1
EXHIBIT 99.3
EXECUTION COPY
364-DAY CREDIT AGREEMENT
Dated as of August 29, 2001
among
CHICAGO BRIDGE & IRON COMPANY N.V.,
THE SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS
and
BANK ONE, NA,
(HAVING ITS PRINCIPAL OFFICE IN CHICAGO, ILLINOIS),
AS ADMINISTRATIVE AGENT
and
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT
and
HARRIS TRUST AND SAVINGS BANK
AS DOCUMENTATION AGENT
------------------------------------------------------------------------
BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND SOLE BOOK RUNNER
------------------------------------------------------------------------
SIDLEY AUSTIN BROWN & WOOD
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
2
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS...........................................................................................1
1.1. Certain Defined Terms...........................................................................1
1.2. Singular/Plural References; Accounting Terms...................................................25
1.3. References.....................................................................................25
1.4. Supplemental Disclosure........................................................................26
ARTICLE II: REVOLVING LOAN FACILITY.............................................................................26
2.1. Revolving Loans................................................................................26
(A) Amount of Revolving Loans.............................................................26
(B) Borrowing/Election Notice.............................................................27
(C) Making of Revolving Loans.............................................................27
2.2. Swing Line Loans...............................................................................27
(A) Amount of Swing Line Loans............................................................27
(B) Borrowing/Election Notice.............................................................27
(C) Making of Swing Line Loans............................................................27
(D) Repayment of Swing Line Loans.........................................................28
2.3. Rate Options for all Advances; Maximum Interest Periods........................................29
2.4. Optional Payments; Mandatory Prepayments.......................................................29
(A) Optional Payments.....................................................................29
(B) Determination of Dollar Amounts of Letters of Credit; Mandatory Prepayments of
Revolving Loans.......................................................................29
2.5. Changes in Commitments.........................................................................30
2.6. Method of Borrowing............................................................................30
2.7. Method of Selecting Types and Interest Periods for Advances....................................30
2.8. Minimum Amount of Each Advance.................................................................31
2.9. Method of Selecting Types and Interest Periods for Conversion and Continuation of
Advances.......................................................................................31
(A) Right to Convert......................................................................31
(B) Automatic Conversion and Continuation.................................................31
(C) No Conversion Post-Default or Post-Unmatured Default..................................31
(D) Borrowing/Election Notice.............................................................31
2.10. Default Rate...................................................................................32
2.11. Method of Payment..............................................................................32
(A) Method of Payment.....................................................................32
(B) Market Disruption.....................................................................33
2.12. Evidence of Debt...............................................................................33
(A) Loan Account..........................................................................33
(B) Register..............................................................................33
(C) Entries in Loan Account and Register..................................................33
(D) Noteless Transaction; Notes Issued Upon Request.......................................34
2.13. Telephonic Notices.............................................................................34
ii
3
2.14. Promise to Pay; Interest and Commitment Fees; Interest Payment Dates; Interest and Fee
Basis; Taxes; Loan and Control Accounts........................................................34
(A) Promise to Pay........................................................................34
(B) Interest Payment Dates................................................................34
(C) Commitment Fees; Additional Fees......................................................35
(D) Interest and Fee Basis; Applicable Floating Rate Margins, Applicable
Eurodollar Margin, Applicable L/C Fee Percentage and Applicable Commitment Fee
Percentage............................................................................35
(E) Taxes.................................................................................37
2.15. Notification of Advances, Interest Rates, Prepayments and Aggregate Commitment
Reductions.....................................................................................40
2.16. Lending Installations..........................................................................40
2.17. Non-Receipt of Funds by the Administrative Agent...............................................40
2.18. Termination Date...............................................................................41
2.19. Replacement of Certain Lenders.................................................................41
2.20. Subsidiary Borrowers...........................................................................42
2.21. Judgment Currency..............................................................................42
2.22. Extension of Termination Date..................................................................43
ARTICLE III: THE LETTER OF CREDIT FACILITY......................................................................43
3.1. Obligation to Issue Letters of Credit..........................................................43
3.2. Transitional Provision.........................................................................44
3.3. Types and Amounts..............................................................................44
3.4. Conditions.....................................................................................44
3.5. Procedure for Issuance of Letters of Credit....................................................45
(A) Issuance..............................................................................45
(B) Notice................................................................................45
(C) No Amendment..........................................................................45
3.6. Letter of Credit Participation.................................................................45
3.7. Reimbursement Obligation.......................................................................46
3.8. Letter of Credit Fees..........................................................................46
3.9. Borrower and Issuing Bank Reporting Requirements...............................................47
3.10. Indemnification; Exoneration...................................................................47
(A) Indemnification.......................................................................47
(B) Risk Assumption.......................................................................48
(C) No Liability..........................................................................48
(D) Survival of Agreements and Obligations................................................48
3.11. Market Disruption..............................................................................48
ARTICLE IV: CHANGE IN CIRCUMSTANCES.............................................................................49
4.1. Yield Protection...............................................................................49
(A) Yield Protection......................................................................49
(B) Non-U.S. Reserve Costs or Fees With Respect to Loans and Letters of Credit to
Borrowers.............................................................................50
4.2. Changes in Capital Adequacy Regulations........................................................50
4.3. Availability of Types of Advances..............................................................51
iii
4
4.4. Funding Indemnification........................................................................51
4.5. Lender Statements; Survival of Indemnity.......................................................51
ARTICLE V: CONDITIONS PRECEDENT.................................................................................52
5.1. Initial Advances and Letters of Credit.........................................................52
5.2. Initial Advance to Each New Subsidiary Borrower................................................53
5.3. Each Advance and Letter of Credit..............................................................53
(A) No Defaults...........................................................................54
(B) Representations and Warranties........................................................54
(C) Maximum Amounts.......................................................................54
ARTICLE VI: REPRESENTATIONS AND WARRANTIES......................................................................54
6.1. Organization; Corporate Powers.................................................................54
6.2. Authority, Execution and Delivery; Transaction Documents.......................................54
(A) Power and Authority...................................................................54
(B) Execution and Delivery................................................................55
(C) Transaction Documents.................................................................55
6.3. No Conflict; Governmental Consents.............................................................55
6.4. 6.4. Financial Statements......................................................................55
(A) Pro Forma Financials..................................................................55
(B) Audited Financial Statements..........................................................56
(C) Interim Financial Statements..........................................................56
6.5. No Material Adverse Change.....................................................................56
6.6. Taxes..........................................................................................56
(A) Tax Examinations......................................................................56
(B) Payment of Taxes......................................................................57
6.7. Litigation; Loss Contingencies and Violations..................................................57
6.8. Subsidiaries...................................................................................57
6.9. ERISA..........................................................................................58
6.10. Accuracy of Information........................................................................58
6.11. Securities Activities..........................................................................59
6.12. Material Agreements............................................................................59
6.13. Compliance with Laws...........................................................................59
6.14. Assets and Properties..........................................................................59
6.15. Statutory Indebtedness Restrictions............................................................59
6.16. Insurance......................................................................................59
6.17. Environmental Matters..........................................................................60
(A) Environmental Representations.........................................................60
(B) Materiality...........................................................................60
6.18. Representations and Warranties of each Subsidiary Borrower.....................................60
(A) Organization and Corporate Powers.....................................................60
(B) Binding Effect........................................................................61
(C) No Conflict; Government Consent.......................................................61
(D) Filing................................................................................61
(E) No Immunity...........................................................................62
(F) Application of Representations and Warranties.........................................62
iv
5
6.19. Benefits.......................................................................................62
6.20. Solvency.......................................................................................62
ARTICLE VII: COVENANTS..........................................................................................62
7.1. Reporting......................................................................................62
(A) Financial Reporting...................................................................62
(B) Notice of Default.....................................................................64
(C) Lawsuits..............................................................................64
(D) ERISA Notices.........................................................................65
(E) Other Indebtedness....................................................................66
(F) Other Reports.........................................................................66
(G) Environmental Notices.................................................................66
(H) Other Information.....................................................................66
7.2. Affirmative Covenants..........................................................................66
(A) Existence, Etc........................................................................66
(B) Corporate Powers; Conduct of Business.................................................66
(C) Compliance with Laws, Etc.............................................................67
(D) Payment of Taxes and Claims; Tax Consolidation........................................67
(E) Insurance.............................................................................67
(F) Inspection of Property; Books and Records; Discussions................................67
(G) ERISA Compliance......................................................................68
(H) Maintenance of Property...............................................................68
(I) Environmental Compliance..............................................................68
(J) Use of Proceeds.......................................................................68
(K) Subsidiary Guarantors.................................................................68
(L) Foreign Employee Benefit Compliance...................................................69
7.3. Negative Covenants.............................................................................69
(A) Subsidiary Indebtedness...............................................................70
(B) Sales of Assets.......................................................................71
(C) Liens.................................................................................71
