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EXHIBIT 99.1
CONFORMED COPY
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CHICAGO BRIDGE & IRON COMPANY N.V.
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
CBI SERVICES, INC.
CB&I CONSTRUCTORS, INC.
CB&I TYLER COMPANY
$75,000,000
7.34% Senior Notes
Due July 15, 2007
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NOTE PURCHASE AGREEMENT
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Dated as of July 1, 2001
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PPN: 16725# AA 4
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TABLE OF CONTENTS
Section Page
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1. AUTHORIZATION OF NOTES..................................................................................1
2. SALE AND PURCHASE OF NOTES..............................................................................2
3. CLOSING.................................................................................................2
4. CONDITIONS TO CLOSING...................................................................................2
4.1. Representations and Warranties.................................................................2
4.2. Performance; No Default........................................................................3
4.3. Compliance Certificates........................................................................3
4.4. Opinions of Counsel............................................................................3
4.5. Purchase Permitted By Applicable Law, etc......................................................3
4.6. Sale of Other Notes............................................................................4
4.7. Payment of Special Counsel Fees................................................................4
4.8. Private Placement Number.......................................................................4
4.9. Changes in Corporate Structure.................................................................4
4.10. Subsidiary Guaranty............................................................................4
4.11. Proceedings and Documents......................................................................4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................................................4
5.1. Organization; Power and Authority..............................................................5
5.2. Authorization, etc.............................................................................5
5.3. Disclosure.....................................................................................5
5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates...............................6
5.5. Financial Statements...........................................................................7
5.6. Compliance with Laws, Other Instruments, etc...................................................7
5.7. Governmental Authorizations, etc...............................................................8
5.8. Litigation; Observance of Agreements, Statutes and Orders......................................8
5.9. Taxes..........................................................................................8
5.10. Title to Property; Leases......................................................................9
5.11. Licenses, Permits, etc.........................................................................9
5.12. Compliance with ERISA.........................................................................10
5.13. Private Offering by the Company...............................................................11
5.14. Use of Proceeds; Margin Regulations...........................................................11
5.15. Existing Indebtedness; Future Liens...........................................................11
5.16. Foreign Assets Control Regulations, etc.......................................................12
5.17. Status under Certain Statutes.................................................................12
5.18. Environmental Matters.........................................................................12
5.19. Solvency of Subsidiary Guarantors.............................................................13
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6. REPRESENTATIONS OF THE PURCHASERS......................................................................13
6.1. Purchase for Investment.......................................................................13
6.2. Source of Funds...............................................................................13
7. INFORMATION AS TO COMPANY..............................................................................14
7.1. Financial and Business Information............................................................14
7.2. Officer's Certificate.........................................................................17
7.3. Inspection....................................................................................17
8. PREPAYMENT OF THE NOTES................................................................................18
8.1. Required Prepayments..........................................................................18
8.2. Optional Prepayments with Make-Whole Amount...................................................19
8.3. Allocation of Partial Prepayments.............................................................20
8.4. Maturity; Surrender, etc......................................................................20
8.5. Purchase of Notes.............................................................................20
8.6. Make-Whole Amount.............................................................................20
9. AFFIRMATIVE COVENANTS..................................................................................22
9.1. Compliance with Law...........................................................................22
9.2. Insurance.....................................................................................22
9.3. Maintenance of Properties.....................................................................22
9.4. Payment of Taxes and Claims...................................................................22
9.5. Corporate Existence, etc......................................................................23
10. NEGATIVE COVENANTS.....................................................................................23
10.1. Consolidated Net Worth........................................................................23
10.2. Indebtedness..................................................................................23
10.3. Fixed Charge Ratio............................................................................24
10.4. Permitted Investments.........................................................................24
10.5. Priority Debt.................................................................................25
10.6. Indebtedness of Subsidiaries..................................................................25
10.7. Liens.........................................................................................26
10.8. Sale of Assets................................................................................27
10.9. Mergers, Consolidations, etc..................................................................28
10.10. Nature of Business............................................................................29
10.11. Subsidiary Guaranties.........................................................................29
10.12. Assets of Non-Guarantor Subsidiaries..........................................................29
10.13. Transactions with Affiliates..................................................................30
10.14. Parent Guaranty...............................................................................30
11. EVENTS OF DEFAULT......................................................................................30
12. REMEDIES ON DEFAULT, ETC...............................................................................32
12.1. Acceleration..................................................................................32
12.2. Other Remedies................................................................................33
12.3. Rescission....................................................................................33
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12.4. No Waivers or Election of Remedies, Expenses, etc.............................................34
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES..........................................................34
13.1. Registration of Notes.........................................................................34
13.2. Transfer and Exchange of Notes................................................................34
13.3. Replacement of Notes..........................................................................35
14. PAYMENTS ON NOTES......................................................................................35
14.1. Place of Payment..............................................................................35
14.2. Home Office Payment...........................................................................35
14.3. All Payments Free and Clear...................................................................36
15. EXPENSES, ETC..........................................................................................37
15.1. Transaction Expenses..........................................................................37
15.2. Survival......................................................................................38
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT...........................................38
17. AMENDMENT AND WAIVER...................................................................................38
17.1. Requirements..................................................................................38
17.2. Solicitation of Holders of Notes..............................................................39
17.3. Binding Effect, etc...........................................................................39
17.4. Notes held by Company, etc....................................................................39
18. NOTICES................................................................................................40
19. REPRODUCTION OF DOCUMENTS..............................................................................40
20. CONFIDENTIAL INFORMATION...............................................................................41
21. SUBSTITUTION OF PURCHASER..............................................................................42
22. MISCELLANEOUS..........................................................................................42
22.1. Successors and Assigns........................................................................42
22.2. Payments Due on Non-Business Days.............................................................42
22.3. Severability..................................................................................42
22.4. Construction..................................................................................42
22.5. Counterparts..................................................................................43
22.6. Governing Law.................................................................................43
22.7. Submission to Jurisdiction....................................................................43
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SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 5.3 -- Disclosure of Changes
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of
Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Licenses, Permits, etc.
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Indebtedness
SCHEDULE 5.18 -- Environmental Matters
SCHEDULE 5.19 -- Exceptions to Solvency Representation
SCHEDULE 10.4 -- Existing Investments
SCHEDULE 10.7 -- Existing Liens
EXHIBIT 1(a) -- Form of Senior Note
EXHIBIT 1(b) -- Form of Subsidiary Guaranty
EXHIBIT 4.4(a) -- Form of Opinion of Counsel to the Company, the
Co-Obligors and the Subsidiary Guarantors
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel to the Purchasers
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CHICAGO BRIDGE & IRON COMPANY N.V.
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
CBI SERVICES, INC.
CB&I CONSTRUCTORS, INC.
CB&I TYLER COMPANY
1501 North Division Street
Plainfield, Illinois 60544-8984
(815) 439-6000
Fax: (815) 439-6010
$75,000,000
7.34% Senior Notes
Due July 15, 2007
Dated as of July 1, 2001
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
CHICAGO BRIDGE & IRON COMPANY N.V., a company organized under
the laws of the Kingdom of the Netherlands having its corporate seat in
Amsterdam (the "Company"); and CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a
Delaware corporation, CBI SERVICES, INC., a Delaware corporation, CB&I
CONSTRUCTORS, INC., a Texas corporation, and CB&I TYLER COMPANY, a Delaware
corporation (each of the foregoing being a Wholly Owned Subsidiary of the
Company and hereinafter referred to individually as a "Co-Obligor" and
collectively as the "Co-Obligors"), jointly and severally, agree with you as
follows:
1. AUTHORIZATION OF NOTES.
The Co-Obligors have authorized the issue and sale of
$75,000,000 aggregate principal amount of their 7.34% Senior Notes, due July 15,
2007 (the "Notes", such term to include any such Notes issued in substitution
therefor pursuant to Section 13 of this Agreement). The Notes shall be
substantially in the form set out in Exhibit 1(a), with such changes therefrom,
if any, as may be approved by you, the Other Purchasers, the Company and the
Co-Obligors. Certain capitalized terms used in this Agreement are defined in
Schedule B; references to a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to this Agreement. The Notes
will be guaranteed by certain Subsidiaries (individually, a "Subsidiary
Guarantor" and collectively, the "Subsidiary Guarantors") pursuant to the
guaranty
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in substantially the form of Exhibit 1(b) (the "Subsidiary Guaranty"). The Notes
will rank pari passu with the Indebtedness of the Co-Obligors under the Credit
Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the
Co-Obligors will issue and sell to you and each of the other purchasers named in
Schedule A (the "Other Purchasers"), and you and the Other Purchasers will
purchase from the Co-Obligors, at the Closing provided for in Section 3, Notes
in the principal amount specified opposite your names in Schedule A at the
purchase price of 100% of the principal amount thereof. Your obligation
hereunder and the obligations of the Other Purchasers are several and not joint
obligations and you shall have no liability to any Person for the performance or
non-performance by any Other Purchaser hereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by you and
the Other Purchasers shall occur at the offices of Gardner, Carton & Douglas,
Quaker Tower, Suite 3400, 321 North Clark Street, Chicago, Illinois 60610 at
9:00 a.m., Chicago time, at a closing (the "Closing") on July 11, 2001 or on
such other Business Day thereafter on or prior to July 30, 2001 as may be agreed
upon by the Company and you and the Other Purchasers. At the Closing the
Co-Obligors will deliver to you the Notes to be purchased by you in the form of
a single Note (or such greater number of Notes in denominations of at least
$500,000 as you may request) dated the date of the Closing and registered in
your name (or in the name of your nominee), against delivery by you to the
Co-Obligors or their order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately available funds for the
accounts of the Co-Obligors to account number 55-92003 at Bank One, NA, Chicago,
Illinois, ABA No. 071000013. If at the Closing the Co-Obligors shall fail to
tender such Notes to you as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to your
satisfaction, you shall, at your election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights you may
have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold
to you at the Closing is subject to the fulfillment to your satisfaction, prior
to or at the Closing, of the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company and the
Co-Obligors in this Agreement shall be correct when made and correct in all
material respects at the time of the Closing.
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4.2. PERFORMANCE; NO DEFAULT.
The Company and the Co-Obligors shall have performed and
complied with all agreements and conditions contained in this Agreement required
to be performed or complied with by them prior to or at the Closing and after
giving effect to the issue and sale of the Notes (and the application of the
proceeds thereof as contemplated by Schedule 5.14) no Default or Event of
Default shall have occurred and be continuing.
4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificate. Each of the Company and the
Co-Obligors shall have delivered to you an Officer's Certificate, dated
the date of the Closing, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. Each of the Company and the
Co-Obligors shall have delivered to you a certificate certifying as to
the resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of the Notes and
the Agreement.
4.4. OPINIONS OF COUNSEL.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from (i) Winston &
Strawn, special counsel for the Company, the Co-Obligors and the Subsidiary
Guarantors, (ii) Robert H. Wolfe, Esq., Vice President, General Counsel and
Secretary of Chicago Bridge & Iron Company, General Counsel to the Company, the
Co-Obligors and the Subsidiary Guarantors, and (iii) De Brauw Blackstone
Westbroek P.C., special Dutch counsel for the Company, the Co-Obligors and the
Subsidiary Guarantors, covering the matters set forth in Exhibit 4.4(a) and
covering such other matters incident to the transactions contemplated hereby as
you or your counsel may reasonably request (and the Company and the Co-Obligors
request their counsel to deliver such opinion to you) and (b) from Gardner,
Carton & Douglas, your special counsel in connection with such transactions,
substantially in the form set forth in Exhibit 4.4(b) and covering such other
matters incident to such transactions as you may reasonably request.
4.5. PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing your purchase of Notes shall (i)
be permitted by the laws and regulations of each jurisdiction to which you are
subject, without recourse to provisions (such as section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (ii) not
violate any applicable law or regulation (including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
and (iii) not subject you to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date hereof. If requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
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4.6. SALE OF OTHER NOTES.
Contemporaneously with the Closing the Co-Obligors shall sell
to the Other Purchasers and the Other Purchasers shall purchase the Notes to be
purchased by them at the Closing as specified in Schedule A.
4.7. PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 15.1, the Company
and the Co-Obligors shall have paid on or before the Closing the fees, charges
and disbursements of your special counsel referred to in Section 4.4, to the
extent reflected in a statement of such counsel rendered to the Company at least
one Business Day prior to the Closing.
4.8. PRIVATE PLACEMENT NUMBER.
A Private Placement Number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have been obtained for
the Notes by Gardner, Carton & Douglas.
4.9. CHANGES IN CORPORATE STRUCTURE.
Neither the Company nor any of the Co-Obligors shall have
changed its jurisdiction of incorporation or been a party to any merger or
consolidation and shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
4.10. SUBSIDIARY GUARANTY.
Each Subsidiary Guarantor shall have executed and delivered
the Subsidiary Guaranty.
4.11. PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory to you and your special
counsel, and you and your special counsel shall have received all such
counterpart originals or certified or other copies of such documents as you or
they may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Each of the Company and the Co-Obligors, jointly and
severally, represents and warrants to you that:
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5.1. ORGANIZATION; POWER AND AUTHORITY.
Each of the Company and the Co-Obligors is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and is duly qualified as a foreign corporation
and is in good standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each of the Company
and the Co-Obligors has the corporate power and authority to own or hold under
lease the properties it purports to own or hold under lease, to transact the
business it transacts and proposes to transact, to execute and deliver this
Agreement and, in the case of the Co-Obligors, the Notes, and to perform the
provisions hereof and thereof.
5.2. AUTHORIZATION, ETC.
This Agreement and, in the case of the Co-Obligors, the Notes
have been duly authorized by all necessary corporate action on the part of the
Company and each Co-Obligor, as the case may be, and this Agreement constitutes,
and, in the case of each Co-Obligor, upon execution and delivery thereof each
Note will constitute, a legal, valid and binding obligation of the Company and
each Co-Obligor, enforceable against the Company and each Co-Obligor, as the
case may be, in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
The Subsidiary Guaranty has been duly authorized by all
necessary corporate action on the part of each Subsidiary Guarantor and upon
execution and delivery thereof will constitute the legal, valid and binding
obligation of each Subsidiary Guarantor, enforceable against each Subsidiary
Guarantor in accordance with its respective terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.3. DISCLOSURE.
The Company and the Co-Obligors, through their agent, Banc
One Capital Markets, Inc., have delivered to you and each Other Purchaser copies
of the Form 10-K and a Private Placement Memorandum, dated May 2001 (the
"Memorandum"), relating to the transactions contemplated hereby. The Memorandum
and the Form 10-K fairly describe, in all material respects, the general nature
of the business of the Company and its Subsidiaries, including the Co-Obligors,
taken as a whole. Except for projections, as to which no representation or
warranty is made, this Agreement, the Memorandum, the Form 10-K, the Form 10-Q,
the documents, certificates or other writings delivered to you by or on behalf
of the Company and the Co-Obligors specifically for use in connection with the
transactions contemplated hereby and the financial statements listed in Schedule
5.5, taken as a whole, do not
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contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made. The projections provided to you are
based upon good faith estimates and assumptions believed by the Company to be
reasonable. Except as disclosed in the Memorandum, the Form 10-K, the Form 10-Q
or the Company's press release dated June 18, 2001, or as expressly described in
Schedule 5.3, or in one of the documents identified therein, or in the financial
statements listed in Schedule 5.5, since December 31, 2000, there has been no
change in the financial condition, operations, business, properties or prospects
of the Company and its Subsidiaries, taken as a whole, except changes that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. There is no fact known to the Company or the
Co-Obligors that could reasonably be expected to have a Material Adverse Effect
that has not been set forth herein or in the Memorandum, the Form 10-K, the Form
10-Q or the Company's press release dated June 18, 2001, or in the other
documents, certificates and other writings delivered to you by or on behalf of
the Company and the Co-Obligors specifically for use in connection with the
transactions contemplated hereby.
5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES; AFFILIATES.
(a) Schedule 5.4 contains (except as noted therein) complete
and correct lists (i) of the Company's Subsidiaries, showing, as to
each Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and
each other Subsidiary, (ii) of the Company's Affiliates, other than
Subsidiaries, and (iii) of the directors and senior officers of the
Company and each Co-Obligor.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being
owned by the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Company or another
Subsidiary free and clear of any Lien (except as otherwise disclosed in
Schedule 5.4). All of the outstanding shares of capital stock or
similar equity interests of the Co-Obligors have been validly issued,
are fully paid and nonassessable and are owned by the Company free and
clear of any Lien.
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing and
in good standing (to the extent such concept is applicable) under the
laws of its jurisdiction of organization, and is duly qualified as a
foreign corporation or other legal entity and is in good standing in
each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or
in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each such
Subsidiary has the corporate or other power and authority to own or
hold under lease the properties it purports to own or hold under lease
and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any
legal restriction or any agreement (other than this Agreement, the
agreements listed on Schedule 5.4 and
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customary limitations imposed by corporate law statutes) restricting
the ability of such Subsidiary to pay dividends out of profits or make
any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar
equity interests of such Subsidiary.
5.5. FINANCIAL STATEMENTS.
The Company has delivered to you and each Other Purchaser
copies of the financial statements of the Company and its Subsidiaries listed on
Schedule 5.5. All of said financial statements (including in each case the
related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of the
respective dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments).
