Bank
expressly acknowledges that neither the Contingency Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact, or affiliates has
made any representations or warranties to it and that no act by the
Contingency Agent hereinafter taken, including any individual review of the
affairs of the Company or any Specified Subsidiary, shall be deemed to
constitute any representation or warranty by the Contingency Agent to any
Bank. Each Bank represents to the Contingency Agent that it has,
independently and without reliance upon the Contingency Agent or any other
Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial, and other condition and credit-worthiness of
the Company and its Subsidiaries and made its own decision to make its loans
hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon the Contingency Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals,
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial, and other condition and credit-worthiness of
the Company and its Subsidiaries. Except for notices expressly required to be
furnished to the Banks by the Contingency Agent hereunder, the Contingency
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, operations, property,
financial, and other condition and credit-worthiness of the Company or any
Subsidiary. Except for notices expressly required to be furnished to the
Banks by the Contingency Agent hereunder, the Contingency Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, financial, and
other condition or credit-worthiness of the Company or any Subsidiary,
including information of a Default or Event of Default, which may come into
the possession of the Contingency Agent or any of its officers, directors,
employees, agents, attorneys-in-fact, or affiliates.
6. Indemnification. The Banks agree to indemnify the Contingency
Agent in its capacity as such (to the extent not reimbursed by the Company or
any Subsidiary and without limiting the obligation of the Company or any
Subsidiary to do so), ratably according to their respective Commitments in
effect (or, if the Commitments are no longer in effect, according to the
respective unpaid principal amount of the Advances) on the date of incurrence
by the Contingency Agent of an indemnifiable cost hereunder, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements of any kind whatsoever,
which may at any time (including without limitation at any time following the
payments of the Advances) be imposed on, incurred by, or asserted against the
Contingency Agent in any way relating to or arising out of this Agreement, or
any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Contingency Agent
under or in connection with any of the foregoing; provided that no Bank shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting solely from the Contingency Agent's gross negligence
or willful misconduct. The agreements in this Section shall survive the
payment of the Advances and all other amounts payable hereunder.
7. Contingency Agent in Its Individual Capacity. The Contingency
Agent and its affiliates may make loans to, accept deposits from, and
generally engage in any kind of business with the Company and its Subsidiaries
as though the Contingency Agent were not the Contingency Agent hereunder.
With respect to its Advances made by it, the Contingency Agent shall have the
same rights and powers under this Agreement as any Bank and may exercise the
same as though it were not the Contingency Agent, and the terms "Bank" and
"Banks" shall include the Contingency Agent in its individual capacity.
8. Successor Contingency Agent. The Contingency Agent may resign as
Contingency Agent upon 30 days' notice thereof to the Company and the Banks.
The Contingency Agent shall resign as Contingency Agent upon 30 days' notice
from the Majority Banks to the Contingency Agent requesting such resignation.
If the Contingency Agent shall or shall be notified to resign as Contingency
Agent under this Agreement, then the Majority Banks shall appoint from among
the Banks a successor agent for the Banks, which successor agent shall be
reasonably acceptable to the Company, whereupon such successor agent shall
succeed to the rights, power, and duties of the Contingency Agent, and the
term "Contingency Agent" shall mean such successor agent effective upon its
appointment, and the former Contingency Agent's rights, powers, and duties as
Contingency Agent shall be terminated, without any other or further act or
deed on the part of such former Contingency Agent or any of the parties to
this Agreement. After any retiring Contingency Agent's resignation hereunder
as Contingency Agent, the provisions of this Section shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Contingency Agent under this Agreement. Anything contained in this Agreement
to the contrary notwithstanding, if a successor agent is appointed as a result
of the resignation of the Contingency Agent pursuant to the second sentence of
this Section, then the costs incurred by such successor agent (including the
reasonable fees of counsel to such successor agent) in connection with its
preparation to perform its obligations hereunder in such capacity shall be
paid by those Banks which shall have delivered the applicable resignation
notice to the Contingency Agent and the Company.