(D) Investments...........................................................................72
(E) Contingent Obligations................................................................73
(F) Conduct of Business; Subsidiaries; Permitted Acquisitions.............................73
(G) Transactions with Shareholders and Affiliates.........................................74
(H) Restriction on Fundamental Changes....................................................74
(I) Sales and Leasebacks..................................................................75
(J) Margin Regulations....................................................................75
(K) ERISA.................................................................................75
(L) Corporate Documents...................................................................75
(M) Fiscal Year...........................................................................75
(N) Subsidiary Covenants..................................................................76
(O) Hedging Obligations...................................................................76
(P) Issuance of Disqualified Stock........................................................76
(Q) Non-Guarantor Subsidiaries............................................................76
(R) Intercompany Indebtedness.............................................................76
7.4. Financial Covenants............................................................................76
v
6
(A) Maximum Leverage Ratio................................................................76
(B) Minimum Fixed Charge Coverage Ratio...................................................77
(C) Minimum Interest Expense Coverage Ratio...............................................77
(D) Minimum Consolidated Net Worth........................................................78
ARTICLE VIII: DEFAULTS..........................................................................................78
8.1. Defaults.......................................................................................78
(A) Failure to Make Payments When Due.....................................................78
(B) Breach of Certain Covenants...........................................................78
(C) Breach of Representation or Warranty..................................................78
(D) Other Defaults........................................................................78
(E) Default as to Other Indebtedness......................................................79
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc..................................79
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc....................................80
(H) Judgments and Attachments.............................................................80
(I) Dissolution...........................................................................80
(J) Loan Documents........................................................................80
(K) Termination Event.....................................................................80
(L) Waiver of Minimum Funding Standard....................................................80
(M) Change of Control.....................................................................80
(N) Environmental Matters.................................................................80
(O) Guarantor Revocation..................................................................81
ARTICLE IX: ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES......................................................81
9.1. Termination of Commitments; Acceleration.......................................................81
9.2. Amendments.....................................................................................81
9.3. Preservation of Rights.........................................................................82
ARTICLE X: GUARANTY.............................................................................................83
10.1. Guaranty.......................................................................................83
10.2. Waivers; Subordination of Subrogation..........................................................83
10.3. Guaranty Absolute..............................................................................84
10.4. Acceleration...................................................................................84
10.5. Marshaling; Reinstatement......................................................................85
10.6. Termination Date...............................................................................85
ARTICLE XI: GENERAL PROVISIONS..................................................................................85
11.1. Survival of Representations....................................................................85
11.2. Governmental Regulation........................................................................85
11.3. Performance of Obligations.....................................................................85
11.4. Headings.......................................................................................86
11.5. Entire Agreement...............................................................................86
11.6. Several Obligations; Benefits of this Agreement................................................86
11.7. Expenses; Indemnification......................................................................86
(A) Expenses..............................................................................86
vi
7
(B) Indemnity.............................................................................87
(C) Waiver of Certain Claims; Settlement of Claims........................................88
(D) Survival of Agreements................................................................88
11.8. Numbers of Documents...........................................................................88
11.9. Accounting.....................................................................................88
11.10. Severability of Provisions.....................................................................89
11.11. Nonliability of Lenders........................................................................89
11.12. GOVERNING LAW..................................................................................89
11.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL........................................89
(A) EXCLUSIVE JURISDICTION................................................................89
(B) OTHER JURISDICTIONS...................................................................90
(C) VENUE.................................................................................90
(D) SERVICE OF PROCESS....................................................................90
(E) WAIVER OF JURY TRIAL..................................................................90
(F) ADVICE OF COUNSEL.....................................................................91
11.14. Other Transactions.............................................................................91
11.15. Subordination of Intercompany Indebtedness.....................................................91
11.16. Lender's Not Utilizing Plan Assets.............................................................92
11.17. Collateral.....................................................................................93
ARTICLE XII: THE ADMINISTRATIVE AGENT...........................................................................93
12.1. Appointment; Nature of Relationship............................................................93
12.2. Powers.........................................................................................93
12.3. General Immunity...............................................................................93
12.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc...................................93
12.5. Action on Instructions of Lenders..............................................................94
12.6. Employment of Agents and Counsel...............................................................94
12.7. Reliance on Documents; Counsel.................................................................94
12.8. The Administrative Agent's Reimbursement and Indemnification...................................94
12.9. Rights as a Lender.............................................................................94
12.10. Lender Credit Decision.........................................................................95
12.11. Successor Administrative Agent.................................................................95
12.12. Documentation Agent, Syndication Agent, and Arranger...........................................95
ARTICLE XIII: SETOFF; RATABLE PAYMENTS..........................................................................96
13.1. Setoff.........................................................................................96
13.2. Ratable Payments...............................................................................96
13.3. Application of Payments........................................................................96
13.4. Relations Among Lenders........................................................................97
(A) No Action Without Consent.............................................................97
(B) Not Partners; No Liability............................................................97
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..................................................97
14.1. Successors and Assigns.........................................................................97
14.2. Participations.................................................................................98
vii
8
(A) Permitted Participants; Effect........................................................98
(B) Voting Rights.........................................................................98
(C) Benefit of Setoff.....................................................................99
14.3. Assignments....................................................................................99
(A) Permitted Assignments.................................................................99
(B) Effect; Effective Date................................................................99
(C) The Register.........................................................................100
(D) Designated Lender....................................................................100
14.4. Confidentiality...............................................................................101
14.5. Dissemination of Information..................................................................102
ARTICLE XV: NOTICES............................................................................................102
15.1. Giving Notice.................................................................................102
15.2. Change of Address.............................................................................102
ARTICLE XVI: COUNTERPARTS......................................................................................102
viii
9
EXHIBITS AND SCHEDULES
Exhibits
EXHIBIT A -- Commitments (Definitions)
EXHIBIT B -- Form of Borrowing/Election Notice (Section 2.2 and Section
2.7 and Section 2.9)
EXHIBIT C -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT D -- Form of Assignment and Acceptance Agreement (Sections 2.19
and 14.3)
EXHIBIT E -- Form of Company's US Counsel's Opinion (Section 5.1)
EXHIBIT E-1 -- Form of Company's Foreign Counsel's Opinion (Section 5.1)
EXHIBIT E-2 -- Form of Counsel's Opinion for Subsidiary Borrowers
EXHIBIT F -- List of Closing Documents (Section 5.1)
EXHIBIT G -- Form of Officer's Certificate (Sections 5.3 and
7.1(A)(iii))
EXHIBIT H -- Form of Compliance Certificate (Sections 5.3 and
7.1(A)(iii))
EXHIBIT I -- Form of Subsidiary Guaranty (Definitions)
EXHIBIT J -- Form of Revolving Loan Note
EXHIBIT K -- Form of Assumption Letter (Definitions)
EXHIBIT L -- Form of Designation Agreement (Section 14.3(D))
Schedules
Schedule 1.1.1 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.2 -- Permitted Existing Investments (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 1.1.4 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.5 -- Material Subsidiaries and Foreign Subsidiaries that are
not Excluded Foreign Subsidiaries
Schedule 6.4 -- Pro Forma Financial Statements (Section 6.4(A))
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.17 -- Environmental Matters (Section 6.17)
Schedule 7.3(N) -- Subsidiary Covenants (Section 7.3(N))
ix
10
364-DAY CREDIT AGREEMENT
This 364-Day Credit Agreement dated as of August 29, 2001 is entered
into among Chicago Bridge & Iron Company N.V., a corporation organized under the
laws of The Kingdom of the Netherlands (the "Company"), and one or more
Subsidiaries of the Company (whether now existing or hereafter formed
collectively referred to herein as the "Subsidiary Borrowers"), the institutions
from time to time parties hereto as Lenders, whether by execution of this
Agreement or an Assignment Agreement pursuant to Section 14.3, and Bank One, NA,
in its capacity as contractual representative (the "Administrative Agent") for
itself and the other Lenders. The parties hereto agree as follows:
ARTICLE 1: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined as
used in this Agreement:
"Accounting Change" is defined in Section 11.9.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person, firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding Equity Interests of another Person.
"Administrative Agent" means Bank One in its capacity as contractual
representative for itself and the Lenders pursuant to Article XII hereof and any
successor Administrative Agent appointed pursuant to Article XII hereof.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the applicable
Borrower of the same Type and, in the case of Eurodollar Rate Advances for the
same Interest Period.
"Affected Lender" is defined in Section 2.19.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10.0%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
1
11
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as may be adjusted from time to time pursuant to the terms hereof.
The Aggregate Commitment as of the Closing Date is Fifty Million and 00/100
Dollars ($50,000,000).
"Agreed Currencies" means (i) Dollars and (ii) any other Eligible
Agreed Currency which the applicable Borrower requests the applicable Issuing
Bank to include as an Agreed Currency hereunder and which is acceptable to such
Issuing Bank and the Administrative Agent. For purposes of this definition,
"Eligible Agreed Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated.
"Agreement" means this 364-Day Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Company referred to in Section 6.4(B) hereof; provided, however, except as
provided in Section 11.9, that with respect to the calculation of financial
ratios and other financial tests required by this Agreement, "Agreement
Accounting Principles" means generally accepted accounting principles as in
effect in the United States as of the date of this Agreement, applied in a
manner consistent with that used in preparing the financial statements of the
Company referred to in Section 6.4(B) hereof.
"Alternate Base Rate" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b)
one-half of one percent (0.5%) per annum.
"Applicable Commitment Fee Percentage" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.14(C)(i) hereof determined in accordance with the
provisions of Section 2.14(D)(ii) hereof.
"Applicable Eurodollar Margin" means, as at any date of determination,
the rate per annum then applicable to Eurodollar Rate Loans determined in
accordance with the provisions of Section 2.14(D)(ii) hereof.
"Applicable Floating Rate Margins" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans,
determined in accordance with the provisions of Section 2.14(D)(ii) hereof.