5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Company and
the Co-Obligors of this Agreement and, in the case of the Co-Obligors, the Notes
will not (i) contravene, result in any breach of, or constitute a default under,
or result in the creation of any Lien in respect of any property of the Company
or any Co-Obligor under, any indenture, mortgage, deed of trust, loan, purchase
or credit agreement, lease, corporate charter or by-laws, or any other Material
agreement or instrument to which the Company or any Co-Obligor is bound or by
which any of their respective properties may be bound or affected, (ii) conflict
with or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to the Company or any Subsidiary, or (iii) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Company or any Subsidiary.
The execution, delivery and performance by each Subsidiary
Guarantor of the Subsidiary Guaranty will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation of any Lien
in respect of any property of such Subsidiary Guarantor under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other material agreement or instrument to which such
Subsidiary Guarantor is bound or by which such Subsidiary Guarantor or any of
its properties may be bound or affected, (ii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to such Subsidiary Guarantor or (iii) violate any provision of any statute or
other rule or regulation of any Governmental Authority applicable to such
Subsidiary Guarantor.
5.7. GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required in connection
with the execution, delivery or performance by the Company and the Co-Obligors
of this Agreement or, in the case of the Co-
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Obligors, the Notes or the execution, delivery or performance by each Subsidiary
Guarantor of the Subsidiary Guaranty.
5.8. LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8 or in Item 3 of the
Form 10-K, there are no actions, suits or proceedings pending or, to
the knowledge of the Company and the Co-Obligors, threatened against or
affecting the Company or any Subsidiary or any property of the Company
or any Subsidiary in any court or before any arbitrator of any kind or
before or by any Governmental Authority that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
(b) Neither the Company nor any Subsidiary is in default
under any term of any agreement or instrument to which it is a party or
by which it is bound, or any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including without
limitation Environmental Laws) of any Governmental Authority, which
default or violation, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
5.9. TAXES.
(a) The Company and its Subsidiaries have filed all income
tax returns and all other material tax returns that are required to
have been filed in any jurisdiction, and have paid all taxes shown to
be due and payable on such returns and all other taxes and assessments
levied upon them or their properties, assets, income or franchises, to
the extent such taxes and assessments have become due and payable and
before they have become delinquent, except for any taxes and
assessments (i) the amount of which is not individually or in the
aggregate Material or (ii) the amount, applicability or validity of
which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as
the case may be, has established adequate reserves in accordance with
GAAP. Neither the Company nor any Co-Obligor knows of a basis for any
other tax or assessment that could reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of Federal, state
or other taxes for all fiscal periods are adequate. The Federal income
tax liabilities of the Company and its Subsidiaries have been
determined by the Internal Revenue Service and paid for all fiscal
years up to and including the fiscal year ended December 31, 1996.
(b) No liability for any tax (whether income, documentary,
sales, stamp, registration, issue, capital, property, excise or
otherwise), duty levy, impost, fee, charge or withholding (each a "Tax"
and collectively "Taxes"), directly or indirectly, imposed, assessed,
levied or collected by or for the account of any Governmental Authority
of or in the Netherlands or any political subdivision thereof or
therein (an "Applicable Taxing Authority") will be incurred by the
Company, any Co-Obligor or any Subsidiary Guarantor or any holder of a
Note as a result of the execution or delivery of this
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Agreement or the Notes and, based on present law, no deduction or
withholding in respect of Taxes imposed by or for the account of any
Applicable Taxing Authority or any jurisdiction (other than the United
States of America) by or through which payments with respect to the
Notes or pursuant to this Agreement are made by or for the Company, any
Co-Obligor or any Subsidiary Guarantor is required to be made from any
payment by the Company or any Co-Obligor under this Agreement or the
Notes or by any Subsidiary Guarantor under the Subsidiary Guaranty
except for any such withholding or deduction arising out of the
conditions described in the proviso to Section 14.3(a).
5.10. TITLE TO PROPERTY; LEASES.
The Company and its Subsidiaries have good and sufficient
title to their respective properties that individually or in the aggregate are
Material, including all such properties reflected in the most recent audited
balance sheet referred to in Section 5.5 or purported to have been acquired by
the Company or any Subsidiary after said date (except as sold or otherwise
disposed of in the ordinary course of business), in each case free and clear of
Liens prohibited by this Agreement. All leases that individually or in the
aggregate are Material are valid and subsisting and are in full force and effect
in all material respects.
5.11. LICENSES, PERMITS, ETC.
Except as disclosed in Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that
individually or in the aggregate are Material, without known conflict
with the rights of others;
(b) to the best knowledge of the Company and the Co-Obligors,
no product of the Company or any of the Co-Obligors infringes in any
material respect any license, permit, franchise, authorization, patent,
copyright, service mark, trademark, trade name or other right owned by
any other Person; and
(c) to the best knowledge of the Company and the Co-Obligors,
there is no Material violation by any Person of any right of the
Company or any of its Subsidiaries, including the Co-Obligors, with
respect to any patent, copyright, service mark, trademark, trade name
or other right owned or used by the Company or any of its Subsidiaries,
including the Co-Obligors.
5.12. COMPLIANCE WITH ERISA.
(a) The Company and each ERISA Affiliate, including the
Co-Obligors, have operated and administered each Plan in compliance
with all applicable laws except for such instances of noncompliance as
have not resulted in and could not reasonably be expected to result in
a Material Adverse Effect. Neither the Company nor any ERISA Affiliate,
including the Co-Obligors, has incurred any liability pursuant to Title
I or IV of
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ERISA or the penalty or excise tax provisions of the Code relating to
employee benefit plans (as defined in section 3 of ERISA), and no
event, transaction or condition has occurred or exists that could
reasonably be expected to result in the incurrence of any such
liability by the Company or any ERISA Affiliate, including the
Co-Obligors, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, including
the Co-Obligors, in either case pursuant to Title I or IV of ERISA or
to such penalty or excise tax provisions or to section 401(a)(29) or
412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities
under each of the Plans (other than Multiemployer Plans), determined as
of the end of such Plan's most recently ended plan year on the basis of
the actuarial assumptions specified for funding purposes in such Plan's
most recent actuarial valuation report, did not exceed the aggregate
current value of the assets of such Plan allocable to such benefit
liabilities. The term "benefit liabilities" has the meaning specified
in section 4001 of ERISA and the terms "current value" and "present
value" have the meaning specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates, including the
Co-Obligors, have not incurred withdrawal liabilities (and are not
subject to contingent withdrawal liabilities) under section 4201 or
4204 of ERISA in respect of Multiemployer Plans that individually or in
the aggregate are Material.
(d) The expected postretirement benefit obligation
(determined as of the last day of the Company's most recently ended
fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, as amended by Financial Accounting Standards Board
Statement No. 132, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code) of the
Company and its Subsidiaries, including the Co-Obligors, is not
Material.
(e) The execution and delivery of this Agreement and the
issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of section 406 of ERISA
or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company and
the Co-Obligors in the first sentence of this Section 5.12(e) is made
in reliance upon and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds used to pay the purchase
price of the Notes to be purchased by you.
5.13. PRIVATE OFFERING BY THE COMPANY.
None of the Company, the Co-Obligors or anyone acting on
their behalf has offered the Notes or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise approached or
negotiated in respect thereof with, any Person other than you, the Other
Purchasers and not more than 50 other Institutional Investors, each of which has
been offered the Notes at a private sale (without general solicitation or
advertising) for
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investment. None of the Company, the Co-Obligors or anyone acting on their
behalf has taken, or will take, any action that would subject the issuance or
sale of the Notes to the registration requirements of section 5 of the
Securities Act.
5.14. USE OF PROCEEDS; MARGIN REGULATIONS.
The Co-Obligors will apply the proceeds of the sale of the
Notes to general corporate purposes, including to repay or refinance
Indebtedness as set forth in Schedule 5.14. No part of the proceeds from the
sale of the Notes hereunder will be used, directly or indirectly, for the
purpose of buying or carrying any margin stock within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for
the purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of Regulation X of said
Board (12 CFR 224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220). Margin stock does not constitute more
than 1.0% of the value of the consolidated assets of the Company and its
Subsidiaries and the Company does not have any present intention that margin
stock will constitute more than 1.0% of the value of such assets. As used in
this Section, the terms "margin stock" and "purpose of buying or carrying" shall
have the meanings assigned to them in said Regulation U.
5.15. EXISTING INDEBTEDNESS; FUTURE LIENS.
(a) Except as described therein, Schedule 5.15 sets forth a
complete and correct list of all outstanding Indebtedness of the
Company and its Subsidiaries as of March 31, 2001, since which date
there has been no Material change in the amounts, interest rates,
sinking funds, installment payments or maturities of the Indebtedness
of the Company or its Subsidiaries. Neither the Company nor any
Subsidiary, including any Co-Obligor, is in default and no waiver of
default is currently in effect, in the payment of any principal or
interest on any Indebtedness of the Company or such Subsidiary and no
event or condition exists with respect to any Indebtedness of the
Company or any Subsidiary the outstanding principal amount of which
exceeds $5,000,000 in the aggregate that would permit (or that with
notice or the lapse of time, or both, would permit) one or more Persons
to cause such Indebtedness to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company
nor any Subsidiary, including any Co-Obligor, has agreed or consented
to cause or permit in the future (upon the happening of a contingency
or otherwise) any of its property, whether now owned or hereafter
acquired, to be subject to a Lien not permitted by Section 10.7.
5.16. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
Neither the sale of the Notes by the Co-Obligors hereunder nor
their use of the proceeds thereof will violate the Trading with the Enemy Act,
as amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto.
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5.17. STATUS UNDER CERTAIN STATUTES.
Neither the Company nor any Subsidiary, including any
Co-Obligor, is subject to regulation under the Investment Company Act of 1940,
as amended, the Public Utility Holding Company Act of 1935, as amended, the
Interstate Commerce Act, as amended by the ICC Termination Act, as amended, or
the Federal Power Act, as amended.
5.18. ENVIRONMENTAL MATTERS.
Neither the Company nor any Subsidiary, including any
Co-Obligor, has knowledge of any claim or has received any notice of any claim,
and no proceeding has been instituted raising any claim against the Company or
any of its Subsidiaries, including any Co-Obligor, or any of their respective
real properties now or formerly owned, leased or operated by any of them or
other assets, alleging any damage to the environment or violation of any
Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect or as disclosed in Schedule 5.18
or in the Form 10-K. Except as otherwise described in Schedule 5.18,
(a) neither the Company nor any Subsidiary, including any
Co-Obligor, has knowledge of any facts that would give rise to any
claim, public or private, of violation of Environmental Laws or damage
to the environment emanating from, occurring on or in any way related
to real properties now or formerly owned, leased or operated by any of
them or to other assets or their use, except, in each case, such as
could not reasonably be expected to result in a Material Adverse
Effect;
(b) neither the Company nor any Subsidiary, including any
Co-Obligor, has stored any Hazardous Materials on real properties now
or formerly owned, leased or operated by any of them and has not
disposed of any Hazardous Materials in a manner contrary to any
Environmental Laws in each case in any manner that could reasonably be
expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or
operated by the Company or any of its Subsidiaries, including the
Co-Obligors, are in compliance with applicable Environmental Laws,
except where failure to comply could not reasonably be expected to
result in a Material Adverse Effect.
5.19. SOLVENCY OF SUBSIDIARY GUARANTORS.
Except as set forth on Schedule 5.19, after giving effect to
the transactions contemplated herein and after giving due consideration to any
rights of contribution (i) each Subsidiary Guarantor has received fair
consideration and reasonably equivalent value for the incurrence of its
obligations under the Subsidiary Guaranty, (ii) the fair value of the assets of
each Subsidiary Guarantor (both at fair valuation and at present fair saleable
value) exceeds its liabilities, (iii) each Subsidiary Guarantor is able to and
expects to be able to pay its debts as they mature, and (iv) each Subsidiary
Guarantor has capital sufficient to carry on its business as conducted and as
proposed to be conducted.
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6. REPRESENTATIONS OF THE PURCHASERS.
6.1. PURCHASE FOR INVESTMENT.
You represent that (i) you are an Institutional Investor (as
defined in clause b of such defined term set forth in Schedule B hereto) and an
"accredited investor" as defined in Rule 501(a) under the Securities Act and
(ii) you are purchasing the Notes to be purchased by you for your own account or
for one or more separate accounts maintained by you or for the account of one or
more pension or trust funds and not with a view to the distribution thereof,
provided that the disposition of your or their property shall at all times be
within your or their control. You understand that the Notes constitute
"restricted securities" and have not been registered under the Securities Act
and may be resold only if registered pursuant to the provisions of the
Securities Act or if an exemption from registration is available and that the
Co-Obligors are not required, and do not intend, to register the Notes.
6.2. SOURCE OF FUNDS.
You represent that at least one of the following statements
is an accurate representation as to each source of funds (a "Source") to be used
by you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) the Source is an "insurance company general account" as
such term is defined in the Department of Labor Prohibited Transaction
Exemption ("PTE") 95-60 (issued July 12, 1995) ("PTE 95-60") and as of
the date of this Agreement there is no "employee benefit plan" with
respect to which the aggregate amount of such general account's
reserves and liabilities for the contracts held by or on behalf of such
employee benefit plan and all other employee benefit plans maintained
by the same employer (and affiliates thereof as defined in section
V(a)(1) of PTE 95-60) or by the same employee organization (in each
case determined in accordance with the provisions of PTE 95-60) exceeds
10% of the total reserves and liabilities of such general account (as
determined under PTE 95-60) (exclusive of separate account liabilities)
plus surplus as set forth in the National Association of Insurance
Commissioners Annual Statement filed with your state of domicile; or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
PTE 91-38 (issued July 12, 1991) and, except as you have disclosed to
the Company in writing pursuant to this paragraph (b), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the
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assets of all other employee benefit plans established or maintained by
the same employer or by an affiliate (within the meaning of section
V(c)(1) of the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (e); or
(f) the Source is the assets of one or more employee benefit
plans that are managed by an "in-house asset manager," as that term is
defined in PTE 96-23 and such purchase and holding of the Notes is
exempt under PTE 96-23; or
(g) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to such
terms in section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. FINANCIAL AND BUSINESS INFORMATION
The Company will deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and
its Subsidiaries, for such quarter and (in the case of
the second and third quarters) for the portion of the
fiscal year ending with such quarter,
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setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the
consolidated financial position of the Company and its Subsidiaries as
of the specified dates being reported on and their consolidated results
of operations and cash flows for the respective periods specified,
subject to changes resulting from year-end adjustments, provided that
delivery within the time period specified above of copies of the
Company's Quarterly Report on Form 10-Q prepared in compliance with the
requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(a);
(b) Annual Statements -- within 120 days after the end of
each fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and
its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in
all material respects, the consolidated financial position of the
Company and its Subsidiaries as of the specified dates being reported
upon and their consolidated results of operations and cash flows for
the respective periods specified and have been prepared in conformity
with GAAP, and that the examination of such accountants in connection
with such financial statements has been made in accordance with
generally accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances, provided that
the delivery within the time period specified above of the Company's
Annual Report on Form 10-K for such fiscal year (together with the
Company's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission, together with such accountant's opinion, shall be deemed to
satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly
requested by such holder), and each prospectus and all amendments
thereto filed by the Company or any Subsidiary with the Securities and
Exchange Commission and of all press releases and other statements made
available generally by the Company or any Subsidiary to the public
concerning developments that are Material;
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(d) Notice of Default or Event of Default -- promptly, and in
any event within five Business Days after a Responsible Officer
becoming aware of the existence of any Default or Event of Default or
that any Person has given any notice or taken any action with respect
to a claimed default hereunder or that any Person has given any notice
or taken any action with respect to a claimed default of the type
referred to in Section 11(f), a written notice specifying the nature
and period of existence thereof and what action the Company is taking
or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five
Business Days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate, including any
Co-Obligor, proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date
hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of,
proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or
any ERISA Affiliate, including any Co-Obligor, of a
notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer
Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company
or any ERISA Affiliate, including any Co-Obligor,
pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on any of
the rights, properties or assets of the Company or any
ERISA Affiliate, including any Co-Obligor, pursuant to
Title I or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken together
with any other such liabilities or Liens then existing,
could reasonably be expected to have a Material Adverse
Effect;
(f) Notices from Governmental Authority -- promptly, and in
any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect; and
(g) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of any of
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them to perform its obligations hereunder and under the Notes or the
Subsidiary Guaranty as from time to time may be reasonably requested by
any such holder of Notes.
7.2. OFFICER'S CERTIFICATE.
Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or (b) shall be accompanied by a certificate of
a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Company and the Co-Obligors were in compliance with the requirements of
Sections 10.1 through 10.9, inclusive, and Section 10.12 during the
quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then
in existence); and
(b) Event of Default -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries, including the
Co-Obligors, from the beginning of the quarterly or annual period
covered by the statements then being furnished to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default
or an Event of Default or, if any such condition or event existed or
exists (including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary to comply
with any Environmental Law), specifying the nature and period of
existence thereof and what action the Company and the Co-Obligors shall
have taken or propose to take with respect thereto.
7.3. INSPECTION.
The Company and the Co-Obligors will permit the
representatives of each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive office of the Company
or any Co-Obligor, to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with the Company's officers, and (with the
consent of the Company, which consent will not be unreasonably
withheld) its independent public accountants, and (with the consent of
the Company, which consent will not be unreasonably withheld) to visit
the other offices and properties of the Company and each Subsidiary,
all at such reasonable times and as often as may be reasonably
requested in writing; and
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(b) Default -- if a Default or Event of Default then exists,
at the expense of the Company to visit and inspect any of the offices
or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the
Company and its Subsidiaries), all at such times and as often as may be
requested.
Prior to or concurrently with any inspection pursuant to this Section 7, the
holder, if requested by the Company, shall have entered into a confidentiality
agreement with the Company, reasonably satisfactory to it and the Company, so as
to avoid any disclosure obligation on the Company under Regulation FD under the
Exchange Act.
8. PREPAYMENT OF THE NOTES.
8.1. REQUIRED PREPAYMENTS.
(a) Required Prepayments. On each of July 15, 2005 and July
15, 2006, the Co-Obligors will prepay $25,000,000 principal amount (or
such lesser principal amount as shall then be outstanding) of the Notes
at par and without payment of the Make-Whole Amount or any premium,
provided that upon any partial prepayment of the Notes pursuant to
Section 8.2 or purchase of the Notes permitted by Section 8.5 the
principal amount of each required prepayment of the Notes becoming due
under this Section 8.1 on and after the date of such prepayment or
purchase shall be reduced in the same proportion as the aggregate
unpaid principal amount of the Notes is reduced as a result of such
prepayment or purchase.
(b) Change of Control Prepayments. Upon the occurrence of a
Change of Control Event, the Co-Obligors, upon notice as provided
below, shall offer to prepay the entire principal amount of the Notes
at 100% of the principal amount thereof, plus accrued interest. The
Company shall give notice of any offer to prepay the Notes to each
holder of the Notes promptly, but in no event later than 5 Business
Days, after any Responsible Officer has actual knowledge of a Change of
Control Event. Such notice shall specify (i) the nature of the Change
of Control Event in reasonable detail, (ii) the date fixed for
prepayment, which, to the extent practicable, shall be not less than 30
or more than 60 calendar days after the date of such notice, but in any
event shall not be later than the Effective Date of the Change of
Control if it has not occurred or 15 Business Days thereafter if it has
occurred, (iii) the estimated Effective Date of the Change of Control
if it has not occurred, (iv) the interest to be paid on the prepayment
date with respect to such principal amount being prepaid and (v) the
date by which any holder of a Note that wishes to accept such offer
must deliver notice thereof to the Company, which shall not be later
than 30 calendar days after the date of such notice. Failure by a
holder of Notes to respond to an offer made pursuant to this Section
8.1(b) shall be deemed to constitute rejection of such offer by such
holder.
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The obligation of the Co-Obligors to prepay Notes pursuant to the
offers required by, and accepted in accordance with, this Section
8.1(b) is subject to the effectiveness of the Change of Control Event
in respect of which such offers and acceptances shall have been made.
In the event that the Effective Date of the Change of Control does not
occur on the proposed prepayment date in respect thereof, the
prepayment shall be deferred until and shall be made on the Effective
Date of the Change of Control. The Company shall keep each holder of
Notes reasonably and timely informed of (i) any such deferral of the
date of prepayment, (ii) the expected Effective Date of the Change of
Control and (iii) any determination by the Company that efforts to
consummate the change of control constituting the Change of Control
Event have ceased or been abandoned (in which case the offers and
acceptances made pursuant to this Section 8.1(b) shall be deemed
rescinded).
8.2. OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT.
The Co-Obligors may, at their option, upon notice as provided
below, prepay at any time all, or from time to time any part of, the Notes in an
amount not less than $2,000,000 in the aggregate in the case of a partial
prepayment, at 100% of the principal amount so prepaid, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall specify
such date, the aggregate principal amount of the Notes to be prepaid on such
date, the principal amount of each Note held by such holder to be prepaid
(determined in accordance with Section 8.3), and the interest to be paid on the
prepayment date with respect to such principal amount being prepaid, and shall
be accompanied by a certificate of a Senior Financial Officer as to the
estimated Make-Whole Amount due in connection with such prepayment (calculated
as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment, the
Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
8.3. ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of the Notes pursuant
to Section 8.2, the principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts thereof not
theretofore called for prepayment.
8.4. MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such prepayment, together with
interest on such principal amount accrued to such date and the applicable
Make-Whole Amount, if any. From and after such date, unless the Co-Obligors
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shall fail to pay such principal amount when so due and payable, together with
the interest and Make-Whole Amount, if any, as aforesaid, interest on such
principal amount shall cease to accrue. Any Note paid or prepaid in full shall
be surrendered to the Co-Obligors and canceled and shall not be reissued, and no
Note shall be issued in lieu of any prepaid principal amount of any Note.
8.5. PURCHASE OF NOTES.
The Company and the Co-Obligors will not, and will not permit
any Affiliate to, purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement and the Notes. The
Co-Obligors will promptly cancel all Notes acquired by them or any Affiliate
pursuant to any payment, prepayment or purchase of Notes pursuant to any
provision of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
8.6. MAKE-WHOLE AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note,
an amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal, provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole Amount,
the following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as the "PX1 Screen" on the
Bloomberg Financial Market Service (or such other display as may
replace the PX1 Screen on Bloomberg Financial Market Service) for
actively traded U.S. Treasury securities having a maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement
Date, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called
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Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied
yield will be determined, if necessary, by (a) converting U.S. Treasury
bill quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the maturity closest to and
greater than the Remaining Average Life and (2) the actively traded
U.S. Treasury security with the maturity closest to and less than the
Remaining Average Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
Each of the Company and the Co-Obligors covenants that so
long as any of the Notes are outstanding:
9.1. COMPLIANCE WITH LAW.
The Company and the Co-Obligors will, and will cause each
Subsidiary to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including Environmental Laws, and
will obtain and maintain in effect all licenses, certificates, permits,
franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in
each case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses,
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certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.2. INSURANCE.
The Company and the Co-Obligors will, and will cause each
Subsidiary to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
9.3. MAINTENANCE OF PROPERTIES.
The Company and the Co-Obligors will, and will cause each
Subsidiary to, maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition (other than
ordinary wear and tear), so that the business carried on in connection therewith
may be properly conducted at all times, provided that this Section 9.3 shall not
prevent the Company, any Co-Obligor or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance is
desirable in the conduct of its business and the Company has concluded that such
discontinuance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
9.4. PAYMENT OF TAXES AND CLAIMS.
The Company and the Co-Obligors will, and will cause each
Subsidiary to, file all tax returns required to be filed in any jurisdiction and
to pay and discharge all taxes shown to be due and payable on such returns and
all other taxes, assessments, governmental charges, or levies imposed on them or
any of their properties, assets, income or franchises, to the extent such taxes
and assessments have become due and payable and before they have become
delinquent and all claims for which sums have become due and payable that have
or might become a Lien on properties or assets of the Company, any Co-Obligor or
any Subsidiary, provided that none of the Company, the Co-Obligors or any
Subsidiary, need pay any such tax or assessment or claims if (i) the amount,
applicability or validity thereof is contested by the Company, such Co-Obligor
or such Subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Company, such Co-Obligor or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company,
such Co-Obligor or such Subsidiary, or (ii) the nonpayment of all such taxes and
assessments in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
9.5. CORPORATE EXISTENCE, ETC.
Except as permitted by Section 10.9, the Company and each
Co-Obligor will at all times preserve and keep in full force and effect its
corporate existence. Except as permitted by Sections 10.8 and 10.9, the Company
and the Co-Obligors will at all times preserve and keep in full force and effect
the corporate existence of each Subsidiary (unless merged into the Company
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or another Subsidiary) and all rights and franchises of the Company, the
Co-Obligors and the Subsidiaries, unless, in the good faith judgment of the
Company, the termination of or failure to preserve and keep in full force and
effect such corporate existence, right or franchise could not, individually or
in the aggregate, have a Material Adverse Effect.
10. NEGATIVE COVENANTS.
Each of the Company and the Co-Obligors covenants that so
long as any of the Notes are outstanding:
10.1. CONSOLIDATED NET WORTH.
The Company and the Co-Obligors will not permit Consolidated
Net Worth at any time to be less than (i) $160,000,000 plus (ii) the cumulative
sum of 50% of Consolidated Net Income (but only if a positive number) for each
fiscal quarter ending after June 30, 2001.
10.2. INDEBTEDNESS.
The Company and the Co-Obligors will not, and will not permit
any Subsidiary to, incur additional Indebtedness, if after giving effect thereto
and to the application of proceeds thereof, the ratio of Consolidated Total Debt
to Consolidated Operating Cash Flow (for the Company's then most recently
completed four fiscal quarters) would be greater than 3.0 to 1.0. If, during the
period for which Consolidated Operating Cash Flow is being calculated, the
Company or any Subsidiary has acquired any Person (or the assets thereof)
resulting in such Person becoming or otherwise resulting in a Subsidiary,
compliance with this Section 10.2 shall be determined by calculating
Consolidated Operating Cash Flow on a pro forma basis as if such Subsidiary had
become such on the first day of such period.
10.3. FIXED CHARGE RATIO
The Company and the Co-Obligors will not permit the ratio
(calculated as of the end of each fiscal quarter) of Consolidated Income
Available for Fixed Charges to Consolidated Fixed Charges for the period of four
quarters ending as of the last day of each fiscal quarter to be less than 1.75
to 1.00. If, during the period for which Consolidated Income Available for Fixed
Charges and Consolidated Fixed Charges are being calculated, the Company or any
Subsidiary has acquired any Person (or the assets thereof) resulting in such
Person becoming or otherwise resulting in a Subsidiary, compliance with this
Section 10.3 shall be determined by calculating Consolidated Income Available
for Fixed Charges and Consolidated Fixed Charges on a pro forma basis as if such
Subsidiary had become such on the first day of such period and any Indebtedness
incurred in connection therewith was incurred on such date.
10.4. PERMITTED INVESTMENTS.
The Company and the Co-Obligors will not make or have, and
will not permit any Subsidiary to make or have, any Investments other than:
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(a) Investments in property to be used or consumed in the
ordinary course of business;
(b) Current assets (as determined in accordance with GAAP)
arising from the sale of goods and services in the ordinary course of
business;
(c) Investments in Subsidiaries or in a Person that, as a
result thereof, becomes a Subsidiary;
(d) Investments not otherwise permitted by this Section 10.4
existing as of the date of Closing that are listed in the attached
Schedule 10.4;
(e) Investments in:
(i) certificates of deposit or banker's acceptances
maturing within one year from the date of acquisition
issued by commercial banks organized in the United States
or Canada whose capital and surplus exceeds $100,000,000
and whose long-term debt is rated at least "A2" by
Moody's or at least "A" by S&P;
(ii) commercial paper maturing within 270 days from the
date of issuance and rated at least "A1" by Moody's or
"P1" by S&P;
(iii) obligations of or fully guaranteed by the United
States of America or an agency thereof maturing within
one year from the date of acquisition;
(iv) investments in repurchase agreements fully
collateralized with obligations of the type described in
clause (iii) with a bank satisfying the requirements of
clause (i);
(v) state or municipal securities maturing within one
year from the date of acquisition that are rated "AA" or
better by S&P or "Aa2" or better by Moody's or that have
received an equivalent rating by another rating agency of
recognized national standing; and
(f) Investments not included in paragraphs (a) through (e) of
this Section 10.4, provided that the aggregate amount of such
Investments does not exceed 15% of Consolidated Net Worth at any time.
As of any date of determination, each Investment shall be valued at the greater
of:
(x) the amount at which such Investment is shown on the books
of the Company or any of its Subsidiaries (or zero if such Investment
is not shown on any such books); and
(y) either
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(i) in the case of any Guaranty of the obligation of any
Person, the amount which the Company or any of its
Subsidiaries has paid on account of such obligation less any
recoupment by the Company or such Subsidiary of any such
payments, or
(ii) in the case of any other Investment, the excess of
(x) the greater of (A) the amount originally entered on the
books of the Company or any of its Subsidiaries with respect
thereto and (B) the cost thereof to the Company or its
Subsidiary over (y) any return of capital (after income taxes
applicable thereto) upon such Investment through the sale or
other liquidation thereof or part thereof or otherwise.
10.5. PRIORITY DEBT.
The Company and the Co-Obligors will not at any time permit
Priority Debt to exceed 20% of Consolidated Net Worth as of the then most
recently completed fiscal quarter.
10.6. INDEBTEDNESS OF SUBSIDIARIES.
The Company and Co-Obligors will not at any time permit any
Subsidiary (other than a Co-Obligor), directly or indirectly, to create, incur,
assume, guarantee, have outstanding, or otherwise become or remain directly or
indirectly liable for, any Indebtedness other than:
(a) Indebtedness of a Subsidiary outstanding on the date of
Closing and listed on Schedule 5.15 and any extension, renewal or
refunding thereof, provided that the principal amount outstanding at
the time of such extension, renewal or refunding is not increased;
(b) Indebtedness of a Subsidiary owed to the Company or
another Wholly Owned Subsidiary;
(c) Guaranties by a Subsidiary of Indebtedness of another
Subsidiary or of the Company;
(d) Indebtedness under the Credit Agreement of a Subsidiary
Guarantor that becomes a borrower under the Credit Agreement after the
Closing Date;
(e) Indebtedness evidenced by loans from Lealand Finance
Company B.V. to any Subsidiary that is not a Subsidiary Guarantor not
exceeding $20,000,000 in aggregate principal amount outstanding at any
time; and
(f) Indebtedness of a Subsidiary not otherwise permitted by
the preceding clauses (a) through (e), provided that immediately before
and after giving effect to the incurrence thereof and to the
application of the proceeds thereof,
(i) no Default or Event of Default exists, and
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(ii) the aggregate amount of all Indebtedness incurred
pursuant to this Section 10.6(f) does not exceed 20% of
Consolidated Net Worth.
10.7. LIENS.
The Company and the Co-Obligors will not, and will not permit
any Subsidiary to, permit to exist, create, assume or incur, directly or
indirectly, any Lien on its properties or assets, whether now owned or hereafter
acquired, except:
(a) Liens for taxes, assessments or governmental charges not
then due and delinquent or the nonpayment of which is permitted by
Section 9.4;
(b) any attachment or judgment Lien, unless the judgment it
secures has not, within 60 days after the entry thereof, been
discharged or execution thereof stayed pending appeal, or has not been
discharged within 60 days after the expiration of any such stay;
(c) Liens incidental to the normal conduct of business of the
Company or any Subsidiary or the ownership of its property that are not
incurred in connection with the incurrence of Indebtedness or the
borrowing of money and that do not in the aggregate materially impair
the use of such property in the operation of the business of the
Company and its Subsidiaries, taken as a whole, or the value of such
property for the purpose of such business;
(d) encumbrances in the nature of leases, subleases, zoning
restrictions, easements, rights of way and other rights and
restrictions of record on the use of real property, minor survey
exceptions and defects in title incidental to the ownership of property
or assets or to the ordinary conduct of business, which, individually
and in the aggregate, do not materially impair the use of the property
or assets subject thereto;
(e) Liens existing as of the date of Closing that are listed
in Schedule 10.7;
(f) the extension, renewal or replacement of any Lien
permitted by Section 10.7(e), provided that (i) there is no increase in
the principal amount or a shortening of maturity of the Indebtedness
secured thereby at the time of such extension, renewal or replacement,
and (ii) any new Lien attaches only to the same property theretofore
subject to such earlier Lien;
(g) Liens (i) existing on property at the time of its
acquisition or construction by the Company or a Subsidiary and not
created in contemplation thereof, whether or not the Indebtedness
secured by such Lien is assumed by the Company or a Subsidiary; or (ii)
on property created contemporaneously or within 180 days of the
acquisition or completion of construction or improvement thereof to
secure or provide for all or a portion of the purchase price or cost of
construction or improvement of such property after the date of Closing;
or (iii) existing on property of a Person at the time such Person is
merged or consolidated with, or becomes a Subsidiary of, or
substantially all of its
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assets are acquired by, the Company or a Subsidiary and not created in
contemplation thereof; provided that in the case of clauses (i), (ii)
and (iii) such Liens do not extend to additional property of the
Company or any Subsidiary (other than property that is an improvement
to or is acquired for specific use in connection with the subject
property) and the aggregate principal amount of Indebtedness secured by
each such Lien does not exceed the fair market value (determined in
good faith by one or more officers of the Company to whom authority to
enter into the transaction has been delegated by the board of directors
of the Company);
(h) Liens securing Indebtedness of a Subsidiary to the
Company or another Wholly Owned Subsidiary; and
(i) in addition to the Liens permitted by the preceding
clauses (a) through (h) of this Section 10.7, Liens securing
Indebtedness of the Company or a Subsidiary that is permitted to be
outstanding pursuant to Sections 10.2, 10.5 and 10.6, provided that the
outstanding aggregate principal amount of Indebtedness secured by such
Liens does not at any time exceed 20% of Consolidated Net Worth.