"Applicable L/C Fee Percentage" means, as at any date of determination,
(x) with respect to Performance Letters of Credit, the rate per annum then
applicable to Performance Letters of Credit, and (y) with respect to Standby
Letters of Credit, the rate per annum then applicable to Standby Letters of
Credit, in each case determined in accordance with the provisions of Section
2.14(D)(ii).
2
12
"Arranger" means Banc One Capital Markets, Inc., in its capacity as the
arranger for the loan transaction evidenced by this Agreement.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction, and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person,
but not the Equity Interests of such Person) to any Person other than the
Company or any of its wholly-owned Subsidiaries other than (i) the sale of
inventory in the ordinary course of business and (ii) the sale or other
disposition of any obsolete equipment disposed of in the ordinary course of
business.
"Assignment Agreement" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to Section 14.3 hereof in
substantially the form of Exhibit D.
"Assumption Letter" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of Exhibit K hereto pursuant
to which such Subsidiary agrees to become a "Subsidiary Borrower" and agrees to
be bound by the terms and conditions hereof.
"Authorized Officer" means the Managing Director of the Company, or
such other Person as authorized by the Managing Director, acting singly;
provided, that the Administrative Agent shall have received a manually signed
certificate of the Secretary of the Company as to the incumbency of, and bearing
a manual specimen signature of, such duly authorized Person.
"Bank One" means Bank One, NA, having its principal office in Chicago,
Illinois, in its individual capacity, and its successors.
"Benefit Plan" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or Foreign Pension Plan) in respect of
which the Company or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"Borrower" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their permitted respective successors and assigns; and
"Borrowers" shall mean, collectively, the Company and the Subsidiary Borrowers.
"Borrowing Date" means a date on which an Advance or Swing Line Loan is
made hereunder.
"Borrowing/Election Notice" is defined in Section 2.7.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate, a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York and on which dealings in Dollars and the other Agreed
Currencies are carried on in the London interbank market (and, if the Letter of
Credit which is the subject of such issuance or payment is
3
13
denominated in euro, a day upon which such clearing system as is determined
by the Administrative Agent to be suitable for clearing or settlement of the
euro is open for business) and (ii) for all other purposes a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York.
"Capital Expenditures" means, for any period, without duplication, any
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and purchase money indebtedness) for any purchase or other
acquisition of any asset which would be classified as a fixed or capital asset
on a consolidated balance sheet of the Company and its Subsidiaries prepared in
accordance with Agreement Accounting Principles excluding (i) expenditures of
insurance proceeds to rebuild or replace any asset after a casualty loss, (ii)
leasehold improvement expenditures for which the Company or a Subsidiary is
reimbursed promptly by the lessor and (iii) up to $6,000,000 of purchases of
equipment in the ordinary course of business to the extent the amount of such
purchases is not in excess of the proceeds of sales during the preceding 12
months of equipment no longer required in connection with existing or completed
projects.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Capitalized Lease" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"Cash Equivalents" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by S&P or A3 (or better) by Moody's, and which certificates of deposit
and time deposits are fully protected against currency fluctuations for any such
deposits with a term of more than ninety (90) days; (iii) shares of money
market, mutual or similar funds having assets in excess of $100,000,000 and the
investments of which are limited to (x) investment grade securities (i.e.,
securities rated at least Baa by Moody's or at least BBB by S&P) and (y)
commercial paper of United States and foreign banks and bank holding companies
and their subsidiaries and United States and foreign finance, commercial
industrial or utility companies which, at the time of acquisition, are rated A-1
(or better) by S&P or P-1 (or better) by Moody's (all such institutions being,
"Qualified
4
14
Institutions"); and (iv) commercial paper of Qualified Institutions; provided
that the maturities of such Cash Equivalents shall not exceed three hundred
sixty-five (365) days from the date of acquisition thereof.
"Change" is defined in Section 4.2.
"Change of Control" means an event or series of events by which:
(i) other than pursuant to the H-B Acquisition and the PDM Acquisition,
any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly
or indirectly, of twenty percent (20%) or more of the voting power of the
then outstanding Capital Stock of the Company entitled to vote generally in
the election of the directors of the Company; or
(ii) the majority of the board of directors of the Company fails to
consist of Continuing Directors;
(iii) except as expressly permitted under the terms of this Agreement,
the Company or any Subsidiary Borrower consolidates with or merges into
another Person or conveys, transfers or leases all or substantially all of
its property to any Person, or any Person consolidates with or merges into
the Company or any Subsidiary Borrower, in either event pursuant to a
transaction in which the outstanding Capital Stock of the Company or such
Subsidiary Borrower, as applicable, is reclassified or changed into or
exchanged for cash, securities or other property; or
(iv) except as otherwise expressly permitted under the terms of this
Agreement, the Company shall cease to own and control all of the economic
and voting rights associated with all of the outstanding Capital Stock of
each of the Subsidiary Guarantors or shall cease to have the power,
directly or indirectly, to elect all of the members of the board of
directors of each of the Subsidiary Guarantors.
"Closing Date" means August 29, 2001.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commission" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"Commitment" means, for each Lender, the obligation of such Lender to
make Revolving Loans and to purchase participations in Letters of Credit and to
participate in Swing Line Loans not exceeding the amount set forth on Exhibit A
to this Agreement opposite its name thereon under the heading "Commitment" or in
the Assignment Agreement by which it became a Lender, as such amount may be
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment Agreement.
5
15
"Company" means Chicago Bridge & Iron Company N.V., a corporation
organized under the laws of The Kingdom of the Netherlands.
"Computation Date" is defined in Section 2.4(B).
"Consolidated Net Worth" means, at a particular date, all amounts which
would be included under shareholders' or members' equity on the consolidated
balance sheet for the Company and its consolidated Subsidiaries plus any
preferred stock of the Company to the extent that it has not been redeemed for
indebtedness, as determined in accordance with Agreement Accounting Principles.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBs"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"Contingent Obligation", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the present value of the portion of the
obligation so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"Continuing Director" means, with respect to any person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date, or (b) was
nominated for election or elected to such board of directors with the approval
of the required majority of the Continuing Directors who were members of such
board at the time of such nomination or election; provided that an individual
who is so elected or nominated in connection with a merger, consolidation,
acquisition or similar transaction shall not be a Continuing Director unless
such individual was a Continuing Director prior thereto.
"Contractual Obligation", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any
6
16
case in writing, to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Controlled Group" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
"Country Risk Event" means:
(i) any law, action or failure to act by any Governmental Authority in
the applicable Borrower's or Letter of Credit beneficiary's country which
has the effect of:
(a) changing the Obligations as originally agreed,
(b) changing the ownership or control by the applicable Borrower
or Letter of Credit beneficiary of its business, or
(c) preventing or restricting the conversion into or transfer of
the applicable Agreed Currency;
(ii) force majeure; and
(iii) any similar event
which, in relation to (i), (ii) and (iii), directly or indirectly, prevents or
restricts the payment or transfer of any amounts owing under the Obligations in
the applicable Agreed Currency into an account designated by the Administrative
Agent or applicable Issuing Bank and freely available to the Administrative
Agent or such Issuing Bank.
"Customary Permitted Liens" means:
(i) Liens (other than Environmental Liens and Liens in favor of the IRS
or the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (if foreclosure,
distraint, sale or other similar proceedings shall not have been commenced
or any such proceeding after being commenced is stayed) which are being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which
7
17
adequate reserves or other appropriate provisions are being maintained in
accordance with Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen, service providers or workmen and other
similar Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and
with respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
or other types of social security benefits or to secure the performance of
bids, tenders, sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; provided that (A) all such
Liens do not in the aggregate materially detract from the value of the
Company's or its Subsidiary's assets or property taken as a whole or
materially impair the use thereof in the operation of the businesses taken
as a whole, and (B) all Liens securing bonds to stay judgments or in
connection with appeals do not secure at any time an aggregate amount
exceeding $5,000,000;
(iv) Liens arising with respect to zoning restrictions, easements,
encroachments, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges, restrictions or
encumbrances on the use of real property which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Company or any
of its respective Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments, writs or
warrants of attachment, or similar process against the Company or any of
its Subsidiaries which do not constitute a Default under Section 8.1(H)
hereof; and
(vi) any interest or title of the lessor in the property subject to any
operating lease entered into by the Company or any of its Subsidiaries in
the ordinary course of business.
"Default" means an event described in Article VIII hereof.
"Designated Lender" means, with respect to each Designating Lender,
each Eligible Designee designated by such Designating Lender pursuant to Section
14.3(D).
"Designating Lender" means, with respect to each Designated
Lender, the Lender that designated such Designated Lender pursuant to Section
14.3(D).
"Designation Agreement" is defined in Section 14.3(D).
"Disclosed Litigation" is defined in Section 6.7.
8
18
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollar" and "$" means dollars in the lawful currency of the United
States of America.
"Dollar Amount" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the equivalent in such
currency of such amount of Dollars if such currency is any currency other than
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such currency on the
London market at 11:00 a.m., London time, on or as of the most recent
Computation Date provided for in Section 2.4(B).
"Domestic Subsidiary" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America and
substantially all of the operations of which are conducted within the United
States.