10.8. SALE OF ASSETS.
Except as permitted by Section 10.9, the Company and the
Co-Obligors will not, and will not permit any Subsidiary to, sell, lease,
transfer or otherwise dispose of, including by way of merger (collectively a
"Disposition"), any assets, including capital stock of Subsidiaries, in one or
more transactions, to any Person, other than (a) Dispositions in the ordinary
course of business, including Dispositions of obsolete equipment, (b)
Dispositions in connection with Permitted Sale and Leaseback Transactions and
(c) Dispositions not otherwise permitted by this Section 10.8, provided that the
aggregate net book value of all assets so disposed of in any fiscal year
pursuant to this Section 10.8(c) does not exceed 15% of Consolidated Total
Assets as of the end of the immediately preceding fiscal year. Notwithstanding
the foregoing, the Company and the Co-Obligors may make, or may permit any
Subsidiary to make, a Disposition and the assets subject to such Disposition
shall not be subject to or included in the foregoing limitation and computation
contained in clause (c) of the preceding sentence to the extent that the net
proceeds from such Disposition are within 365 days of such Disposition (x)
reinvested in productive assets consistent with Section 10.10 or (y) applied to
the payment or prepayment of any outstanding Indebtedness ranking pari passu
with the Notes (other than Indebtedness owing to the Company, any of its
Subsidiaries or any Affiliate or in respect of any revolving credit or similar
credit facility providing the Company or any of its Subsidiaries with the right
to obtain loans or other extensions of credit from time to time, except to the
extent that in connection with such payment of Indebtedness the availability of
credit under such credit facility is permanently reduced by an amount not less
than the amount of such proceeds applied to the payment of such Indebtedness).
10.9. MERGERS, CONSOLIDATIONS, ETC.
The Company and Co-Obligors will not, and will not permit any
Subsidiary to, consolidate with or merge with any other Person or convey,
transfer, sell or lease all or
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substantially all of its assets in a single transaction or series of
transactions to any Person except that:
(a) the Company or a Co-Obligor may consolidate or merge with
any other Person or convey, transfer, sell or lease all or
substantially all of its assets in a single transaction or series of
transactions to any Person, provided that:
(i) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by
conveyance, transfer, sale or lease of all or
substantially all of the assets of the Company or a
Co-Obligor as an entirety, as the case may be, shall be a
solvent corporation organized and existing under the laws
of the United States or any state thereof (including the
District of Columbia) or, in the case of the Company,
under the laws of the Kingdom of the Netherlands, and, if
the Company or a Co-Obligor is not such corporation, such
corporation (x) shall have executed and delivered to each
holder of any Notes its assumption of the due and
punctual performance and observance of each covenant and
condition of this Agreement and the Notes and (y) shall
have caused to be delivered to each holder of any Notes
an opinion of independent counsel reasonably satisfactory
to the Required Holders, to the effect that all
agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply
with the terms hereof; and
(ii) immediately before and after giving effect to such
transaction, no Default or Event of Default shall exist;
and
(iii) the Company or such successor, as the case may be,
could incur $1.00 of additional Indebtedness; and
(b) any Subsidiary other than a Co-Obligor may (x) merge into
the Company or a Co-Obligor (provided that the Company or such
Co-Obligor is the surviving corporation) or another Wholly Owned
Subsidiary or (y) sell, transfer or lease all or any part of its assets
to the Company or a Co-Obligor or another Wholly Owned Subsidiary, or
(z) merge or consolidate with, or sell, transfer or lease all or
substantially all of its assets to, any Person in a transaction that is
permitted by Section 10.8 or, as a result of which, such Person becomes
a Subsidiary; provided in each instance set forth in clauses (x)
through (z) that, immediately before and after giving effect thereto,
there shall exist no Default or Event of Default;
No such conveyance, transfer, sale or lease of all or substantially all of the
assets of the Company or a Co-Obligor shall have the effect of releasing the
Company or such Co-Obligor or any successor corporation that shall theretofore
have become such in the manner prescribed in this Section 10.8 from its
liability under this Agreement or the Notes.
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10.10. NATURE OF BUSINESS.
The Company and the Co-Obligors will not engage, and will not
permit any Subsidiary to engage, in any business if, as a result, the general
nature of the business in which the Company and its Subsidiaries, taken as a
whole, would then be engaged would be substantially changed from the general
nature of the business in which the Company and its Subsidiaries, taken as a
whole, are engaged on the date of this Agreement.
10.11. SUBSIDIARY GUARANTIES.
The Company and the Co-Obligors will not permit any
Subsidiary to (i) become a borrower under the Credit Agreement, (ii) become a
guarantor of Indebtedness owed to banks under the Credit Agreement or (iii)
directly or indirectly guarantee any Indebtedness or other obligations of the
Company or any Co-Obligor unless such Subsidiary is, or concurrently therewith
becomes, a party to the Subsidiary Guaranty.
10.12. ASSETS OF NON-GUARANTOR SUBSIDIARIES.
The Company and the Co-Obligors will not permit Subsidiaries
that are not Subsidiary Guarantors (other than the Co-Obligors) to account for
more than 10% of Consolidated Total Assets at any time.
10.13. TRANSACTIONS WITH AFFILIATES.
The Company and the Co-Obligors will not and will not permit
any Subsidiary to enter into directly or indirectly any Material transaction or
Material group of related transactions (including the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate (other than the Company or another Subsidiary), except in the ordinary
course and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
10.14. PARENT GUARANTY.
The Company will not incur Indebtedness under the Credit
Agreement unless it has guaranteed, or concurrently therewith guarantees, the
Notes pursuant to a written Guaranty in form and substance satisfactory to you
and the other holders of the Notes.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing:
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(a) any Co-Obligor defaults in the payment of any principal
or Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) any Co-Obligor defaults in the payment of any interest on
any Note for more than five Business Days after the same becomes due
and payable; or
(c) the Company or any Co-Obligor defaults in the performance
of or compliance with any term contained in Sections 7.1(e) or Sections
10.1 through 10.14; or
(d) the Company or any Co-Obligor defaults in the performance
of or compliance with any term contained herein (other than those
referred to in paragraphs (a), (b) and (c) of this Section 11) and such
default is not remedied within 30 days after the earlier of (i) a
Responsible Officer obtaining actual knowledge of such default and (ii)
the Company receiving written notice of such default from any holder of
a Note; or
(e) any representation or warranty made in writing by or on
behalf of the Company, any Co-Obligor or any Subsidiary Guarantor or by
any officer of any of them in this Agreement, the Subsidiary Guaranty
or in any writing furnished in connection with the transactions
contemplated hereby proves to have been false or incorrect in any
material respect on the date as of which made; or
(f) (i) the Company, any Co-Obligor or any Subsidiary
Guarantor is in default (as principal or as guarantor or other surety)
in the payment of any principal of or premium or make-whole amount or
interest on any Indebtedness that is outstanding in an aggregate
principal amount in excess of $10,000,000 beyond any period of grace
provided with respect thereto or (ii) the Company, any Co-Obligor or
any Subsidiary Guarantor is in default in the performance of or
compliance with any term of any evidence of any Indebtedness that is
outstanding in an aggregate principal amount in excess of $10,000,000
or of any mortgage, indenture or other agreement relating thereto or
any other condition exists, and as a consequence of such default or
condition such Indebtedness has become, or has been declared, due and
payable before its stated maturity or before its regularly scheduled
dates of payment, or (iii) as a consequence of the occurrence or
continuation of any event or condition (other than the passage of time,
the right of the holder of Indebtedness to convert such Indebtedness
into equity interests or the obligation of the Company or any
Subsidiary to apply proceeds from an asset sale, financing or sale and
leaseback transaction to the repayment of Indebtedness outstanding
under the Credit Agreement), the Company or any Subsidiary has become
obligated to purchase or repay Indebtedness before its scheduled
maturity or before its regularly scheduled dates of payment in an
aggregate outstanding principal amount of at least $10,000,000;
(g) the Company, any Co-Obligor or any Subsidiary Guarantor
(i) is generally not paying, or admits in writing its inability to pay,
its debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to
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take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the
Company, any Co-Obligor or any Subsidiary Guarantor, a custodian,
receiver, trustee or other officer with similar powers with respect to
it or with respect to any substantial part of its property, or
constituting an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for liquidation
or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of
the Company, any Co-Obligor or any Subsidiary Guarantor, or any such
petition shall be filed against the Company, any Co-Obligor or any
Subsidiary and such petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money
aggregating $10,000,000 are rendered against one or more of the
Company, any Co-Obligor or any Subsidiary Guarantor, which judgments
are not, within 60 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected
to be filed with the PBGC or the PBGC shall have instituted proceedings
under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or any
ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA) under
all Plans, determined in accordance with Title IV of ERISA, shall
exceed $10,000,000 (iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the Company or any ERISA
Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or
any Subsidiary establishes or amends any employee welfare benefit plan
that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder; and
any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect;
(k) any Subsidiary Guarantor defaults in the performance of
or compliance with any material term contained in the Subsidiary
Guaranty or the Subsidiary Guaranty
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ceases to be in full force and effect as a result of acts taken by the
Company, any Co-Obligor or any Subsidiary Guarantor or is declared to
be null and void in whole or in material part by a court or other
governmental or regulatory authority having jurisdiction or the
validity or enforceability thereof shall be contested by any of the
Company, any Co-Obligor or any Subsidiary Guarantor or any of them
renounces any of the same or denies that it has any or further
liability thereunder.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. ACCELERATION.
(a) If an Event of Default with respect to the Company, any
Co-Obligor or any Subsidiary Guarantor described in paragraph (g) or
(h) of Section 11 (other than an Event of Default described in clause
(i) of paragraph (g) or described in clause (vi) of paragraph (g) by
virtue of the fact that such clause encompasses clause (i) of paragraph
(g)) has occurred, all the Notes then outstanding shall automatically
become immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing, any holder or holders of more than 50% in principal amount
of the Notes at the time outstanding may at any time at its or their
option, by notice or notices to the Company and the Co-Obligors,
declare all Notes then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b)
of Section 11 has occurred and is continuing, any holder or holders of
Notes at the time outstanding affected by such Event of Default may at
any time, at its or their option, by notice or notices to the Company
and the Co-Obligors, declare all the Notes held by it or them to be
immediately due and payable.
Upon any Notes becoming due and payable under this Section
12.1, whether automatically or by declaration, such Notes will forthwith mature
and the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The Company
and the Co-Obligors acknowledge, and the parties hereto agree, that each holder
of a Note has the right to maintain its investment in the Notes free from
repayment by the Co-Obligors (except as herein specifically provided for) and
that the provision for payment of a Make-Whole Amount by the Co-Obligors in the
event that the Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of such right
under such circumstances.
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12.2. OTHER REMEDIES.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been
declared immediately due and payable under Section 12.1, the holder of any Note
at the time outstanding may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained herein or in any
Note, or for an injunction against a violation of any of the terms hereof or
thereof, or in aid of the exercise of any power granted hereby or thereby or by
law or otherwise.
12.3. RESCISSION.
At any time after any Notes have been declared due and
payable pursuant to clause (b) or (c) of Section 12.1, the holders of more than
50% in principal amount of the Notes then outstanding, by written notice to the
Company and the Co-Obligors, may rescind and annul any such declaration and its
consequences if (a) the Co-Obligors have paid all overdue interest on the Notes,
all principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17, and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
12.4. NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC.
No course of dealing and no delay on the part of any holder
of any Note in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such holder's rights, powers or remedies. No
right, power or remedy conferred by this Agreement or by any Note upon any
holder thereof shall be exclusive of any other right, power or remedy referred
to herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Company and the
Co-Obligors under Section 15, the Company and the Co-Obligors will pay to the
holder of each Note on demand such further amount as shall be sufficient to
cover all costs and expenses of such holder incurred in any enforcement or
collection under this Section 12, including, without limitation, reasonable
attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. REGISTRATION OF NOTES.
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more
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Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor, promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
13.2. TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office
of the Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), the Co-Obligors
shall execute and deliver, at the Co-Obligors' expense (except as provided
below), one or more new Notes (as requested by the holder thereof) in exchange
therefor, in an aggregate principal amount equal to the unpaid principal amount
of the surrendered Note. Each such new Note shall be payable to such Person as
such holder may request and shall be substantially in the form of Exhibit 1(a).
Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Co-Obligors
may require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $500,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $500,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representations set forth in Sections 6.1 and
6.2.
13.3. REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, an original Purchaser or another holder of a
Note that is an Institutional Investor with a minimum net worth of at
least $50,000,000, such Person's own unsecured agreement of indemnity
shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Co-Obligors at their own expense shall execute and deliver, in lieu thereof,
a new Note, dated and bearing interest from the date to which interest shall
have been paid on such lost, stolen,
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destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1. PLACE OF PAYMENT.
Subject to Section 14.2, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes shall be made
in Chicago, Illinois at the principal office of Bank One, NA in such
jurisdiction. The Co-Obligors may at any time, by notice to each holder of a
Note, change the place of payment of the Notes so long as such place of payment
shall be either the principal office of a Co-Obligor in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
14.2. HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in such Note to
the contrary, the Co-Obligors will pay all sums becoming due on such Note for
principal, Make-Whole Amount, if any, and interest by the method and at the
address specified for such purpose below your name in Schedule A, or by such
other method or at such other address as you shall have from time to time
specified to the Company and the Co-Obligors in writing for such purpose,
without the presentation or surrender of such Note or the making of any notation
thereon, except that upon written request of the Company or the Co-Obligors made
concurrently with or reasonably promptly after payment or prepayment in full of
any Note, you shall surrender such Note for cancellation, reasonably promptly
after any such request, to the Co-Obligors at the principal executive offices of
the Co-Obligors or at the place of payment most recently designated by the
Co-Obligors pursuant to Section 14.1. Prior to any sale or other disposition of
any Note held by you or your nominee you will, at your election, either endorse
thereon the amount of principal paid thereon and the last date to which interest
has been paid thereon or surrender such Note to the Co-Obligors in exchange for
a new Note or Notes pursuant to Section 13.2. The Company and the Co-Obligors
will afford the benefits of this Section 14.2 to any Institutional Investor that
is the direct or indirect transferee of any Note purchased by you under this
Agreement and that has made the same agreement relating to such Note as you have
made in this Section 14.2.
14.3. ALL PAYMENTS FREE AND CLEAR.
(a) Any and all payments made under this Agreement or the
Notes to or for the account of any holder of a Note shall be made free
and clear of, and without deduction or withholding for or on account
of, any Tax, except to the extent such deduction or withholding is
required by law. If any Tax is required by law to be deducted or
withheld from any such payments by the Company, any Co-Obligor or any
Subsidiary Guarantor, the Company, such Co-Obligor or such Subsidiary
Guarantor, as the case may be, will make such deductions or withholding
and pay to the relevant taxing authority the full amount deducted or
withheld before penalties attach thereto or interest accrues thereon.
In the event of the imposition by or for the account of any Applicable
Taxing Authority or
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of any Governmental Authority of any jurisdiction in which the
Company, any Co-Obligor or any Subsidiary Guarantor resides for tax
purposes or any jurisdiction from or through which the Company, any
Co-Obligor or any Subsidiary Guarantor is making any payment in respect
of any Note or pursuant to this Agreement, other than any Governmental
Authority of or in the United States of America or any political
subdivision thereof or therein (or of any other jurisdiction in which
the holder of a Note resides for tax purposes or receives payment in
respect of a Note or pursuant to this Agreement), of any Tax upon or
with respect to any payments in respect of any Note or pursuant to this
Agreement, whether by withholding or otherwise, the Company, such
Co-Obligor or such Subsidiary Guarantor, as the case may be, making
such payment agrees to pay forthwith from time to time in connection
with each payment on the Notes or pursuant to this Agreement to each
holder of a Note such amounts as shall be required so that every
payment received by such holder will not, after the deduction or
withholding of or other payment for or on account of such Tax and any
interest or penalties relating thereto, as well as any additional Tax
to be withheld or deducted in respect of such amounts be less than the
amount due and payable to such holder in respect of such Note or under
this Agreement before the assessment of such Tax; provided, however,
that none of the Company, any Co-Obligor or any Subsidiary Guarantor
shall be obliged to pay such amounts to any holder of a Note in respect
of Taxes to the extent such Taxes exceed the Taxes that would have been
payable:
(i) had such holder not had any connection with the
Netherlands (or other foreign domicile of a Co-Obligor or
a Subsidiary Guarantor) or any territory or political
subdivision thereof other than the mere holding of a Note
with the benefit of the Subsidiary Guaranty (or the
receipt of any payments in respect thereof) or activities
incidental thereto (including enforcement thereof); or
(ii) but for the delay or failure by such holder
(following a written request by the Company, a Co-Obligor
or a Subsidiary Guarantor) in the filing with an
appropriate Governmental Authority or otherwise of forms,
certificates, documents, applications or other reasonably
required evidence, that is required to be filed by such
holder to avoid or reduce such Taxes and that in the case
of any of the foregoing would not result in any
confidential or proprietary income tax return information
being revealed, either directly or indirectly, to any
Person (collectively, "Forms") and such delay or failure
could have been lawfully avoided by such holder, provided
that such holder shall be deemed to have satisfied the
requirements of this clause (ii) upon the good faith
completion and submission of such Forms as may be
specified in a written request of the Company, a
Co-Obligor or a Subsidiary Guarantor no later than 45
days after receipt by such holder of such written request
(which written request shall be accompanied by a copy of
such Forms and all applicable instructions and, if any
such Forms or instructions shall not be in the English
language, an English translation thereof).
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(b) Within 60 days after the date of any payment by any of
the Company, a Co-Obligor or a Subsidiary Guarantor of any Tax in
respect of any payment under the Notes or this Agreement, the Company,
a Co-obligor or a Subsidiary Guarantor, as the case may be, shall
furnish to each holder of a Note the original tax receipt for the
payment of such Tax (or if such original tax receipt is not available,
a duly certified copy of the original tax receipt), together with such
other documentary evidence with respect to such payments as may be
reasonably requested from time to time by any holder of a Note.
(c) The obligations of the Company, the Co-Obligors and the
Subsidiary Guarantors under this Section 14.3 will survive the payment
or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this
Agreement.
15. EXPENSES, ETC.
15.1. TRANSACTION EXPENSES.
Whether or not the transactions contemplated hereby are
consummated, the Company and the Co-Obligors will pay all costs and expenses
(including reasonable attorneys' fees of a special counsel and, if reasonably
required, local or other counsel) incurred by you and each Other Purchaser or
holder of a Note in connection with such transactions and in connection with any
amendments, waivers or consents under or in respect of this Agreement, the Notes
or the Subsidiary Guaranty (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce or
defend) any rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement, the Notes or the Subsidiary Guaranty or by
reason of being a holder of any Note, and (b) the costs and expenses, including
financial advisors' fees, incurred in connection with the insolvency or
bankruptcy of the Company or any Subsidiary or in connection with any work-out
or restructuring of the transactions contemplated hereby and by the Notes. The
Company and the Co-Obligors will pay, and will save you and each other holder of
a Note harmless from, all claims in respect of any fees, costs or expenses if
any, of brokers and finders (other than those retained by you).
15.2. SURVIVAL.
The obligations of the Company and the Co-Obligors under this
Section 15 will survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement or the Notes, and the
termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Notes, the purchase
or transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any
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subsequent holder of a Note (but only as of the date originally made),
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company or any Co-Obligor pursuant
to this Agreement shall be deemed representations and warranties of the Company
and the Co-Obligors under this Agreement. Subject to the preceding sentence,
this Agreement and the Notes embody the entire agreement and understanding
between you and the Company and the Co-Obligors and supersede all prior
agreements and understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER.
17.1. REQUIREMENTS.
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Company, each Co-Obligor and the Required Holders, except that (a) no amendment
or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or
any defined term (as it is used therein), will be effective as to you unless
consented to by you in writing, and (b) no such amendment or waiver may, without
the written consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of Sections 8,
11(a), 11(b), 12, 17 or 20.
17.2. SOLICITATION OF HOLDERS OF NOTES.
(a) Solicitation. The Company will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a
decision is required, to enable such holder to make an informed and
considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof or of the Notes. The
Company will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of
this Section 17 to each holder of outstanding Notes promptly following
the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b) Payment. Neither the Company nor any Co-Obligor will
directly or indirectly pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or
otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any
holder of Notes or any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid, or
security is concurrently granted, on the same terms, ratably to each
holder of Notes then outstanding even if such holder did not consent to
such waiver or amendment.
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17.3. BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon them and
upon each future holder of any Note and upon the Company and each Co-Obligor
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the
Company, the Co-Obligors and the holder of any Note nor any delay in exercising
any rights hereunder or under any Note shall operate as a waiver of any rights
of any holder of such Note. As used herein, the term "this Agreement" or "the
Agreement" and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
17.4. NOTES HELD BY COMPANY, ETC.
Solely for the purpose of determining whether the holders of
the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company or any of
its Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall
be in writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the
address specified for such communications in Schedule A,
or at such other address as you or it shall have
specified to the Company and the Co-Obligors in writing,
(ii) if to any other holder of any Note, to such holder
at such address as such other holder shall have specified
to the Company and the Co-Obligors in writing, or
(iii) if to the Company, any Co-Obligor or any Subsidiary
Guarantor at the address set forth at the beginning
hereof to Chicago Bridge & Iron Company (DELAWARE) to the
attention of the Treasurer, or at such other address as
the Company, such Co-Obligor or such Subsidiary Guarantor
shall have specified to the holder of each Note in
writing.
Notices under this Section 18 will be deemed given only when actually received.
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19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including
(a) consents, waivers and modifications that may hereafter be executed, (b)
documents received by you at the Closing (except the Notes themselves), and (c)
financial statements, certificates and other information previously or hereafter
furnished to you, may be reproduced by you by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process and you
may destroy any original document so reproduced. The Company and the Co-Obligors
agree and stipulate that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company, any Co-Obligor or any other holder of Notes from
contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on behalf of the Company
or any Subsidiary in connection with the transactions contemplated by or
otherwise pursuant to this Agreement that is proprietary in nature and that was
clearly marked or labeled or otherwise adequately identified when received by
you as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
or otherwise known to you prior to the time of such disclosure, (b) subsequently
becomes publicly known through no act or omission by you or any Person acting on
your behalf, (c) otherwise becomes known to you other than through disclosure by
the Company or any Subsidiary, or (d) constitutes financial statements delivered
to you under Section 7.1 that are otherwise publicly available. You will
maintain the confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information of
third parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, trustees, officers, employees,
agents, attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by your Notes), (ii)
your financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note or any part
thereof or any participation therein (if such Person has agreed in writing prior
to its receipt of such Confidential Information to be bound by the provisions of
this Section 20), (v) any Person from which you offer to purchase any security
of the Company or a Co-Obligor (if such Person has agreed in writing prior to
its receipt of such Confidential Information to be bound by the provisions of
this Section 20), (vi) any federal or state regulatory authority having
jurisdiction over you, (vii) the National Association of Insurance Commissioners
or any similar organization, or any nationally recognized rating agency that
requires access to information about your investment portfolio or (viii) any
other Person to which such delivery or disclosure may be
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necessary or appropriate (w) to effect compliance with any law, rule, regulation
or order applicable to you, (x) after making your best effort to give prior
notice to the Company, in response to any subpoena or other legal process, (y)
after making your best effort to give prior notice to the Company, in connection
with any litigation to which you are a party or (z) if an Event of Default has
occurred and is continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or for
the protection of the rights and remedies under your Notes and this Agreement.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have agreed to purchase
hereunder, by written notice to the Company and the Co-Obligors, which notice
shall be signed by both you and such Affiliate, shall contain such Affiliate's
agreement to be bound by this Agreement and shall contain a confirmation by such
Affiliate of the accuracy with respect to it of the representations set forth in
Section 6. Upon receipt of such notice, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall be deemed to refer to
such Affiliate in lieu of you. In the event that such Affiliate is so
substituted as a purchaser hereunder and such Affiliate thereafter transfers to
you all of the Notes then held by such Affiliate, upon receipt by the Company
and the Co-Obligors of notice of such transfer, wherever the word "you" is used
in this Agreement (other than in this Section 21), such word shall no longer be
deemed to refer to such Affiliate, but shall refer to you, and you shall have
all the rights of an original holder of the Notes under this Agreement.
22. MISCELLANEOUS.
22.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement
by or on behalf of any of the parties hereto bind and inure to the benefit of
their respective successors and assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.
22.2. PAYMENTS DUE ON NON-BUSINESS DAYS.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount or interest on
any Note that is due on a date other than a Business Day shall be made on the
next succeeding Business Day without including the additional days elapsed in
the computation of the interest payable on such next succeeding Business Day.
41
47
22.3. SEVERABILITY.
Any provision of this Agreement that 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 (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4. CONSTRUCTION.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent
such an express contrary provision) be deemed to excuse compliance with any
other covenant. Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5. COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.6. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State
of Illinois excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
22.7. SUBMISSION TO JURISDICTION.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR THE NOTES MUST BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE
UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY AND EACH CO-OBLIGOR CONSENT, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF THE COMPANY AND THE CO-OBLIGORS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE IN SUCH COURTS,
INCLUDING BUT NOT LIMITED TO ANY OBJECTION BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH COURTS IN RESPECT OF THIS AGREEMENT, THE NOTES OR ANY
DOCUMENT RELATED HERETO. EACH OF THE COMPANY AND THE CO-OBLIGORS WAIVES PERSONAL
42
48
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY ILLINOIS LAW.
TO THE EXTENT THAT THE COMPANY OR A CO-OBLIGOR 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, EACH OF THE COMPANY AND EACH CO-OBLIGOR IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE NOTES.
THE COMPANY AND EACH CO-OBLIGOR IRREVOCABLY DESIGNATES,
APPOINTS AND EMPOWERS CHICAGO BRIDGE & IRON COMPANY (DELAWARE) AND ITS
SUCCESSORS AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND
ACKNOWLEDGE, FOR AND ON ITS BEHALF, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS THAT MAY BE SERVED IN SUCH ACTION, SUIT OR
PROCEEDING IN THE CASE OF THE COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED
STATES OF AMERICA LOCATED IN THE NORTHERN DISTRICT OF ILLINOIS, WHICH SERVICE
MAY BE MADE ON ANY SUCH DESIGNEE, APPOINTEE OR AGENT OF THE COMPANY OR ANY
CO-OBLIGOR OR EACH OF THEM IN ACCORDANCE WITH LEGAL PROCEDURES PRESCRIBED FOR
SUCH COURTS.
* * * * *
43
49
If you are in agreement with the foregoing, please sign the
form of agreement on the accompanying counterpart of this Agreement and return
it to the Company, whereupon the foregoing shall become a binding agreement
among you, the Company and the Co-Obligors.
Very truly yours,
CHICAGO BRIDGE & IRON COMPANY N.V.
By: Chicago Bridge & Iron Company B.V.,
its Managing Director
By: /s/ Timothy J. Wiggins
---------------------------------------------
Name: Timothy J. Wiggins
-------------------------------------------
Title: Managing Director
------------------------------------------
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
By: /s/ Timothy J.P. Moran
---------------------------------------------
Name: Timothy J.P. Moran
-------------------------------------------
Title: Treasurer
------------------------------------------
CBI SERVICES, INC.
By: /s/ Dennis C. Planic
---------------------------------------------
Name: Dennis C. Planic
-------------------------------------------
Title: Treasurer
------------------------------------------
CB&I CONSTRUCTORS, INC.
By: /s/ Timothy J.P. Moran
---------------------------------------------
Name: Timothy J.P. Moran
-------------------------------------------
Title: Treasurer
------------------------------------------
CB&I TYLER COMPANY
By: /s/ Timothy J.P. Moran
---------------------------------------------
Name: Timothy J.P. Moran
-------------------------------------------
Title: Treasurer
------------------------------------------
S-1
50
The foregoing is hereby agreed to as of the date thereof.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Ronald A. Mendel
------------------------------------
Name: Ronald A. Mendel
-----------------------------------
By: /s/ Patricia W. Wilson
------------------------------------
Name: Patricia W. Wilson
-----------------------------------
Authorized Signatories
S-2
51
TRANSAMERICA LIFE INSURANCE COMPANY
By: /s/ Bill Henricksen
------------------------------------
Name: Bill Henricksen
----------------------------------
Title: Vice President
---------------------------------
S-3
52
TRANSAMERICA OCCIDENTAL LIFE
INSURANCE COMPANY
By: /s/ Bill Henricksen
------------------------------------
Name: Bill Henricksen
----------------------------------
Title: Vice President
---------------------------------
S-4
53
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By: /s/ Mark W. Poeppelman
------------------------------------
Name: Mark W. Poeppelman
----------------------------------
Title: Associate Vice President
---------------------------------
S-5
54
NATIONWIDE LIFE INSURANCE
COMPANY
By: /s/ Mark W. Poeppelman
------------------------------------
Name: Mark W. Poeppelman
----------------------------------
Title: Associate Vice President
---------------------------------
S-6
55
PHOENIX LIFE INSURANCE COMPANY
By: /s/ Christopher M. Wilkos
------------------------------------
Name: Christopher M. Wilkos
----------------------------------
Title: Senior Vice President--
---------------------------------
Corporate Portfolio Management
---------------------------------
S-7
56
LUTHERAN BROTHERHOOD
By: /s/ Keri L. Reich
------------------------------------
Name: Keri L. Reich
----------------------------------
Title: Portfolio Manager
---------------------------------
S-8
57
AMERICAN UNITED LIFE INSURANCE COMPANY
By: /s/ G. David Sapp
---------------------------------------
Name: G. David Sapp
-------------------------------------
Title: Senior Vice President Investments
------------------------------------
S-9
58
MODERN WOODMEN OF AMERICA
By: /s/ Clyde C. Schoeck
------------------------------------
Name: Clyde C. Schoeck
----------------------------------
Title: President
---------------------------------
S-10
59
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
Name of Purchaser NOTES TO BE PURCHASED
------------------- ---------------------------------------
ALLSTATE LIFE INSURANCE COMPANY $3,000,000
$3,000,000
$6,000,000
$6,000,000
$5,000,000
Nominee name in which Notes are to be registered: Allstate Life Insurance Company
(1) All payments by Fedwire transfer of immediately available funds,
identifying the name of the Issuer, the Private Placement Number
preceded by "DPP" and the payment as principal, interest or premium in
the format as follows:
BBK= Harris Trust and Savings Bank
ABA #071000288
BNF= Allstate Life Insurance Company
Collection Account #168-117-0
ORG= Chicago Bridge & Iron
OBI= DPP - 16725# AA 4
Payment Due Date (MM/DD/YY) - P (Enter "P"
and amount of principal being remitted, for example,
P5000000.00) - I (Enter "I" and amount of
interest being remitted, for example I225000.00)
(2) All notices of scheduled payments and written confirmations of such
wire transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
(3) Securities to be delivered to:
Citibank, Federal Savings Bank
U.S. Custody & Employee Benefit Trust
500 W. Madison Street, Floor 6, Zone 4
Chicago, Illinois 60661-2591
Attention: Pam Jost
For Allstate Life Insurance Company/ Safekeeping Account
No. 846627
Schedule A
60
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G5D
Northbrook, Illinois 60062-7127
Telephone: (847) 402-8922
Telecopy: (847) 402-3092
Tax I.D. #: 36-2554642
2
Schedule A
61
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
Name of Purchaser NOTES TO BE PURCHASED
------------------- ---------------------------------------
TRANSAMERICA LIFE INSURANCE COMPANY $8,000,000
Nominee name in which Notes are to be registered: Transamerica Life Insurance
Company
(1) Payments:
All payments on account of the Transamerica Life Insurance Company,
shall be made by wire transfer of immediately available funds to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA #021000089
DDA #36218394
Custody Account No. 847659
FC Transamerica Life Insurance Company
ADDITIONAL REQUIRED INFORMATION: Identify source and application of
funds. Include the following: Security/Issuer Description, CUSIP (if
available), principal and interest.
(2) Payment Advice and Original Note:
All notice of and confirmation of payment information and the ORIGINAL
note should be sent to the following address stating that the
certificate is registered in the name of Transamerica Life Insurance
Company.
AEGON USA Investment Management, Inc.
Attn: Angie Naslund
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5113
FAX #: (319) 896-6843
3
Schedule A
62
(3) Other Communication:
All other communications including financial statement and reporting
should be directed to both:
AEGON USA Investment Management, Inc.
Attn: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
FAX #: 319/369-2666
and
AEGON USA Investment Management, Inc.
Attn: Lizz Taylor--Private Placements
400 West Market Street
Louisville, KY 40202
FAX#: 502/560-2030
Tax I.D.#: 39-0989781
4
Schedule A
63
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
Name of Purchaser NOTES TO BE PURCHASED
------------------- ---------------------------------------
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY $8,000,000
Nominee name in which Notes are to be registered: Transamerica Occidental Life
Insurance Company
(1) Payments:
All payments on account of the TRANSAMERICA OCCIDENTAL LIFE INSURANCE
COMPANY shall be made by wire transfer of immediately available funds
to:
Boston Safe Deposit Trust
ABA# - 011001234
Credit DDA Account #125261
Attn: MBS Income, cc1253
Custody account # TRAF1505252
FC TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY.
ADDITIONAL REQUIRED INFORMATION: Identify source and application of
funds. Include the following: Security/Issuer Description, CUSIP (if
available), principal and interest.
(2) Payment Advice and Original Note:
All notice of and confirmation of payment information and The ORIGINAL
note should be sent to the following address stating that the
certificate is registered in the name of Transamerica Occidental Life
Insurance Company.
AEGON USA Investment Management, Inc.
Attn: Angie Naslund
4333 Edgewood Road NE
Cedar Rapids, IA 52499-5113
Fax #: (319) 896-6843
(3) Other Communication:
All other communications including financial statement and reporting
should be directed to both:
5
Schedule A
64
AEGON USA Investment Management, Inc.
Attn: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
FAX #: 319/369-2666
and
AEGON USA Investment Management, Inc.