"EBIT" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, calculated in each case in accordance with Agreement Accounting
Principles, of (i) Net Income, plus (ii) Interest Expense to the extent deducted
in computing Net Income, plus (iii) charges against income for foreign, federal,
state and local taxes to the extent deducted in computing Net Income, plus (iv)
any other non-recurring non-cash charges to the extent deducted in computing Net
Income, minus (v) any non-recurring non-cash credits to the extent added in
computing Net Income, plus (vi) non-recurring after-tax losses (or minus
non-recurring after-tax gains); provided, that for any date of determination
from and after January 1, 2001, the aggregate adjustment pursuant to clauses
(iv) through (vi) of this definition shall not exceed $3,000,000 for the
four-quarter period ending on such date (exclusive of any such adjustments for
periods ending prior to January 1, 2001).
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, calculated in each case in accordance with Agreement Accounting
Principles, of (i) EBIT plus (ii) depreciation expense to the extent deducted in
computing Net Income, plus (iii) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets to the extent
deducted in computing Net Income.
"Eligible Assignee" means a Person that is primarily engaged in the
business of commercial banking and that (A) is an affiliate of a Lender or (B)
shall have senior unsecured long-term debt ratings which are rated at least A-
(or the equivalent) as publicly announced by S&P or A3 (or the equivalent) as
publicly announced by Moody's.
9
19
"Eligible Cash Equivalents" means Cash Equivalents consisting of (i)
marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government, (ii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or
agencies, the long-term indebtedness of which institution at the time of
acquisition is rated A- (or better) by S&P or A3 (or better) by Moody's, and
which certificates of deposit and time deposits are fully protected against
currency fluctuations for any such deposits with a term of more than ninety (90)
days, (iii) commercial paper rated at least A-1 by Standard & Poor's Ratings
Services or P-1 by Moody's Investors Service, Inc. and maturing not more than
thirty (30) days from the date of issuance or (iv) debt securities other than
commercial paper, the issuer of which shall have a senior unsecured long-term
debt rating from Standard & Poor's Ratings Services of at least A and which debt
securities shall mature not more than thirty (30) days from the date of
issuance.
"Eligible Designee" means a special purpose corporation, partnership,
limited partnership or limited liability company that is administered by a
Lender or an Affiliate of a Lender and (i) is organized under the laws of the
United States of America or any state thereof, (ii) is engaged primarily in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or the
equivalent thereof by Moody's.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"Environmental Lien" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock). Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative
10
20
Agent for such other currency at 11:00 a.m., London time, on the date on or as
of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"euro" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of EMU.
"Eurodollar Base Rate" means, with respect to a Eurodollar Rate Advance
for the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in Dollars appearing on Reuters Screen
FRBD as of 11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period,
provided that, (i) if Reuters Screen FRBD is not available to the Administrative
Agent for any reason, the applicable Eurodollar Reference Rate for the relevant
Interest Period shall instead be the applicable British Bankers' Association
Interest Settlement Rate for deposits in Dollars as reported by any other
generally recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available, the applicable
Eurodollar Reference Rate for the relevant Interest Period shall instead be the
rate determined by the Administrative Agent to be the rate at which Bank One
offers to place deposits in Dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, in the approximate amount of
Bank One's relevant Eurodollar Loan and having a maturity equal to such Interest
Period.
"Eurodollar Rate" means, with respect to a Eurodollar Rate Advance for
the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (ii) the then Applicable Eurodollar Margin, changing as and when the
Applicable Eurodollar Margin changes.
"Eurodollar Rate Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Rate Loan" means a Loan made on a fully syndicated basis
pursuant to Section 2.1, which bears interest at a Eurodollar Rate.
"Excluded Foreign Subsidiary" means any Foreign Subsidiary other than
those listed as Foreign Subsidiaries on Schedule 1.1.5.
"Extension Request" is defined in Section 2.22.
"Facility Termination Date" shall mean the date on which all of the
Termination Conditions have been satisfied.
11
21
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Officer" means any of the chief financial officer, principal
accounting officer, treasurer or controller of the Company, acting singly.
"Financing" means, with respect to any Person, the issuance or sale by
such Person of any Disqualified Stock, Equity Interests of such Person or any
Indebtedness consisting of debt securities of such Person.
"Fixed Charge Coverage Ratio" is defined in Section 7.4(B).
"Floating Rate" means, for any day for any Loan, a rate per annum equal
to the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes, plus the then Applicable Floating Rate Margin.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"Foreign Employee Benefit Plan" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Company, any of its respective Subsidiaries or
any members of its Controlled Group and is not covered by ERISA pursuant to
ERISA Section 4(b)(4).
"Foreign Pension Plan" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Company or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Company, any of its respective
Subsidiaries or any member of its Controlled Group, (ii) is not covered by ERISA
pursuant to Section 4(b)(4) of ERISA, and (iii) under applicable local law, is
required to be funded through a trust or other funding vehicle.
"Foreign Subsidiary" means a Subsidiary of the Company which is not a
Domestic Subsidiary.
"4-Year Credit Agreement" means that certain Amended and Restated
Credit Agreement dated as of the Closing Date among the Company, the subsidiary
borrowers from time to time parties thereto, the lenders from time to time
parties thereto, and Bank One, as the administrative agent thereunder, as the
same may be amended, restated, supplemented or otherwise modified and as in
effect from time to time.
12
22
"Governmental Acts" is defined in Section 3.10(A).
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
authority or functions of or pertaining to government, including any authority
or other quasi-governmental entity established to perform any of such functions.
"Gross Negligence" means recklessness, or actions taken or
omitted with conscious indifference to or the complete disregard of consequences
or rights of others affected. Gross Negligence does not mean the absence of
ordinary care or diligence, or an inadvertent act or inadvertent failure to act.
If the term "gross negligence" is used with respect to the Administrative Agent
or any Lender or any indemnitee in any of the other Loan Documents, it shall
have the meaning set forth herein.
"Guaranteed Obligations" is defined in Section 10.1.
"Guarantor(s)" shall mean the Company and the Subsidiary
Guarantors.
"Guaranty" means each of (i) the guaranty by the Company and
each Subsidiary Borrower of all of the Obligations of Company and the Subsidiary
Borrowers pursuant to this Agreement and (ii) the Subsidiary Guaranty, in each
case, as amended, restated, supplemented or otherwise modified from time to
time.
"H-B Acquisition" means the acquisition by the Company of all
of the issued and outstanding Capital Stock of Howe-Baker for consideration
including (i) a cash purchase price of up to $28,000,000, (ii) assumed
indebtedness of up to $5,700,000, (iii) the issuance of 8,100,000 shares of
Capital Stock of the Company, and otherwise on terms consistent in all material
respects with the terms disclosed to the Administrative Agent and set forth in
the H-B Acquisition Agreement.
"H-B Acquisition Agreement" means that certain Purchase
Agreement, dated as of July 30, 2000, by and between WEDGE Group Incorporated, a
Delaware corporation, and WGI Tyler, Inc. a Delaware corporation, collectively
as the seller, and the Company and CB&I Tyler Company, a Delaware corporation,
collectively as the buyer, as delivered to the Administrative Agent on November
16, 2000.
"Hedging Arrangements" is defined in the definition of Hedging
Obligations below.
"Hedging Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i) any
and all agreements, devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection
13
23
agreements, forward rate currency or interest rate options, puts and warrants or
any similar derivative transactions ("Hedging Arrangements"), and (ii) any and
all cancellations, buy backs, reversals, terminations or assignments of any of
the foregoing.
"Howe-Baker" means Howe-Baker International, Inc., a Delaware
corporation.
"Incentive Arrangements" means any stock ownership, restricted
stock, stock option, stock appreciation rights, "phantom" stock plans,
employment agreements, non-competition agreements, subscription and stockholders
agreements and other incentive and bonus plans and similar arrangements made in
connection with the retention of executives, officers or employees of the
Company and its Subsidiaries.
"Indebtedness" of a Person means, without duplication, such
Person's (a) obligations for borrowed money (including, without limitation,
subordinated indebtedness and all assumed indebtedness of the Company evidenced
by the $5,700,000 term indebtedness issued by Howe-Baker in favor of Air
Liquide), (b) obligations representing the deferred purchase price of property
or services (other than (i) accounts payable arising in the ordinary course of
such Person's business payable on terms customary in the trade, and (ii)
earnouts or other similar forms of contingent purchase prices), (c) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from property or assets now or hereafter owned or acquired by such
Person, (d) obligations which are evidenced by notes, acceptances, other
instruments, standby letters of credit or standby letter of credit reimbursement
arrangements, (e) Capitalized Lease Obligations, (f) Contingent Obligations, (g)
obligations with respect to letters of credit, (h) Off-Balance Sheet Liabilities
and (j) Disqualified Stock.
"Indebtedness for Borrowed Money" means, without duplication,
the sum of (x) Indebtedness of the Company and its Subsidiaries described in
clauses (a) of the definition of "Indebtedness", plus (y) standby letters of
credit, and reimbursement agreements in respect of standby letters of credit,
issued for the account of the Company or any of its Subsidiaries to support
Indebtedness of any Person (other than the Company or any of its Subsidiaries),
plus (z) all Disqualified Stock.
"Indemnified Matters" is defined in Section 11.7(B).
"Indemnitees" is defined in Section 11.7(B).