Attn: Lizz Taylor--Private Placements
400 West Market Street
Louisville, KY 40202
FAX#: 502/560-2030
Tax I.D.#: 95-1060502
6
Schedule A
65
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
Name of Purchaser NOTES TO BE PURCHASED
-------------------- ---------------------------------------
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY $4,000,000
Nominee name in which Notes are to be registered: Nationwide Life and Annuity Insurance
Company
(1) Send notices and communications to:
Nationwide Life and Annuity Insurance Company
One Nationwide Plaza (1-33-05)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
(2) Wiring instructions:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life and Annuity Insurance Company
Attn: P & I Department
PPN# _________________
Security Description ____________________________
(3) Check instructions:
Nationwide Life and Annuity Insurance Company
c/o The Bank of New York
Attn: P & I Department
P O Box 19266
Newark, NJ 07195
(Checks should be made payable to:
Nationwide Life and Annuity Insurance Company
and identified as to issuer, security, principal and interest)
(4) All notices of payment on or in respect to the security should be
sent to:
7
Schedule A
66
Nationwide Life and Annuity Insurance Company
c/o The Bank of New York
P O Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Life and Annuity Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
(5) The original note should be registered in the name of Nationwide Life
and Annuity Insurance Company and delivered to:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Life and Annuity Insurance Co. Acct #267961
Tax I.D.#: 31-1000740
8
Schedule A
67
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
------------------- ---------------------------------------
NATIONWIDE LIFE INSURANCE COMPANY $9,000,000
Nominee name in which Notes are to be registered: Nationwide Life Insurance Company
(1) Send notices and communications to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-05)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
(2) Wiring instructions:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P & I Department
PPN# 16725# AA 4
Security Description ____________________________
(3) Check instructions:
Nationwide Life Insurance Company
c/o The Bank of New York
Attn: P & I Department
P O Box 19266
Newark, NJ 07195
(Checks should be made payable to:
Nationwide Life Insurance Company,
and identified as to issuer, security, principal and interest)
(4) All notices of payment on or in respect to the security should be
sent to:
Nationwide Life Insurance Company
9
Schedule A
68
c/o The Bank of New York
P O Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
(5) The original note should be registered in the name of
Nationwide Life Insurance Company and delivered to:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Life Insurance Co. Acct #267829
Tax I.D.#: 31-4156830
10
Schedule A
69
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
------------------- ---------------------------------------
PHOENIX LIFE INSURANCE COMPANY $5,000,000
$5,000,000
Nominee name in which Notes are to be registered: Phoenix Life Insurance Company
(1) For Principal and Interest Payments:
Pay to:
ABA 021 000 021
Bank: Chase Manhattan Bank, N.A.
City, State: New York, NY
Acct. No. 900 9000 200
Acct. Name: Income Processing
Reference for G05689, Phoenix Home, PPN = (Pvt. Plcmt. #), OBI
Note R-10: = (issuer name), Rate = (coupon), Due = (mat. date)
INCLUDE Company name, principal and
interest breakdown and premium, if
any.
Reference for G05520, Phoenix Home, PPN = (Pvt. Plcmt. #), OBI
Note R-11: = (issuer name), Rate = (coupon), Due = (mat. date)
INCLUDE Company name, principal and
interest breakdown and premium, if
any.
(2) All notices and communications with respect to payments shall be made
to:
Phoenix Life Insurance Company
c/o Phoenix Investment Partners, Ltd.
56 Prospect Street
P.O. Box 150480
Hartford, Connecticut 06115-0480
Attention: Private Placements Division
Telecopier Number: (860) 403-7248
11
Schedule A
70
(3) All other communications shall be made to:
Phoenix Life Insurance Company
c/o Phoenix Investment Partners, Ltd.
56 Prospect Street
P.O. Box 150480
Hartford, Connecticut 06115-0480
Attention: Private Placements Division
Telecopier Number: (860) 403-7248
Tax I.D.#: 06-0493340
12
Schedule A
71
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
Name of Purchaser NOTES TO BE PURCHASED
-------------------- ---------------------------------------
LUTHERAN BROTHERHOOD $5,000,000
Nominee name in which Notes are to be registered: Lutheran Brotherhood
(1) Payments to:
By Wire:
Wells Fargo Bank Minnesota, N.A.
ABA #091000019
For Credit to Trust Clearing Account # 0000840245
Attn: Carrie Archibald
For Credit to: Lutheran Brotherhood
Acct. No.: 12651300
By Mail:
Lutheran Brotherhood
Wells Fargo Bank Minnesota, N.A.
MAC N 9306-055
Investor's Building, 5th Floor
733 Marquette Ave.
Minneapolis, MN 55485
All payments must include the following information:
A/C Lutheran Brotherhood
Account No.: 12651300
Security Description
Private Placement Number
Reference Purpose of Payment
Interest and/or Principal Breakdown
(2) Notices of payments and written confirmation of such wire transfers to:
Lutheran Brotherhood
Attn: Investment Accounting/Trading Administrator
625 Fourth Avenue South
10th Floor
Minneapolis, MN 55415
13
Schedule A
72
(3) All other communications to:
Lutheran Brotherhood
Attn: Investment Division
625 Fourth Avenue South
Minneapolis, MN 55415
Telecopier: (612) 340-5776
(4) Private Placement Notes sent to:
Wells Fargo Bank Minnesota, N.A.
733 Marquette Avenue
Attn: Client Services - Carrie Archibald
MAC N 9306-055
Investor's Building, 5th Floor
Minneapolis, MN 55479-0051
Telecopier: (612) 667-0550
With a copy to the Lutheran Brotherhood in-house attorney
Tax I.D.#: 41-0385700
14
Schedule A
73
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
-------------------- ---------------------------------------
AMERICAN UNITED LIFE INSURANCE COMPANY $4,000,000
Name in which Notes are to be registered: American United Life Insurance Company
(1) The Company shall make payment of principal and interest on the bond in
immediately available funds by wire transfer to the following bank
account:
PURCHASER ACCOUNT
AMERICAN UNITED LIFE Bank of New York
INSURANCE COMPANY Attn: P & I Department
One Wall Street, 3rd Floor
Window A
New York, NY 10286
ABA #021000018, BNF: IOC566
Payments should contain sufficient information to identify the
breakdown of principal and interest and should identify the full
description of the bond and bond payment date.
(2) The original bonds should be sent to the following:
Bank of New York
ATTN: Kurien Koshy, free receive
One Wall Street, 3rd Floor
Window A
American United Life
New York, NY 10286
Tax I.D.#: 35-0145825
15
Schedule A
74
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
Name of Purchaser NOTES TO BE PURCHASED
-------------------- ---------------------------------------
MODERN WOODMEN OF AMERICA $4,000,000
Name in which Notes are to be registered: Modern Woodmen of America
(1) All payments on account of Notes held by such purchaser shall be made
by wire transfer of immediately available funds for credit to:
The Northern Trust Company
50 South LaSalle Street
Chicago, IL
60675 ABA No. 071-000-152
Account Name: Modern Woodmen of America
Account No. 84352
Each such wire transfer shall set forth the name of the Company, the
full title (including the applicable coupon rate and final maturity
date) of the Notes, a reference to PPN No. and the
due date and application (as among principal, premium and interest)
of the payment being made.
(2) Address for all notices relating to payments:
Modern Woodmen of America
Attn: Investment Accounting Department
1701 First Avenue
Rock Island, IL 61201
(3) Address for all other communications and notices:
Modern Woodmen of America
Attn: Investment Department
1701 First Avenue
Rock Island, IL 61201
Tax I.D.#: 36-1493430
16
Schedule A
75
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof following such term:
"AFFILIATE" means, at any time, and with respect to any
Person, (a) any other Person that at such time directly or indirectly through
one or more intermediaries Controls, or is Controlled by, or is under common
Control with, such first Person, and (b) any Person beneficially owning or
holding, directly or indirectly, 10% or more of any class of voting or equity
interests of the Company or any Subsidiary or any corporation of which the
Company and its Subsidiaries beneficially own or hold, in the aggregate,
directly or indirectly, 10% or more of any class of voting or equity interests.
As used in this definition, "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 securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
"APPLICABLE TAXING AUTHORITY" is defined in Section 5.9.
"BUSINESS DAY" means (a) for the purposes of Section 8.6
only, any day other than a Saturday, a Sunday or a day on which commercial banks
in New York City are required or authorized to be closed, and (b) for the
purposes of any other provision of this Agreement, any day other than a
Saturday, a Sunday or a day on which commercial banks in Chicago, Illinois or
New York City are required or authorized to be closed.
"CAPITAL LEASE" means, at any time, a lease with respect to
which the lessee is required concurrently to recognize the acquisition of an
asset and the incurrence of a liability in accordance with GAAP.
"CHANGE OF CONTROL EVENT" means, the (i) acquisition through
purchase or otherwise by any Person, or group of Persons acting in concert
(other than the Significant Shareholders), directly or indirectly, in one or
more transactions, of beneficial ownership or control of securities representing
more than 50% of the combined voting power of the Company's Voting Stock
(including the agreement to act in concert by Persons, other than the
Significant Shareholders, who beneficially own or control securities
representing more than 50% of the combined voting power of the Company's Voting
Stock), or (ii) entering into by the Company of a written agreement providing
for or contemplating an acquisition described in clause (i) hereof. The date on
which the acquisition described in clause (i) of the first sentence occurs is
referred to as the "EFFECTIVE DATE OF THE CHANGE OF CONTROL."
"CLOSING" is defined in Section 3.
"CO-OBLIGOR" and "CO-OBLIGORS" are defined in Section 1.
Schedule B
76
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated thereunder from
time to time.
"COMPANY" means Chicago Bridge & Iron Company N.V., a company
organized under the laws of the Kingdom of the Netherlands having its corporate
seat in Amsterdam.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
of (i) Consolidated Long-Term Lease Rentals for such period and (ii)
consolidated interest expense of the Company and its Subsidiaries (including
capitalized interest and the interest component of Capital Leases) for such
period.
"CONSOLIDATED INCOME AVAILABLE FOR FIXED CHARGES" means, for
any period, Consolidated Net Income for such period, plus, to the extent
deducted in determining such Consolidated Net Income (i) provisions for income
taxes; (ii) Consolidated Fixed Charges and (iii) nonrecurring special charges of
(v) $473,000 taken by the Company in the fiscal quarter ended September 30,
2000, (w) $53,673,000 taken by the Company in the fiscal quarter ended December
31, 2000, (x) $772,000 taken by the Company in the fiscal quarter ended March
31, 2001, (y) not more than $3,273,000 in the aggregate, related to recent
acquisitions, to be taken by the Company in the three fiscal quarters ending
June 30, September 30 and December 31, 2001, and (z) not more than $10,000,000
in the aggregate, related to the realignment of the Company's High Purity Piping
& Technology business, to be taken by the Company in the two fiscal quarters
ending June 30 and September 30, 2001.
"CONSOLIDATED LONG-TERM LEASE RENTALS" means, for any period,
the sum of the minimum amount of rental and other obligations of the Company and
its Subsidiaries required to be paid during such period under all leases of real
or personal property (other than Capital Leases) having a term (including any
required renewals or extensions or any renewals or extensions at the option of
the lessor or lessee) of one year or more after the commencement of the initial
term, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or deficit) of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, but excluding in any
event (a) any extraordinary gain or loss (net of any tax effect) and (b) net
earnings of any Person (other than a Subsidiary) in which the Company or any
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.
"CONSOLIDATED NET WORTH" means, as of any date, consolidated
stockholders' equity of the Company and its Subsidiaries on such date,
determined in accordance with GAAP.
"CONSOLIDATED OPERATING CASH FLOW" means, for any period,
Consolidated Net Income for such period, plus, to the extent deducted in
determining Consolidated Net Income,
2
Schedule B
77
(i) provisions for federal, state and local income taxes, (ii) interest expense
(including the interest component of Capital Leases), (iii) depreciation and
amortization expense and (iv) nonrecurring special charges of (v) $473,000 taken
by the Company in the fiscal quarter ended September 30, 2000, (w) $53,673,000
taken by the Company in the fiscal quarter ended December 31, 2000, (x) $772,000
taken by the Company in the fiscal quarter ended March 31, 2001, (y) not more
than $3,273,000 in the aggregate, related to recent acquisitions, to be taken by
the Company in the three fiscal quarters ending June 30, September 30 and
December 31, 2001, and (z) not more than $10,000,000 in the aggregate, related
to the realignment of the Company's High Purity Piping & Technology business, to
be taken by the Company in the two fiscal quarters ending June 30 and September
30, 2001.
"CONSOLIDATED TOTAL ASSETS" means, as of any date, the assets
and properties of the Company and its Subsidiaries as of such date, determined
on a consolidated basis in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" means, as of any date, the
Indebtedness of the Company and its Subsidiaries on such date, determined on a
consolidated basis in accordance with GAAP.
"CREDIT AGREEMENT" means the Credit Agreement dated as of
December 1, 2000, among the Company, the Subsidiaries party thereto, the
financial institutions party thereto, Bank One, NA, as Administrative Agent,
Bank of America, N.A., as Syndication Agent, and Harris Trust and Savings Bank
as Documentation Agent, as such agreement has heretofore been amended and may be
amended, modified, supplemented, refinanced or replaced from time to time.
"DEFAULT" means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of notice or
both, become an Event of Default.
"DEFAULT RATE" means that rate of interest that is the
greater of (i) 2% per annum above the rate of interest stated in clause (a) of
the first paragraph of the Notes or (ii) 2% over the rate of interest publicly
announced by Bank One, NA in Chicago, Illinois as its "base" or "prime" rate.
"DISPOSITION" is defined in Section 10.8.
"ENVIRONMENTAL LAWS" means any and all federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
3
Schedule B
78
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"EVENT OF DEFAULT" is defined in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FORM 10-K" means the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 2000 as filed with the Securities and
Exchange Commission.
"FORM 10-Q" means the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 2001 as filed with the Securities and
Exchange Commission.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America.
"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any state or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or
any Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to,
any such government.
"GUARANTY" means, with respect to any Person, any obligation
(except the endorsement 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
in any manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such indebtedness or obligation or any
property constituting security therefor;
4
Schedule B
79
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such indebtedness or
obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or
hazardous wastes or any other substances that might pose a hazard to health or
safety, the removal of which may be required or the generation, manufacture,
refining, production, processing, treatment, storage, handling, transportation,
transfer, use, disposal, release, discharge, spillage, seepage, or filtration of
which is or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polycholorinated biphenyls).
"HOLDER" means, with respect to any Note, the Person in whose
name such Note is registered in the register maintained by the Company pursuant
to Section 13.1.
"INDEBTEDNESS" with respect to any Person means, at any time,
without duplication,
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable preferred stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding (i) earnouts or other forms
of contingent purchase prices and (ii) accounts payable arising in the
ordinary course of business, but including all liabilities created or
arising under any conditional sale or other title retention agreement
with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities);
5
Schedule B
80
(e) all its liabilities in respect of letters of credit
issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed
money) other than liabilities in respect of (i) undrawn amounts under
Performance Letters of Credit and (ii) undrawn amounts under letters of
credit issued in the ordinary course of business to secure obligations
of the Company and its Subsidiaries under workers' compensation and
other social security programs;
(f) any Guaranty of such Person with respect to liabilities
of a type described in any of clauses (a) through (e) hereof.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (f) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP. Indebtedness shall not include the
Company's obligation to Praxair under the Employee Benefits Disaffiliation
Agreement dated January 1, 1997 between the Company and Praxair.
"INSTITUTIONAL INVESTOR" means (a) any original purchaser of
a Note and (b) any bank, trust company, savings and loan association or other
financial institution, any pension plan, any investment company, any insurance
company, any broker or dealer, or any other similar financial institution or
entity, regardless of legal form.
"INVESTMENTS" means all investments made, in cash or by
delivery of property, directly or indirectly, in any Person, whether by
acquisition of shares of capital stock, indebtedness or other obligations or
securities or by loan, Guaranty, advance, capital contribution or otherwise.
"LIEN" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"MAKE-WHOLE AMOUNT" is defined in Section 8.6.
"MATERIAL" means material in relation to the business,
operations, financial condition, assets, properties, or prospects of the Company
and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, operations, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of any of the
Company or the Co-Obligors to perform its obligations under this Agreement and
the Notes, or (c) the ability of any Subsidiary Guarantor to perform its
obligations under the Subsidiary Guaranty, or (d) the validity or enforceability
of this Agreement, the Notes or the Subsidiary Guaranty.
6
Schedule B
81
"MEMORANDUM" is defined in Section 5.3.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"NOTES" is defined in Section 1.
"OFFICER'S CERTIFICATE" means a certificate of a Senior
Financial Officer or of any other officer of the Company or a Co-Obligor, as the
case may be, whose responsibilities extend to the subject matter of such
certificate.
"OTHER PURCHASERS" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"PERFORMANCE LETTER OF CREDIT" means a letter of credit
issued to secure ordinary course performance obligations of the Company or a
Subsidiary in connection with active construction projects (including projects
about to be commenced) or bids for prospective construction projects.
"PERMITTED SALE AND LEASEBACK TRANSACTION" means (i) any sale
and leaseback by the Company of its Plainfield, Illinois administrative facility
and (ii) any sale and lease back of all or any portion of the equipment fleet of
the Company and its Subsidiaries, provided that the net proceeds from all of the
transactions described in clauses (i) and (ii) do not in the aggregate exceed
$20,000,000.
"PERSON" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"PLAN" means an "employee benefit plan" (as defined in
section 3(3) of ERISA) that is or, within the preceding five years, has been
established or maintained, or to which contributions are or, within the
preceding five years, have been made or required to be made, by the Company or
any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate
may have any liability.
"PRIORITY DEBT" means, as of any date, the sum (without
duplication) of (a) Indebtedness of the Company and any Subsidiary secured by
Liens not otherwise permitted by Sections 10.7(a) through (h) and (b)
Indebtedness of a Subsidiary that is not permitted by Sections 10.6(a) through
(e).
7
Schedule B
82
"PROPERTY" or "PROPERTIES" means, unless otherwise
specifically limited, real or personal property of any kind, tangible or
intangible, choate or inchoate.
"PURCHASER" means each purchaser listed in Schedule A.
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption
84-14 issued by the United States Department of Labor.
"REQUIRED HOLDERS" means, at any time, the holders of more
than 50% in principal amount of the Notes at the time outstanding (exclusive of
Notes then owned by the Company or any of its Affiliates).
"RESPONSIBLE OFFICER" means any Senior Financial Officer and
any other officer of the Company or a Co-Obligor, as the context requires, with
responsibility for the administration of the relevant portion of this agreement.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SENIOR FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Company or a
Co-Obligor, as the case may be.
"SIGNIFICANT SHAREHOLDERS" means First Reserve Fund VIII,
L.P., WEDGE Group Incorporated and their respective Affiliates.
"SOURCE" is defined in Section 6.2
"SUBSIDIARY" means, as to any Person, any corporation,
association or other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient
equity or voting interests to enable it or them (as a group) ordinarily, in the
absence of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership, limited
liability company or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries (unless such partnership,
limited liability company or joint venture can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Unless the context otherwise clearly requires, any reference to a
"Subsidiary" is a reference to a Subsidiary of the Company.
"SUBSIDIARY GUARANTOR" is defined in Section 1.
"SUBSIDIARY GUARANTY" is defined in Section 1.
8
Schedule B
83
"THIS AGREEMENT" or "THE AGREEMENT" is defined in Section
17.3.
"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 SUBSIDIARY" means, at any time, any Subsidiary
100% of the equity interests (except directors' qualifying shares) and voting
interests of which are owned by any one or more of the Company and its Wholly
Owned Subsidiaries at such time.
9
Schedule B
84
EXHIBIT 1(a)
[FORM OF SENIOR NOTE]
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
CBI SERVICES, INC.
CB&I CONSTRUCTORS, INC.
CB&I TYLER COMPANY
7.34% Senior Note
due July 15, 2007
No. [_____] July 11, 2001
$[_______] PPN: 16725# AA 4
FOR VALUE RECEIVED, the undersigned, CHICAGO BRIDGE & IRON
COMPANY (DELAWARE), a Delaware corporation, CBI SERVICES, INC., a Delaware
corporation, CB&I CONSTRUCTORS, INC., a Texas corporation, and CB&I TYLER
COMPANY, a Delaware corporation (collectively, the "Co-Obligors"), jointly and
severally, promise to pay to [ ], or registered assigns, the
principal sum of $[ ] on July 15, 2007, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 7.34% per annum from the date hereof, payable
semiannually, on January 15 and July 15 in each year, commencing with the
January 15 or July 15 next succeeding the date hereof (except that no interest
payment shall be made on July 15, 2001), until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Purchase Agreement referred to below), payable semiannually as aforesaid
(or, at the option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the greater of (i) 9.34% or (ii) 2% over the
rate of interest publicly announced by Bank One, NA from time to time in
Chicago, Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole
Amount with respect to this Note are to be made in lawful money of the United
States of America at the principal office of Bank One, NA in Chicago, Illinois
or at such other place as the Co-Obligors shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.
This Note is one of a series of Notes (herein called the
"Notes") issued pursuant to a Note Purchase Agreement, dated as of July 1, 2001
as from time to time amended, the "Note Purchase Agreement"), among Chicago
Bridge & Iron Company N.V., the Co-Obligors and the
Exhibit 1(a)
85
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and (ii) to have made the representations set forth in
Sections 6.1 and 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note
Purchase Agreement, upon surrender of this Note for registration of transfer,
duly endorsed, or accompanied by a written instrument of transfer duly executed,
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Co-Obligors may treat the person in whose name
this Note is registered as the owner hereof for the purpose of receiving payment
and for all other purposes, and the Co-Obligors will not be affected by any
notice to the contrary.
The Co-Obligors will make required prepayments of principal
on the dates and in the amounts specified in the Note Purchase Agreement. This
Note is also subject to optional prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase Agreement,
but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreement, occurs and is continuing, the principal of this Note may be declared
or otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
Payment of the principal of, and interest and Make-Whole Amount, if
any, on this Note, and all other amounts due under the Note Purchase Agreement,
is guaranteed pursuant to the terms of a Subsidiary Guaranty dated as of July 1,
2001 of certain Subsidiaries of the Company and the Co-Obligors.
This Note will be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
2
Exhibit 1(a)
86
CBI SERVICES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
CB&I CONSTRUCTORS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
CB&I TYLER COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
3
Exhibit 1(a)
87
EXHIBIT 1(b)
[FORM OF SUBSIDIARY GUARANTY]
THIS GUARANTY (this "Guaranty") dated as of July 1, 2001 is made by the
undersigned (each, a "Guarantor"), in favor of the holders from time to time of
the Notes hereinafter referred to, including each purchaser named in the Note
Purchase Agreement hereinafter referred to, and their respective successors and
assigns (collectively, the "Holders" and each individually, a "Holder").
W I T N E S S E T H:
WHEREAS, CHICAGO BRIDGE & IRON COMPANY N.V., a company organized under
the laws of the Kingdom of the Netherlands having its corporate seat in
Amsterdam (the "Company"); and CHICAGO BRIDGE & IRON COMPANY (DELAWARE), a
Delaware corporation, CBI SERVICES, INC., a Delaware corporation, CB&I
CONSTRUCTORS, INC., a Texas corporation, and CB&I TYLER COMPANY, a Delaware
corporation (each of the foregoing being a Wholly Owned Subsidiary of the
Company and hereinafter referred to individually as a "Co-Obligor" and
collectively as the "Co-Obligors"), and the initial Holders have entered into a
Note Purchase Agreement dated as of July 1, 2001 (the Note Purchase Agreement as
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms and in effect, the "Note Purchase Agreement") pursuant
to which the Co-Obligors will issue Notes to the initial Holders;
WHEREAS, each Guarantor is a Subsidiary or Affiliate of a Co-Obligor
and will derive substantial benefits from the purchase by the Holders of the
Co-Obligors' Notes;
WHEREAS, it is a condition precedent to the obligation of the Holders
to purchase the Notes that each Guarantor shall have executed and delivered this
Guaranty to the Holders; and
WHEREAS, each Guarantor desires to execute and deliver this Guaranty to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the premises and other benefits to
the Guarantors, and of the purchase of the Notes by the Holders, and for other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, each Guarantor makes this Guaranty as follows:
SECTION 1. Definitions. Any capitalized terms not otherwise herein
defined shall have the meanings ascribed to them in the Note Purchase Agreement.
SECTION 2. Guaranty. Each Guarantor, jointly and severally with each
other Guarantor, unconditionally and irrevocably guarantees to the Holders the
due, prompt and complete payment
Exhibit 1(b)
88
by the Co-Obligors of the principal of, Make-Whole Amount, if any, and interest
on, and each other amount due under, the Notes or the Note Purchase Agreement,
when and as the same shall become due and payable (whether at stated maturity or
by required or optional prepayment or by declaration or otherwise) in accordance
with the terms of the Notes and the Note Purchase Agreement (the Notes and the
Note Purchase Agreement being sometimes hereinafter collectively referred to as
the "Note Documents" and the amounts payable by the Co-Obligors under the Note
Documents, and all other monetary obligations of the Co-Obligors thereunder,
being sometimes collectively hereinafter referred to as the "Obligations"). This
Guaranty is a guaranty of payment and not just of collectibility and is in no
way conditioned or contingent upon any attempt to collect from the Co-Obligors
or upon any other event, contingency or circumstance whatsoever. If for any
reason whatsoever the Co-Obligors shall fail or be unable duly, punctually and
fully to pay such amounts as and when the same shall become due and payable,
each Guarantor, without demand, presentment, protest or notice of any kind, will
forthwith pay or cause to be paid such amounts to the Holders under the terms of
such Note Documents, in lawful money of the United States, at the place
specified in the Note Purchase Agreement, or perform or comply with the same or
cause the same to be performed or complied with, together with interest (to the
extent provided for under such Note Documents) on any amount due and owing from
the Co-Obligors. Each Guarantor, promptly after demand, will pay to the Holders
the reasonable costs and expenses of collecting such amounts or otherwise
enforcing this Guaranty, including, without limitation, the reasonable fees and
expenses of counsel. Notwithstanding the foregoing, the right of recovery
against each Guarantor under this Guaranty is limited to the extent it is
judicially determined with respect to any Guarantor that entering into this
Guaranty would violate section 548 of the United States Bankruptcy Code or any
comparable provisions of any state law, in which case such Guarantor shall be
liable under this Guaranty only for amounts aggregating up to the largest amount
that would not render such Guarantor's obligations hereunder subject to
avoidance under section 548 of the United States Bankruptcy Code or any
comparable provisions of any state law.
SECTION 3. Guarantor's Obligations Unconditional. The obligations of
each Guarantor under this Guaranty shall be primary, absolute, irrevocable
(subject to Section 13) and unconditional obligations of each Guarantor, shall
not be subject to any counterclaim, set-off, deduction, diminution, abatement,
recoupment, suspension, deferment, reduction or defense based upon any claim
each Guarantor or any other person may have against the Co-Obligors or any other
person, and to the full extent permitted by applicable law shall remain in full
force and effect without regard to, and shall not be released, discharged or in
any way affected by, any circumstance or condition whatsoever (whether or not
each Guarantor or the Co-Obligors shall have any knowledge or notice thereof),
including:
(a) any termination, amendment or modification of or deletion
from or addition or supplement to or other change in any of the Note
Documents or any other instrument or agreement applicable to any of the
parties to any of the Note Documents;
(b) any furnishing or acceptance of any security, or any
release of any security, for the Obligations, or the failure of any
security or the failure of any person to perfect any interest in any
collateral;
2
Exhibit 1(b)
89
(c) any failure, omission or delay on the part of the Company
or the Co-Obligors to conform or comply with any term of any of the
Note Documents or any other instrument or agreement referred to in
paragraph (a) above, including, without limitation, failure to give
notice to any Guarantor of the occurrence of a "Default" or an "Event
of Default" under any Note Document;
(d) any waiver of the payment, performance or observance of
any of the obligations, conditions, covenants or agreements contained
in any Note Document, or any other waiver, consent, extension,
indulgence, compromise, settlement, release or other action or inaction
under or in respect of any of the Note Documents or any other
instrument or agreement referred to in paragraph (a) above or any
obligation or liability of the Co-Obligors, or any exercise or
non-exercise of any right, remedy, power or privilege under or in
respect of any such instrument or agreement or any such obligation or
liability;
(e) any failure, omission or delay on the part of any of the
Holders to enforce, assert or exercise any right, power or remedy
conferred on such Holder in this Guaranty, or any such failure,
omission or delay on the part of such Holder in connection with any
Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit
of creditors, composition, receivership, conservatorship,
custodianship, liquidation, marshaling of assets and liabilities or
similar proceedings with respect to the Company and the Co-Obligors,
any Guarantor or to any other person or any of their respective
properties or creditors, or any action taken by any trustee or receiver
or by any court in any such proceeding;
(g) any discharge, termination, cancellation, frustration,
irregularity, invalidity or unenforceability, in whole or in part, of
any of the Note Documents or any other agreement or instrument referred
to in paragraph (a) above or any term hereof;
(h) any merger or consolidation of the Company and the
Co-Obligors or any Guarantor into or with any other corporation, or any
sale, lease or transfer of any of the assets of the Company and the
Co-Obligors or any Guarantor to any other person;
(i) any change in the ownership of any shares of capital
stock of the Company and the Co-Obligors or any change in the corporate
relationship between the Company and the Co-Obligors and any Guarantor,
or any termination of such relationship;
(j) any release or discharge, by operation of law, of any
Guarantor from the performance or observance of any obligation,
covenant or agreement contained in this Guaranty; or
3
Exhibit 1(b)
90
(k) any other occurrence, circumstance, happening or event
whatsoever, whether similar or dissimilar to the foregoing, whether
foreseen or unforeseen, and any other circumstance which might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit
recourse against any Guarantor.
Notwithstanding any other provision contained in this Guaranty, each Guarantor's
liability with respect to the principal amount of the Notes shall be no greater
than the liability of the Co-Obligors with respect thereto.
SECTION 4. Full Recourse Obligations. The obligations of each Guarantor
set forth herein constitute the full recourse obligations of such Guarantor
enforceable against it to the full extent of all its assets and properties.
SECTION 5. Waiver. Each Guarantor unconditionally waives, to the extent
permitted by applicable law, (a) notice of any of the matters referred to in
Section 3, (b) notice to such Guarantor of the incurrence of any of the
Obligations, notice to such Guarantor or the Company and the Co-Obligors of any
breach or default by such Company and the Co-Obligors with respect to any of the
Obligations or any other notice that may be required, by statute, rule of law or
otherwise, to preserve any rights of the Holders against such Guarantor, (c)
presentment to or demand of payment from the Co-Obligors or such Guarantor with
respect to any amount due under any Note Document or protest for nonpayment or
dishonor, (d) any right to the enforcement, assertion or exercise by any of the
Holders of any right, power, privilege or remedy conferred in the Note Purchase
Agreement or any other Note Document or otherwise, (e) any requirement of
diligence on the part of any of the Holders, (f) any requirement to exhaust any
remedies or to mitigate the damages resulting from any default under any Note
Document, (g) any notice of any sale, transfer or other disposition by any of
the Holders of any right, title to or interest in the Note Purchase Agreement or
in any other Note Document and (h) any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge, release or defense of a
guarantor or surety or which might otherwise limit recourse against such
Guarantor.
SECTION 6. Subrogation, Contribution, Reimbursement or Indemnity. Until
one year and one day after all Obligations have been indefeasibly paid in full,
each Guarantor agrees not to take any action pursuant to any rights which may
have arisen in connection with this Guaranty to be subrogated to any of the
rights (whether contractual, under the United States Bankruptcy Code, as
amended, including section 509 thereof, under common law or otherwise) of any of
the Holders against the Co-Obligors or against any collateral security or
guaranty or right of offset held by the Holders for the payment of the
Obligations. Until one year and one day after all Obligations have been
indefeasibly paid in full, each Guarantor agrees not to take any action pursuant
to any contractual, common law, statutory or other rights of reimbursement,
contribution, exoneration or indemnity (or any similar right) from or against
the Co-Obligors that may have arisen in connection with this Guaranty. So long
as the Obligations remain, if any amount shall be paid by or on behalf of the
Co-Obligors to any Guarantor on account of any of the rights waived in this
paragraph, such amount shall be held by such Guarantor in trust,
4
Exhibit 1(b)
91
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Holders (duly endorsed by such
Guarantor to the Holders, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Holders may determine. The
provisions of this paragraph shall survive the term of this Guaranty and the
payment in full of the Obligations.
SECTION 7. Effect of Bankruptcy Proceedings, etc. This Guaranty shall
continue to be effective or be automatically reinstated, as the case may be, if
at any time payment, in whole or in part, of any of the sums due to any of the
Holders pursuant to the terms of the Note Purchase Agreement or any other Note
Document is rescinded or must otherwise be restored or returned by such Holder
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Company and the Co-Obligors or any other person, or upon or as a result of
the appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to the Company and the Co-Obligors or other person or any
substantial part of its property, or otherwise, all as though such payment had
not been made. If an event permitting the acceleration of the maturity of the
principal amount of the Notes shall at any time have occurred and be continuing,
and such acceleration shall at such time be prevented by reason of the pendency
against the Company and the Co-Obligors or any other person of a case or
proceeding under a bankruptcy or insolvency law, each Guarantor agrees that, for
purposes of this Guaranty and its obligations hereunder, the maturity of the
principal amount of the Notes and all other Obligations shall be deemed to have
been accelerated with the same effect as if any Holder had accelerated the same
in accordance with the terms of the Note Purchase Agreement or other applicable
Note Document, and such Guarantor shall forthwith pay such principal amount,
Make-Whole Amount, if any, and interest thereon and any other amounts guaranteed
hereunder without further notice or demand.
SECTION 8. Term of Agreement. This Guaranty and all guaranties,
covenants and agreements of each Guarantor contained herein shall continue in
full force and effect and shall not be discharged until such time as all of the
Obligations shall be paid and performed in full and all of the agreements of
such Guarantor hereunder shall be duly paid and performed in full.