"Interest Expense" means, for any period, the total gross
interest expense of the Company and its consolidated Subsidiaries, whether paid
or accrued, including, without duplication, the interest component of
Capitalized Leases, commitment and letter of credit fees, the discount or
implied interest component of Off-Balance Sheet Liabilities, capitalized
interest expense, pay-in-kind interest expense, amortization of debt documents
and net payments (if any) pursuant to Hedging Arrangements relating to interest
rate protection, all as determined in conformity with Agreement Accounting
Principles.
"Interest Expense Coverage Ratio" is defined in Section
7.4(C).
"Interest Period" means with respect to a Eurodollar Rate
Loan, a period of one (1), two (2), three (3) months or six (6) months,
commencing on a Business Day selected by the
14
24
applicable Borrower on which a Eurodollar Rate Advance is made to such Borrower
pursuant to this Agreement. Such Interest Period shall end on (but exclude) the
day which corresponds numerically to such date one, two, three or six months
thereafter; provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" means, with respect to any Person, (i) any
purchase or other acquisition by that Person of any Indebtedness, Equity
Interests or other securities, or of a beneficial interest in any Indebtedness,
Equity Interests or other securities, issued by any other Person, (ii) any
purchase by that Person of all or substantially all of the assets of a business
(whether of a division, branch, unit operation, or otherwise) conducted by
another Person; (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business; and
(iv) any non-arms length transaction by such Person with another Person or any
other transfer of assets by such Person in another Person, with the amount of
such Investment being an amount equal to the net benefit derived by such other
Person resulting from any such transactions.
"IRS" means the Internal Revenue Service and any Person
succeeding to the functions thereof.
"Issuing Banks" means Bank One or any of its Affiliates or any
of the other Lenders in its separate capacity as an issuer of Letters of Credit
pursuant to Section 3.1. The designation of any Lender as an Issuing Bank after
the Closing Date shall be subject to the prior written consent of the
Administrative Agent.
"L/C Documents" is defined in Section 3.4.
"L/C Draft" means a draft drawn on an Issuing Bank pursuant to
a Letter of Credit.
"L/C Interest" is defined in Section 3.6.
"L/C Obligations" means, without duplication, an amount equal
to the sum of (i) the aggregate of the Dollar Amount then available for drawing
under each of the Letters of Credit, (ii) the Dollar Amount equal to the stated
amount of all outstanding L/C Drafts corresponding to the Letters of Credit,
which L/C Drafts have been accepted by the applicable Issuing Bank, (iii) the
aggregate outstanding Dollar Amount of all Reimbursement Obligations at such
time and (iv) the aggregate Dollar Amount equal to the stated amount of all
Letters of Credit requested by the Borrowers but not yet issued (unless the
request for an unissued Letter of Credit has been denied).
15
25
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent listed on the signature pages of this Agreement for
such Lender, or on the administrative information sheets provided to the
Administrative Agent in connection herewith or otherwise selected by such Lender
or the Administrative Agent pursuant to Section 2.16.
"Letter of Credit" means the performance letters of credit and
standby letters of credit to be (a) issued by the Issuing Banks pursuant to
Section 3.1 hereof or (b) deemed issued by the Issuing Banks pursuant to Section
3.2 hereof.
"Leverage Ratio" is defined in Section 7.4(A).
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan Account" is defined in Section 2.12(A).
"Loan Documents" means this Agreement, each Assumption Letter
executed hereunder, the Subsidiary Guaranty and all other documents,
instruments, notes and agreements executed in connection therewith or
contemplated thereby, as the same may be amended, restated or otherwise modified
and in effect from time to time.
"Loan Parties" means, at any time, the Company, each
Subsidiary Borrower that is a party hereto as of such time and each of the
Guarantors.
"Loan(s)" means, with respect to a Lender, such Lender's
portion of any Advance made pursuant to Section 2.1 hereof, and in the case of
the Swing Line Bank, any Swing Line Loan made pursuant to Section 2.2 hereof,
and collectively all Revolving Loans and Swing Line Loans, whether made or
continued as or converted to Floating Rate Loans or Eurodollar Rate Loans.
"Margin Stock" shall have the meaning ascribed to such term in
Regulation U.
"Market Disruption" is defined in Section 2.11.
"Material Adverse Effect" means a material adverse effect upon
(a) the business, condition (financial or otherwise), operations, performance,
properties, results of operations or prospects of the Company, any other
Borrower, or the Company and its Subsidiaries, taken as a whole, (b) the
collective ability of the Company or any of its Subsidiaries to perform their
respective obligations under the Loan Documents, or (c) the ability of the
Lenders or the Administrative Agent to enforce the Obligations.
16
26
"Material Subsidiary" means, without duplication, (a) each
Borrowing Subsidiary and (b) any Subsidiary that directly or indirectly owns or
Controls any Borrowing Subsidiary or other Material Subsidiary and (c) any other
Subsidiary (i) the consolidated net revenues of which for the most recent fiscal
year of the Company for which audited financial statements have been delivered
pursuant to Section 7.01(A)(ii) were greater than three percent 3% of the
Company's consolidated net revenues for such fiscal year or (ii) the
consolidated tangible assets of which as of the end of such fiscal year were
greater than three percent 3% of the Company's consolidated tangible assets as
of such date; provided that, if at any time the aggregate amount of the
consolidated net revenues or consolidated tangible assets of all Subsidiaries
that are not Material Subsidiaries exceeds ten percent 10% of the Company's
consolidated net revenues for any such fiscal year or ten percent 10% of the
Company's consolidated tangible assets as of the end of any such fiscal year,
the Company (or, in the event the Company has failed to do so within 10 days,
the Administrative Agent) shall designate sufficient Subsidiaries as "Material
Subsidiaries" to eliminate such excess, and such designated Subsidiaries shall
for all purposes of this Agreement constitute Material Subsidiaries. For
purposes of making the determinations required by this definition, revenues and
assets of Foreign Subsidiaries shall be converted into Dollars at the rates used
in preparing the consolidated balance sheet of the Company included in the
applicable financial statements. The Material Subsidiaries on the Closing Date
are identified in Schedule 1.1.5 hereto.
"Material Indebtedness" is defined in Section 8.1(E).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "Multiemployer Plan" as defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Company or any member of the
Controlled Group.
"National Currency Unit" means the unit of currency (other
than a euro unit) of each member state of the European Union that participates
in the third stage of EMU.
"Net Cash Proceeds" means, with respect to any Asset Sale,
Sale and Leaseback Transaction or Financing by any Person, (a) cash or Cash
Equivalents (freely convertible into Dollars) received by such Person or any
Subsidiary of such Person from such Asset Sale or Sale and Leaseback Transaction
(including cash received as consideration for the assumption or incurrence of
liabilities incurred in connection with or in anticipation of such Asset Sale or
Sale and Leaseback Transaction) or Financing, after (i) provision for all income
or other taxes measured by or resulting from such Asset Sale, Sale and Leaseback
Transaction or Financing, (ii) payment of all brokerage commissions and other
fees and expenses and commissions related to such Asset Sale, Sale and Leaseback
Transaction or Financing, and (iii) all amounts used to repay Indebtedness (and
any premium or penalty thereon) secured by a Lien on any asset disposed of in
such Asset Sale or Sale and Leaseback Transaction or which is or may be required
(by the express terms of the instrument governing such Indebtedness or by
applicable law) to be repaid in connection with such Asset Sale or Sale and
Leaseback Transaction (including payments made to obtain or avoid the need for
the consent of any holder of such Indebtedness); and (b) cash or Cash
Equivalents payments in respect of any other consideration received by
17
27
such Person or any Subsidiary of such Person from such Asset Sale, Sale and
Leaseback Transaction or Financing upon receipt of such cash payments by such
Person or such Subsidiary.
"Net Income" means, for any period, the net earnings (or loss)
after taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"New Money Credit Event" means, with respect to any Issuing
Bank, any increase (directly or indirectly) in such Issuing Bank's exposure
(whether by way of additional credit or banking facilities or otherwise,
including as part of a restructuring) to the applicable Borrower, any
Governmental Authority in such Borrower's or any applicable Letter of Credit
beneficiary's country occurring by reason of (i) any law, action or requirement
of any Governmental Authority in such Borrower's or such Letter of Credit
beneficiary's country, or (ii) any request in respect of external indebtedness
of borrowers in such Borrowers or such Letter of Credit beneficiary's country
applicable to banks generally which conduct business with such borrowers, or
(iii) any agreement in relation to clause (i) or (ii), in each case to the
extent calculated by reference to the Obligations outstanding prior to such
increase.
"Notice of Assignment" is defined in Section 14.3(B).
"Obligations" means all Loans, L/C Obligations, advances,
debts, liabilities, obligations, covenants and duties owing, the Borrowers or
any of their Subsidiaries to the Administrative Agent, any Lender, the Swing
Line Bank, the Arranger, any Affiliate of the Administrative Agent or any
Lender, any Issuing Bank, any Indemnitee, of any kind or nature, present or
future, arising under this Agreement, the L/C Documents or any other Loan
Document, whether or not evidenced by any note, guaranty or other instrument,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, foreign exchange risk, guaranty, indemnification, or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, attorneys' fees and disbursements,
paralegals' fees (in each case whether or not allowed), and any other sum
chargeable to the Company or any of its Subsidiaries under this Agreement or any
other Loan Document.
"Off-Balance Sheet Liabilities" of a Person means (a) any
repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to Receivables sold by such Person or any of its Subsidiaries, (b)
any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated
balance sheet of such Person, (c) any liability of such Person or any of its
Subsidiaries under any financing lease or so-called "synthetic lease" or "tax
ownership operating lease" transaction, or (d) any obligations of such Person or
any of its Subsidiaries arising with respect to any other transaction which is
the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person and its
Subsidiaries.
"Other Taxes" is defined in Section 2.14(E)(ii).
"Participants" is defined in Section 14.2(A).
18
28
"Payment Date" means the last Business Day of each quarter,
the Termination Date and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, 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 Acquisition" is defined in Section 7.3(F).
"Permitted Existing Contingent Obligations" means the
Contingent Obligations of the Company and its Subsidiaries identified as such on
Schedule 1.1.4 to this Agreement.
"Permitted Existing Indebtedness" means the Indebtedness of
the Company and its Subsidiaries identified as such on Schedule 1.1.1 to this
Agreement.
"Permitted Existing Investments" means the Investments of the
Company and its Subsidiaries identified as such on Schedule 1.1.2 to this
Agreement.
"Permitted Existing Liens" means the Liens on assets of the
Company and its Subsidiaries identified as such on Schedule 1.1.3 to this
Agreement.
"Permitted Sale and Leaseback Transactions" means (i) any Sale
and Leaseback Transaction of the Company's Plainfield, Illinois headquarters
facility, and (ii) any Sale and Leaseback Transaction of all or any portion of
the Company's equipment fleet, in each case on terms acceptable to the
Administrative Agent and only to the extent that the aggregate amount of Net
Cash Proceeds from all such Permitted Sale and Leaseback Transactions is less
than or equal to $35,000,000.
"Person" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PDM Acquisition" means the acquisition by the Company of
substantially all of the assets comprising the water and engineered construction
divisions of Pitt-Des Moines, Inc. for consideration including (i) a cash
purchase price of up to $40,000,000 and (ii) the issuance of 2,848,172 shares of
Capital Stock of the Company, and otherwise on terms consistent in all material
respects with the terms disclosed to the Administrative Agent and set forth in
the PDM Acquisition Agreement.
"PDM Acquisition Agreement" means that certain Asset Purchase
Agreement, dated as of February 7, 2001, by and between Pitt-Des Moines, Inc., a
Pennsylvania corporation, as the seller, and the Company and CB&I Constructors,
Inc., as the buyers, as delivered to the Administrative Agent on February 5,
2001.
19
29
"Plan" means an employee benefit plan defined in Section 3(3)
of ERISA, other than a Multiemployer Plan, in respect of which the Company or
any member of the Controlled Group is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the prime rate of interest announced by
Bank One, NA or its parent from time to time (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate
changes.
"Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (A) the Lender's Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions of
this Agreement) by (B) the Aggregate Commitment at such time; provided, however,
if the Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Share" means the percentage obtained by dividing (x) the sum of (A)
such Lender's Revolving Loans, plus (B) such Lender's share of the obligations
to purchase participations in Swing Line Loans and Letters of Credit, by (y) the
sum of (A) the aggregate outstanding amount of Revolving Loans, plus (B) the
aggregate outstanding amount of all Swing Line Loans and the Dollar Amount of
all Letters of Credit.
"Purchasers" is defined in Section 14.3(A)(i).
"Rate Option" means the Eurodollar Rate or the Floating Rate,
as applicable.
"Receivable(s)" means and includes all of the Company's and
its consolidated Subsidiaries' presently existing and hereafter arising or
acquired accounts, accounts receivable, and all present and future rights of the
Company or its Subsidiaries, as applicable, to payment for goods sold or leased
or for services rendered (except those evidenced by instruments or chattel
paper), whether or not they have been earned by performance, and all rights in
any merchandise or goods which any of the same may represent, and all rights,
title, security and guaranties with respect to each of the foregoing, including,
without limitation, any right of stoppage in transit.
"Register" is defined in Section 14.3(C).
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by and to brokers and dealers of securities for the
purpose of purchasing or carrying margin stock (as defined therein).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks, non-banks and non-broker lenders for the
purpose of purchasing or carrying Margin Stock applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by foreign lenders for the purpose of purchasing or
carrying margin stock (as defined therein).
20
30
"Reimbursement Obligation" is defined in Section 3.7.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including the movement of
Contaminants through or in the air, soil, surface water or groundwater.
"Rentals" means the aggregate fixed amounts payable by the
Company and its Subsidiaries on a consolidated basis under any lease of real or
personal property having an original term (including any required renewals or
any renewals at the option of the lessor or lessee) of one year or more, but
does not include any amounts payable under Capitalized Leases.
"Replacement Lender" is defined in Section 2.19.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such section, with
respect to a Plan, excluding, however, such events as to which the PBGC by
regulation or otherwise waived the requirement of Section 4043(a) of ERISA that
it be notified within thirty (30) days after such event occurs, provided,
however, that a failure to meet the minimum funding standards of Section 412 of
the Code and of Section 302 of ERISA shall be a Reportable Event regardless of
the issuance of any such waiver of the notice requirement in accordance with
either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty-one percent (51%); provided, however, that, if
any of the Lenders shall have failed to fund its Pro Rata Share of (i) any
Revolving Loan requested by the applicable Borrower, (ii) any Revolving Loan
required to be made in connection with reimbursement for any L/C Obligations,
(iii) any participation in any Swing Line Loan as requested by the
Administrative Agent, which such Lenders are obligated to fund under the terms
of this Agreement and any such failure has not been cured, then for so long as
such failure continues, "Required Lenders" means Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of such Revolving Loans
or any participation in Swing Line Loans has not been so cured) whose Pro Rata
Shares represent greater than fifty-one percent (51%) of the aggregate Pro Rata
Shares of such Lenders; provided further, however, that, if the Commitments have
been terminated pursuant to the terms of this Agreement, "Required Lenders"
means Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans and L/C Obligations
are greater than fifty-one percent (51%).
"Requirements of Law" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use
21
31
requirement or permit or environmental, labor, employment, occupational safety
or health law, rule or regulation, including Environmental, Health or Safety
Requirements of Law.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurodollar liabilities.
"Response Date" is defined in Section 2.22.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any Equity Interests of the
Company or any of its Subsidiaries now or hereafter outstanding, except a
dividend payable solely in such Person's Capital Stock (other than Disqualified
Stock) or in options, warrants or other rights to purchase such Capital Stock,
(ii) any redemption, retirement, purchase or other acquisition for value, direct
or indirect, of any Equity Interests of the Company or any of its Subsidiaries
now or hereafter outstanding, other than in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a Subsidiary of the
Company) of other Equity Interests of the Company or any of its Subsidiaries
(other than Disqualified Stock), (iii) any payment or prepayment of principal
of, or interest (whether in cash or as payment-in-kind), premium, if any, fees
or other charges with respect to, any Indebtedness subordinated to the
Obligations, or any redemption, purchase, retirement, defeasance, prepayment or
other acquisition for value, direct or indirect, of any Indebtedness other than
(a) the Obligations and (b) any scheduled payments of principal of or interest
with respect to Company's Indebtedness issued pursuant to that certain Note
Purchase Agreement, dated as of July 1, 2001 among the Company and the
purchasers parties thereto, and (iv) any payment of a claim for the rescission
of the purchase or sale of, or for material damages arising from the purchase or
sale of, any Indebtedness (other than the Obligations) or any Equity Interests
of the Company or any of its Subsidiaries, or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission, (v) any payment of management, consulting or investment
banking fees (or other fees of a similar nature) and (vi) any payment in respect
of a purchase price adjustment, earn-out or other similar form of contingent
purchase price.
"Revolving Credit Availability" means, at any particular time,
the amount by which the Aggregate Commitment at such time exceeds the Revolving
Credit Obligations outstanding at such time.
"Revolving Credit Obligations" means, at any particular time,
the sum of (i) the outstanding principal amount of the Revolving Loans at such
time, plus (ii) the outstanding principal amount of the Swing Line Loans at such
time, plus (iii) the outstanding L/C Obligations at such time.
"Revolving Loan" is defined in Section 2.1.
"Risk-Based Capital Guidelines" is defined in Section 4.2.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
22
32
"Sale and Leaseback Transaction" means any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (i) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Single Employer Plan" means a Plan maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the total
amount of its liabilities, including, without limitation, contingent
liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"Standby Letter of Credit" means any Letter of Credit other
than a Performance Letter of Credit.
"Subsidiary" of a Person means (i) any corporation more than
fifty percent (50%) of the outstanding securities having ordinary voting power
of which shall at the time be owned or controlled, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" means a Subsidiary of the
Company.
"Subsidiary Borrower" means any Subsidiaries of the Company
duly designated by the Company pursuant to Section 2.20 to request Advances
hereunder, which Subsidiary shall have delivered to the Administrative Agent an
Assumption Letter in accordance with Section 2.20 and such other documents as
may be required pursuant to this Agreement, in each case together with its
respective successors and assigns, including a debtor-in-possession on behalf of
such Subsidiary Borrower.
23
33
"Subsidiary Guarantor(s)" means (a) each Subsidiary Borrower,
(b) all of the Company's Material Subsidiaries (other than any Excluded Foreign
Subsidiary); (c) all New Subsidiaries which are Material Subsidiaries and which
have or are required to have satisfied the provisions of Section 7.2(K)(i); (d)
all of the Company's Subsidiaries which become Material Subsidiaries and which
have satisfied or are required to have satisfied the provisions of Section
7.2(K)(ii); and (e) all other Subsidiaries which become Subsidiary Guarantors in
satisfaction of the provisions of Section 7.2(K)(iii) or Section 7.3(Q), in each
case with respect to clauses (a) through (e) above, and together with their
respective successors and assigns.