SECTION 9. Representations and Warranties. Each Guarantor represents
and warrants to each Holder that:
(a) such Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and has the corporate power and authority to own and
operate its property, to lease the property it operates as lessee and
to conduct the business in which it is currently engaged;
(b) such Guarantor has the corporate power and authority and
the legal right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of such Guarantor enforceable in accordance with its terms,
except as enforceability may be
5
Exhibit 1(b)
92
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any material requirement of law or
material contractual obligation of such Guarantor and will not result
in or require the creation or imposition of any Lien on any of the
properties, revenues or assets of such Guarantor pursuant to the
provisions of any material contractual obligation of such Guarantor or
any requirement of law;
(e) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or governmental authority is
required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty;
(f) no litigation, investigation or proceeding of or before
any arbitrator or governmental authority is pending or, to the
knowledge of such Guarantor, threatened by or against such Guarantor or
any of its properties or revenues (i) with respect to this Guaranty or
any of the transactions contemplated hereby or (ii) which could
reasonably be expected to have a material adverse effect upon the
business, operations or financial condition of the Guarantors and their
Subsidiaries taken as a whole;
(g) the execution, delivery and performance of this Guaranty
will not violate any provision of any order, judgment, writ, award or
decree of any court, arbitrator or Governmental Authority, domestic or
foreign, or of the charter or by-laws of such Guarantor or of any
securities issued by such Guarantor; and
(h) except as otherwise set forth on Schedule 5.19 to the
Note Purchase Agreement, the Guarantor (after giving due consideration
to any rights of contribution) has received fair consideration and
reasonably equivalent value for the incurrence of its obligations
hereunder or as contemplated hereby and after giving effect to the
transactions contemplated herein, (i) the fair value of the assets of
the Guarantor (both at fair valuation and at present fair saleable
value) exceeds its liabilities, (ii) the Guarantor is able to and
expects to be able to pay its debts as they mature, and (iii) the
Guarantor has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
SECTION 10. Notices. All notices under the terms and provisions hereof
shall be in writing, and shall be delivered or sent by telex or telecopy or
mailed by first-class mail, postage prepaid, addressed (a) if to any Holder at
the address set forth in, the Note Purchase Agreement or (b) if to a Guarantor,
in care of the Company at the Company's address set forth in the Note Purchase
Agreement, or in each case at such other address as the Co-Obligors, any Holder
or such Guarantor shall from time to time designate in writing to the other
parties. Any notice so addressed shall be deemed to be given when actually
received.
6
Exhibit 1(b)
93
SECTION 11. Survival. All warranties, representations and covenants
made by each Guarantor herein or in any certificate or other instrument
delivered by it or on its behalf hereunder shall be considered to have been
relied upon by the Holders and shall survive the execution and delivery of this
Guaranty, regardless of any investigation made by any of the Holders. All
statements in any such certificate or other instrument shall constitute
warranties and representations by such Guarantor hereunder.
SECTION 12. Submission to Jurisdiction. Each Guarantor irrevocably
submits to the jurisdiction of the courts of the State of Illinois and of the
courts of the United States of America having jurisdiction in the State of
Illinois for the purpose of any legal action or proceeding in any such court
with respect to, or arising out of, this Guaranty, the Note Purchase Agreement
or the Notes. Each Guarantor consents to process being served in any suit,
action or proceeding by mailing a copy thereof by registered or certified mail,
postage prepaid, return receipt requested, to the address of such Guarantor
specified in or designated pursuant to the Note Purchase Agreement. Each
Guarantor agrees that such service upon receipt (i) shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted by law, be taken and
held to be valid personal service upon and personal delivery to such Guarantor.
SECTION 13. Miscellaneous. Any provision of this Guaranty that 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. To the extent permitted
by applicable law, each Guarantor hereby waives any provision of law that
renders any provisions hereof prohibited or unenforceable in any respect. The
terms of this Guaranty shall be binding upon, and inure to the benefit of, each
Guarantor and the Holders and their respective successors and assigns. No term
or provision of this Guaranty may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by each Guarantor and the
Holders. The section and paragraph headings in this Guaranty and the table of
contents are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof, and all references herein
to numbered sections, unless otherwise indicated, are to sections in this
Guaranty. This Guaranty shall in all respects be governed by, and construed in
accordance with, the laws of the State of Illinois, including all matters of
construction, validity and performance.
7
Exhibit 1(b)
94
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty
to be duly executed as of the day and year first above written.
CHICAGO BRIDGE & IRON COMPANY
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CBI COMPANY LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CBI OVERSEAS LLC
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ASIA PACIFIC SUPPLY COMPANY
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CENTRAL TRADING COMPANY, LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
8
Exhibit 1(b)
95
HOWE-BAKER INTERNATIONAL, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
HOWE-BAKER ENGINEERS, LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
HOWE-BAKER HOLDINGS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
HOWE-BAKER MANAGEMENT, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
HOWE-BAKER, L.P.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
MATRIX ENGINEERING, LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
9
Exhibit 1(b)
96
HBI HOLDINGS, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
HOWE-BAKER INTERNATIONAL
MANAGEMENT, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
A&B BUILDERS, LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
MATRIX MANAGEMENT SERVICES, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALLIDUS TECHNOLOGIES
INTERNATIONAL, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALLIDUS TECHNOLOGIES, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CONSTRUCTORS INTERNATIONAL, L.L.C
10
Exhibit 1(b)
97
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PROCESS MANAGEMENT, L.L.C.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
XL TECHNOLOGY SYSTEMS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CHICAGO BRIDGE & IRON COMPANY B.V.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CHICAGO BRIDGE & IRON (ANTILLES) N.V.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
LEALAND FINANCE COMPANY B.V.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
HORTON CBI, LIMITED
By:
-----------------------------------
Name:
---------------------------------
11
Exhibit 1(b)
98
Title:
--------------------------------
CBI CONSTRUCTORS LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
12
Exhibit 1(b)
99
CB&I (EUROPE) B.V.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CBI VENEZOLANA, S.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CBI CONSTRUCCIONES S.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CBI EASTERN ANSTALT
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CBI CONSTRUCTORS PTY. LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CMP HOLDINGS B.V.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
13
Exhibit 1(b)
100
CBI HOLDINGS (U.K.) LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ULTRAPURE SYSTEMS (ASIA PACIFIC) PTE.
LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CB&I (NIGERIA) LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CHICAGO BRIDGE & IRON (ESPANA) S.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CBI (PHILIPPINES) INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
14
Exhibit 1(b)
101
ARABIAN GULF MATERIAL SUPPLY COMPANY
LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PACIFIC RIM MATERIAL SUPPLY COMPANY
LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SOUTHERN TROPIC MATERIAL SUPPLY
COMPANY, LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
15
Exhibit 1(b)
102
FORM OF JOINDER TO SUBSIDIARY GUARANTY
The undersigned (the "Guarantor"), joins in the Subsidiary Guaranty
dated as of July 1, 2001 from the Guarantors named therein in favor of the
Holders, as defined therein, and agrees to be bound by all of the terms thereof
and represents and warrants to the Holders that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and has the corporate power and authority to own and
operate its property, to lease the property it operates as lessee and
to conduct the business in which it is currently engaged;
(b) the Guarantor has the corporate power and authority and
the legal right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any material requirement of law or
material contractual obligation of the Guarantor and will not result in
or require the creation or imposition of any Lien on any of the
properties, revenues or assets of the Guarantor pursuant to the
provisions of any material contractual obligation of the Guarantor or
any requirement of law;
(e) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or governmental authority is
required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty;
(f) no litigation, investigation or proceeding of or before
any arbitrator or governmental authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or
any of its properties or revenues (i) with respect to this Guaranty or
any of the transactions contemplated hereby or (ii) which could
reasonably be expected to have a material adverse effect upon the
business, operations or financial condition of the Guarantors and their
Subsidiaries taken as a whole;
(g) the execution, delivery and performance of this Guaranty
will not violate any provision of any order, judgment, writ, award or
decree of any court, arbitrator or Governmental Authority, domestic or
foreign, or of the charter or by-laws of the Guarantor or of any
securities issued by the Guarantor; and
16
Exhibit 1(b)
103
(h) except as otherwise disclosed in writing to the Holders,
the Guarantor (after giving due consideration to any rights of
contribution) has received fair consideration and reasonably equivalent
value for the incurrence of its obligations hereunder or as
contemplated hereby and after giving effect to the transactions
contemplated herein, (i) the fair value of the assets of the Guarantor
(both at fair valuation and at present fair saleable value) exceeds its
liabilities, (ii) the Guarantor is able to and expects to be able to
pay its debts as they mature, and (iii) the Guarantor has capital
sufficient to carry on its business as conducted and as proposed to be
conducted.
Capitalized terms used but not defined herein have the meanings ascribed thereto
in the Subsidiary Guaranty.
IN WITNESS WHEREOF, the undersigned has caused this Joinder
to Subsidiary Guaranty to be duly executed as of __________, ____.
[Name of Guarantor]
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
17
Exhibit 1(b)
104
EXHIBIT 4.4(a)
FORM OF OPINION OF COUNSEL
TO THE COMPANY, THE CO-OBLIGORS
AND THE SUBSIDIARY GUARANTORS
The opinions of Winston & Strawn (as to paragraphs 4, 9 and 10), Robert
H. Wolfe, Esq., Vice President and General Counsel of Chicago Bridge & Iron
Company, and De Brauw Blackstone Westbroek P.C., shall be collectively to the
effect that:
1. Each of the Company, each Co-Obligor and each domestic Subsidiary
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and each has all
requisite corporate power and authority to own and operate its properties, to
carry on its business as now conducted, and, in the case of the Company, to
enter into and perform the Note Purchase Agreement, in the case of each
Co-Obligor, to enter into and perform the Note Purchase Agreement and to issue
and sell the Notes and, in the case of each domestic Subsidiary Guarantor, to
enter into and perform the Subsidiary Guaranty.
2. The Note Purchase Agreement and, in the case of each Co-Obligor, the
Notes have been duly authorized by proper corporate action on the part of the
Company and each Co-Obligor, as the case may be, and the Note Purchase Agreement
and, in the case of each Co-Obligor, the Notes have been duly executed and
delivered by an authorized officer of the Company or each Co-Obligor, as the
case may be, and constitute the legal, valid and binding agreements of the
Company and each Co-Obligor, enforceable in accordance with their terms, except
to the extent that enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of the rights of creditors or by
equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
3. The Subsidiary Guaranty has been duly authorized by proper corporate
action on the part of each domestic Subsidiary Guarantor, has been duly executed
and delivered by an authorized officer of each such domestic Subsidiary
Guarantor, and constitutes the legal, valid and binding obligation of each
domestic Subsidiary Guarantor, enforceable in accordance with its terms, except
to the extent the enforcement thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of the rights of
creditors or by equitable principles, regardless of whether enforcement is
sought in a proceeding in equity or at law.
4. Based on the representations set forth in the Agreement, the
offering, sale and delivery of the Notes and delivery of the Subsidiary Guaranty
do not require the registration of the Notes or the Subsidiary Guaranty under
the Securities Act of 1933, as amended, or the qualification of an indenture
under the Trust Indenture Act of 1939, as amended.
5. No authorization, approval or consent of, and no designation,
filing, declaration, registration and/or qualification with, any Netherlands,
U.S. Federal or Texas or Illinois state
Exhibit 4.4(a)
105
Governmental Authority is necessary or required in connection with the
execution, delivery and performance by the Company or any Co-Obligor of the Note
Purchase Agreement or the offering, issuance and sale by any Co-Obligor of the
Notes, and no authorization, approval or consent of, and no designation, filing,
declaration, registration and/or qualification with, any Netherlands, U.S.
Federal or Texas or Illinois state Governmental Authority is necessary or
required in connection with the execution, delivery and performance by any
domestic Subsidiary Guarantor of the Subsidiary Guaranty.
6. The issuance and sale of the Notes by the Co-Obligors, the
performance by the Company of the terms and conditions of the Note Purchase
Agreement, the performance by the Co-Obligors of the terms and conditions of the
Notes and the Note Purchase Agreement, and the execution and delivery by the
Company and the Co-Obligors of the Note Purchase Agreement do not conflict with,
or result in any breach or violation of any of the provisions of, or constitute
a default under, or result in the creation or imposition of any Lien on, the
property of the Company or any domestic Subsidiary, including the Co-Obligors,
pursuant to the provisions of (i) the certificate or articles of incorporation,
articles of association, bylaws or code of regulations of the Company or any
domestic Subsidiary, including the Co-Obligors, (ii) any loan agreement known to
such counsel to which the Company or any domestic Subsidiary, including the
Co-Obligors, is a party or by which any of them or their property is bound,
(iii) any other Material agreement or instrument known to such counsel to which
the Company or any domestic Subsidiary, including the Co-Obligors, is a party or
by which any of them or their property is bound, (iv) any Dutch, U.S. federal or
Texas or Illinois state law (including usury laws) or regulation or the Delaware
General Corporation Law applicable to the Company or any Co-Obligors, or (v) to
the knowledge of such counsel, any order, writ, injunction or decree of any U.S.
federal or Texas or Illinois state Governmental Authority or the Chancery Court,
appellate courts or Secretary of State of the State of Delaware applicable to
the Company or any Co-Obligor.
7. The execution, delivery and performance of the Subsidiary Guaranty
will not conflict with, or result in any breach or violation of any of the
provisions of, or constitute a default under, or result in the creation or
imposition of any Lien on, the property of the Company, any Co-Obligor or any
domestic Subsidiary Guarantor pursuant to the provisions of (i) its certificate
or articles of incorporation or by-laws, (ii) any loan agreement known to such
counsel to which the Company, any Co-Obligor or any domestic Subsidiary
Guarantor is a party or by which any of them or their property is bound, (iii)
any other Material agreement or instrument known to such counsel to which the
Company, any Co-Obligor or any domestic Subsidiary Guarantor is a party or by
which any of them or their property is bound, (iv) any Dutch, U.S. federal or
Texas or Illinois state law or regulation or the Delaware General Corporation
Law applicable to the Company, any Co-Obligor or any domestic Subsidiary
Guarantor, or (v) to the knowledge of such counsel, any order, writ, injunction
or decree of any U.S. federal or Texas or Illinois state Governmental Authority
or the Chancery Court, appellate courts or Secretary of State of the State of
Delaware applicable to the Company, any Co-Obligor or any domestic Subsidiary
Guarantor.
8. Except as disclosed in Section 5.8 to the Note Purchase Agreement or
in Item 3 to the Form 10-K, to such counsel's knowledge there are no actions,
suits or proceedings pending,
2
Exhibit 4.4(a)
106
or threatened against, or affecting the Company, any Co-Obligor or any
Subsidiary, at law or in equity or before or by any Governmental Authority, that
are likely to result, individually or in the aggregate, in a Material Adverse
Effect.
9. None of the Company, any Co-Obligor or any other domestic Subsidiary
is (i) a "public utility company" or a "holding company," or a "subsidiary
company" of a "holding company," as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended, (ii) a "public utility" as defined in
the Federal Power Act, as amended, or (iii) an "investment company" or a company
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
10. The issuance of the Notes and the intended use of the proceeds of
the sale of the Notes do not violate or conflict with Regulation U, T or X of
the Board of Governors of the Federal Reserve System.
The opinions of Robert H. Wolfe, Esq., and De Brauw Blackstone Westbroek P.C.
shall state that Gardner, Carton & Douglas may rely on such opinions to the
extent set forth in such counsel's opinion and shall cover such other matters
relating to the sale of the Notes as the Purchasers may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and officers of
the Company, the Co-Obligors and the domestic Subsidiary Guarantors. With
respect to matters governed by the laws of the State of Texas, such counsel may
rely upon the opinion of counsel deemed (and stated in their opinion to be
deemed) by them to be competent and reliable.
3
Exhibit 4.4(a)
107
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The opinion of Gardner, Carton & Douglas, special counsel to the
Purchasers, shall be to the effect that:
1. Each of the Company and each Co-Obligor is a corporation organized
and validly existing in good standing under the laws of its state of
incorporation, with requisite corporate power and authority to enter into the
Agreement and, in the case of each Co-Obligor, to issue and sell the Notes.
2. The Note Purchase Agreement and, in the case of each Co-Obligor, the
Notes have been duly authorized by proper corporate action on the part of the
Company and each Co-Obligor, as the case may be, have been duly executed and
delivered by an authorized officer of the Company and each Co-Obligor, as the
case may be, and constitute the legal, valid and binding agreements of the
Company and each Co-Obligor, enforceable in accordance with their terms, except
to the extent that enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of the rights of creditors or by
equitable principles, regardless of whether enforcement is sought in a
proceeding in equity or at law.
3. The Subsidiary Guaranty constitutes the legal, valid and binding
obligation of each domestic Subsidiary Guarantor, enforceable in accordance with
its terms, except to the extent the enforcement thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws of general application relating to or affecting the
enforcement of the rights of creditors or by equitable principles, regardless of
whether enforcement is sought in a proceeding in equity or at law.
4. Based upon the representations set forth in the Agreement, the
offering, sale and delivery of the Notes and the execution and delivery of the
Subsidiary Guaranty does not require the registration of the Notes or the
Subsidiary Guaranty under the Securities Act of 1933, as amended, nor the
qualification of an indenture under the Trust Indenture Act of 1939, as amended.
5. The issuance and sale of the Notes and compliance with the terms and
provisions of the Notes and the Agreement will not conflict with or result in
any breach of any of the provisions of the Certificate of Incorporation or
By-Laws of the Company or any Co-Obligor.
6. No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any governmental body, federal or
state, is necessary in connection with the execution and delivery of the
Agreement or the Notes.
Exhibit 4.4(b)
108
The opinion of Gardner, Carton & Douglas also shall state that the opinions of
Winston & Strawn, Robert H. Wolfe, Esq., and De Brauw Blackstone Westbroek P.C.
delivered to you pursuant to the Agreement, are satisfactory in form and scope
to Gardner, Carton & Douglas, and, in its opinion, it and the Purchasers are
justified in relying thereon. As to matters of Dutch and Texas law, Gardner,
Carton & Douglas may rely on the opinions of counsel for the Company, the
Co-Obligors or the Subsidiary Guarantors. The opinion shall also cover such
other matters relating to the sale of the Notes as the Purchasers may reasonably
request.
2
Exhibit 4.4(b)