"Subsidiary Guaranty" means that certain Amended and Restated
Subsidiary Guaranty, dated as of the Closing Date executed by each of Subsidiary
Guarantors as of such date (and any and all supplements thereto executed from
time to time by each additional Subsidiary Guarantor) in favor of the
Administrative Agent in substantially the form of Exhibit I attached hereto, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"Substantial Portion" means, with respect to the assets of the
Company and its Subsidiaries, assets which (i) represent more than 10% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Company and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Swing Line Bank" means Bank One or any other Lender as a
successor Swing Line Bank pursuant to the terms hereof.
"Swing Line Commitment" means the commitment of the Swing Line
Bank to make Swing Line Loans hereunder. For purposes of this Agreement, the
Swing Line Commitment shall be equal to zero.
"Swing Line Loan" means a Loan made available to the
applicable Borrower by the Swing Line Bank pursuant to Section 2.2 hereof.
"Taxes" is defined in Section 2.14(E)(i).
"Termination Conditions" is defined in Section 2.18.
"Termination Date" means the earlier of (a) August 27, 2002,
or any later date as may be specified as the Termination Date in accordance with
Section 2.22, and (b) the date of termination in whole of the Aggregate
Commitment pursuant to Section 2.5 hereof or the Commitments pursuant to Section
9.1 hereof.
"Termination Event" means (i) a Reportable Event with respect
to any Benefit Plan; (ii) the withdrawal of the Company or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Company or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan
24
34
participants who are employees of the Company or any member of the Controlled
Group; (iii) the imposition of an obligation on the Company or any member of the
Controlled Group under Section 4041 of ERISA to provide affected parties written
notice of intent to terminate a Benefit Plan in a distress termination described
in Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan; (vi) that a foreign governmental authority shall
appoint or institute proceedings to appoint a trustee to administer any Foreign
Pension Plan in place of the existing administrator, or (vii) the partial or
complete withdrawal of the Company or any member of the Controlled Group from a
Multiemployer Plan or Foreign Pension Plan.
"Transaction Documents" means the Loan Documents and, from and
after the consummation of the H-B Acquisition, the documents executed and
delivered by the Company or any of its Subsidiaries in connection with the H-B
Acquisition, including, without limitation, the H-B Acquisition Agreement, and,
from and after the consummation of the PDM Acquisition, the documents executed
and delivered by the Company or any of its Subsidiaries in connection with the
PDM Acquisition, including, without limitation, the PDM Acquisition Agreement.
"Transferee" is defined in Section 14.5.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992 and came into force on
November 1, 1993), as amended from time to time.
"Type" means, with respect to any Loan, its nature as a
Floating Rate Loan or a Eurodollar Rate Loan.
"Unfunded Liabilities" means (i) in the case of Single
Employer Plans, the amount (if any) by which the aggregate accumulated benefit
obligations exceeds the aggregate fair market value of assets of present value
of all vested nonforfeitable benefits under all Single Employer Plans as of the
most recent measurement date, all as determined under FAS 87 using the methods
and assumptions used by the Company for financial accounting purposes, and (ii)
in the case of Multiemployer Plans, the withdrawal liability that would be
incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"Unmatured Default" means an event which, but for the lapse of
time or the giving of notice, or both, would constitute a Default.
1.2. Singular/Plural References; Accounting Terms. The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. Any accounting terms used in this Agreement
which are not specifically defined herein shall have the meanings customarily
given them in accordance with Agreement Accounting Principles.
1.3. References. Any references to the Company's Subsidiaries
shall not in any way be construed as consent by the Administrative Agent or any
Lender to the
25
35
establishment, maintenance or acquisition of any Subsidiary, except as may
otherwise be permitted hereunder.
1.4. Supplemental Disclosure. At any time at the request of
the Administrative Agent and at such additional times as the Company determines,
the Company shall supplement each schedule or representation herein or in the
other Loan Documents with respect to any matter hereafter arising which, if
existing or occurring at the date of this Agreement, would have been required to
be set forth or described in such schedule or as an exception to such
representation or which is necessary to correct any information in such schedule
or representation which has been rendered inaccurate thereby. Notwithstanding
that any such supplement to such schedule or representation may disclose the
existence or occurrence of events, facts or circumstances which are either
prohibited by the terms of this Agreement or any other Loan Documents or which
result in the breach of any representation or warranty, such supplement to such
schedule or representation shall not be deemed either an amendment thereof or a
waiver of such breach unless expressly consented to in writing by Administrative
Agent and the Required Lenders, and no such amendments, except as the same may
be consented to in a writing which expressly includes a waiver, shall be or be
deemed a waiver by the Administrative Agent or any Lender of any Default
disclosed therein. Any items disclosed in any such supplemental disclosures
shall be included in the calculation of any limits, baskets or similar
restrictions contained in this Agreement or any of the other Loan Documents.
ARTICLE II: REVOLVING LOAN FACILITY
2.1. Revolving Loans.
(A) Amount of Revolving Loans. Upon the satisfaction of the
conditions precedent set forth in Sections 5.1, 5.2 and 5.3, as
applicable, from and including the Closing Date and prior to the
Termination Date, each Lender severally and not jointly agrees, on the
terms and conditions set forth in this Agreement, to make revolving
loans to the Borrowers from time to time, in Dollars, in an amount not
to exceed such Lender's Pro Rata Share of Revolving Credit Availability
at such time (each individually, a "Revolving Loan" and, collectively,
the "Revolving Loans"); provided however, at no time shall the amount
of the Revolving Credit Obligations exceed the Aggregate Commitment.
Subject to the terms of this Agreement, the Borrowers may borrow, repay
and reborrow Revolving Loans at any time prior to the Termination Date.
The Revolving Loans made on the Closing Date or on or before the third
(3rd) Business Day thereafter shall initially be Floating Rate Loans
and thereafter may be continued as Floating Rate Loans or converted
into Eurodollar Rate Loans in the manner provided in Section 2.9 and
subject to the other conditions and limitations therein set forth and
set forth in this Article II and set forth in the definition of
Interest Period. Revolving Loans made after the third (3rd) Business
Day after the Closing Date shall be, at the option of the applicable
Borrower, either Floating Rate Loans or Eurodollar Rate Loans selected
in accordance with Section 2.9. On the Termination Date, each of the
Borrowers shall repay in full the outstanding principal balance of the
Revolving Loans made to it. Each Advance under this Section 2.1 shall
consist of Revolving Loans made by each Lender ratably in proportion to
such Lender's respective Pro Rata Share.
26
36
(B) Borrowing/Election Notice. The applicable Borrower shall
deliver to the Administrative Agent a Borrowing/Election Notice, signed
by it, in accordance with the terms of Section 2.7.
(C) Making of Revolving Loans. Promptly after receipt of the
Borrowing/Election Notice under Section 2.7 in respect of Revolving
Loans, the Administrative Agent shall notify each Lender by telecopy,
or other similar form of transmission, of the requested Revolving Loan.
Each Lender shall make available its Revolving Loan in accordance with
the terms of Section 2.6. The Administrative Agent will promptly make
the funds so received from the Lenders available to the applicable
Borrower at the Administrative Agent's office in Chicago, Illinois on
the applicable Borrowing Date and shall disburse such proceeds in
accordance with the applicable Borrower's disbursement instructions set
forth in such Borrowing/Election Notice. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Revolving Loan on such Borrowing
Date.
2.2. Swing Line Loans.
(A) Amount of Swing Line Loans. On the terms and conditions
set forth in this Agreement and upon the satisfaction of the conditions
precedent set forth in Section 5.1, 5.2 and 5.3, as applicable, from
and including the Closing Date and prior to the Termination Date, the
Swing Line Bank agrees to make swing line loans to the Borrowers from
time to time, in Dollars, in an amount not to exceed the Swing Line
Commitment (each, individually, a "Swing Line Loan" and collectively,
the "Swing Line Loans"); provided, however, at no time shall the amount
of the Revolving Credit Obligations exceed the Aggregate Commitment;
and provided, further, that at no time shall the sum of (a) the Swing
Line Bank's Pro Rata Share of the Swing Line Loans, plus (b) the
outstanding amount of Revolving Loans made by the Swing Line Bank
pursuant to Section 2.1, plus (c) the Swing Line Bank's share of the
obligations to purchase participations in Letters of Credit, exceed the
Swing Line Bank's Commitment at such time. Subject to the terms of this
Agreement, the Borrowers may borrow, repay and reborrow Swing Line
Loans at any time prior to the Termination Date.
(B) Borrowing/Election Notice. The applicable Borrower shall
deliver to the Administrative Agent and the Swing Line Bank a
Borrowing/Election Notice, signed by it, not later than 12:00 p.m.
(Chicago time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall be a
Business Day and which may be the same date as the date the
Borrowing/Election Notice is given), and (ii) the aggregate amount of
the requested Swing Line Loan which shall be an amount not less than
$100,000 (and increments of $100,000 if in excess thereof).
(C) Making of Swing Line Loans. Promptly after receipt of the
Borrowing/Election Notice under Section 2.2(B) in respect of Swing Line
Loans the Administrative Agent shall notify each Lender by telex or
telecopy, or other similar form of transmission, of the requested Swing
Line Loan. Not later than 4:00 p.m. (Chicago time) on the applicable
Borrowing Date, the Swing Line Bank shall make available its
27
37
Swing Line Loan, in funds immediately available in Chicago to the
Administrative Agent at its address specified pursuant to Article XV.
The Administrative Agent will promptly make the funds so received from
the Swing Line Bank available to the applicable Borrower on the
Borrowing Date at the Administrative Agent's aforesaid address. The
Swing Line Loans shall be Floating Rate Loans unless the applicable
Borrower and the Swing Line Bank agree otherwise.
(D) Repayment of Swing Line Loans. Each Swing Line Loan shall
be paid in full by the applicable Borrower on or before the fifth (5th)
Business Day after the Borrowing Date for such Swing Line Loan. The
applicable Borrower may at any time pay, without penalty or premium,
all outstanding Swing Line Loans or, in a minimum amount of $100,000
and increments of $100,000 in excess thereof, any portion of the
outstanding Swing Line Loans, upon notice to the Administrative Agent
and the Swing Line Bank. In addition, the Administrative Agent (i) may
at any time in the sole discretion of the Swing Line Bank with respect
to any outstanding Swing Line Loan, or (ii) shall on the fifth (5th)
Business Day after the Borrowing Date of any Swing Line Loan, require
each Lender (including the Swing Line Bank) to make a Revolving Loan in
the amount of such Lender's Pro Rata Share of such Swing Line Loan, for
the purpose of repaying such Swing Line Loan. Not later than 2:00 p.m.
(Chicago time) on the date of any notice received pursuant to this
Section 2.2(D), each Lender shall make available its required Revolving
Loan or Revolving Loans, in funds immediately available in Chicago to
the Administrative Agent at its address specified pursuant to Article
XV. Revolving Loans made pursuant to this Section 2.2(D) shall
initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Rate Loans in the
manner provided in Section 2.9 and subject to the other conditions and
limitations therein set forth and set forth in this Article II. Unless
a Lender shall have notified the Swing Line Bank, prior to its making
any Swing Line Loan, that any applicable condition precedent set forth
in Sections 5.1, 5.2 and 5.3, as applicable, had not then been
satisfied, such Lender's obligation to make Revolving Loans pursuant to
this Section 2.2(D) to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the Administrative Agent, the Swing Line Bank or any other
Person, (b) the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or
otherwise) of the Company, or (d) any other circumstances, happening or
event whatsoever. In the event that any Lender fails to make payment to
the Administrative Agent of any amount due under this Section 2.2(D),
the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to
such Lender hereunder until the Administrative Agent receives such
payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender
fails to make payment to the Administrative Agent of any amount due
under this Section 2.2(D), such Lender shall be deemed, at the option
of the Administrative Agent, to have unconditionally and irrevocably
purchased from the Swing Line Bank, without recourse or warranty, an
undivided interest and participation in the applicable Swing Line Loan
in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective
28
38
Rate for each day during the period commencing on the date of demand
and ending on the date such amount is received. On the Termination
Date, each of the Borrowers shall repay in full the outstanding
principal balance of all Swing Line Loans made to it.
2.3. Rate Options for all Advances; Maximum Interest Periods.
The Swing Line Loans shall be Floating Rate Loans unless the applicable
Borrower and the Swing Line Bank agree otherwise. The Revolving Loans
may be Floating Rate Advances or Eurodollar Rate Advances, or a
combination thereof, selected by the applicable Borrowers in accordance
with Section 2.9. The Borrowers may select, in accordance with Section
2.9, Rate Options and Interest Periods applicable to portions of the
Revolving Loans; provided that there shall be no more than seven (7)
Interest Periods in effect with respect to all of the Loans at any
time.
2.4. Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrowers may from time to time and
at any time upon at least one (1) Business Day's prior written notice
repay or prepay, without penalty or premium all or any part of
outstanding Floating Rate Advances in an aggregate minimum amount of
Four Million Dollars ($4,000,000) and in integral multiples of One
Million Dollars ($1,000,000) in excess thereof. Eurodollar Rate
Advances may be voluntarily repaid or prepaid prior to the last day of
the applicable Interest Period, subject to the indemnification
provisions contained in Section 4.4, in an aggregate minimum amount of
Four Million and 00/100 Dollars ($4,000,000) and in integral multiples
of One Million and 00/100 Dollars ($1,000,000) in excess thereof;
provided, that the applicable Borrower may not so prepay Eurodollar
Rate Advances unless it shall have provided at least three (3) Business
Days' prior written notice to the Administrative Agent of such
prepayment and provided, further, all Eurodollar Loans constituting
part of the same Eurodollar Rate Advance shall be repaid or prepaid at
the same time.
(B) Determination of Dollar Amounts of Letters of Credit;
Mandatory Prepayments of Revolving Loans.
(i) The Administrative Agent will determine the Dollar Amount
of:
(a) each Letter of Credit on the date three (3)
Business Days prior to the issuance date, or, if applicable,
renewal date of such Letter of Credit; and
(b) all outstanding L/C Obligations on and as of the
last Business Day of each calendar month and on any other
Business Day elected by the Administrative Agent in its
discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Administrative Agent
determines Dollar Amounts as described in the preceding
clauses (a) and (b) is herein described as a "Computation
Date" with respect to each Letter of Credit for which a Dollar
Amount is determined on or as of such day.
(ii) If at any time and for any reason (other than as the
result of fluctuations in currency exchange rates) the Dollar
Amount of the Revolving Credit Obligations
29
39
(calculated, with respect to all L/C Obligations denominated in
Agreed Currencies other than Dollars, as of the most recent
Computation Date with respect to each such L/C Obligation) is
greater than the Aggregate Commitment, the Borrowers shall
immediately make a mandatory prepayment of the Obligations in an
amount equal to such excess.
(iii) If, on any Computation Date, as a result of fluctuations
in currency exchange rates the Dollar Amount of the Revolving
Credit Obligations exceeds one hundred five percent (105%) of the
Aggregate Commitment, the Administrative Agent shall so notify the
Company and the Lenders of such occurrence and the Borrowers shall
immediately repay Revolving Loans or Swing Line Loans in an
aggregate principal amount sufficient to eliminate any such
excess.
(iv) All of the mandatory prepayments made under this Section
2.4(B) shall be applied first to Floating Rate Loans and to any
Eurodollar Rate Loans maturing on such date and then to
subsequently maturing Eurodollar Rate Loans.
2.5. Changes in Commitments. The Company may permanently
reduce the Aggregate Commitment in whole, or in part ratably among the Lenders,
in an aggregate minimum amount of Ten Million and 00/100 Dollars ($10,000,000)
and integral multiples of One Million and 00/100 Dollars ($1,000,000) in excess
of that amount (unless the Aggregate Commitment is reduced in whole), upon at
least three (3) Business Day's prior written notice to the Administrative Agent,
which notice shall specify the amount of any such reduction; provided, however,
that the amount of the Aggregate Commitment may not be reduced below the
aggregate principal amount of the outstanding Revolving Credit Obligations. All
accrued commitment fees shall be payable on the effective date of any
termination of all or any part of the obligations of the Lenders to make Loans
hereunder.
2.6. Method of Borrowing. On each Borrowing Date, each Lender
shall make available its Revolving Loan or Revolving Loans, if any, not later
than noon, Chicago time, in Federal or other funds immediately available to the
Administrative Agent, in Chicago, Illinois at its address specified in or
pursuant to Article XV. Unless the Administrative Agent determines that any
applicable condition specified in Article V has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders available
to the applicable Borrower at the Administrative Agent's aforesaid address.
2.7. Method of Selecting Types and Interest Periods for
Advances. The applicable Borrower shall select the Type of Advance and, in the
case of each Eurodollar Rate Advance, the Interest Period applicable to each
Advance from time to time. The applicable Borrower shall give the Administrative
Agent irrevocable notice in substantially the form of Exhibit B hereto (a
"Borrowing/Election Notice") not later than 10:00 a.m. (Chicago time) (a) on or
before the Borrowing Date of each Floating Rate Advance, (b) three (3) Business
Days before the Borrowing Date for each Eurodollar Rate Advance. The Borrowers
shall select Interest Periods so that, to the best of their knowledge, it will
not be necessary to prepay all or any portion of any Eurodollar Rate Loan prior
to the last day of the applicable Interest Period in order to make mandatory
prepayments as required pursuant to the terms hereof. Each Floating Rate Advance
and all Obligations other than Loans shall bear interest from and including the
30
40
date of the making of such Advance, in the case of Loans, and the date such
Obligation is due and owing in the case of such other Obligations, to (but not
including) the date of repayment thereof at the Floating Rate changing when and
as such Floating Rate changes. Changes in the rate of interest on that portion
of any Advance maintained as a Floating Rate Loan will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar Rate
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Eurodollar Rate
Advance and shall change as and when the Applicable Eurodollar Margin changes.
2.8. Minimum Amount of Each Advance. Each Advance (other than
an Advance to repay Swing Line Loans or a Reimbursement Obligation) shall be in
the minimum amount of Four Million Dollars ($4,000,000) and in multiples of One
Million Dollars ($1,000,000) if in excess thereof, provided, however, that any
Floating Rate Advance may be in the amount of the unused Aggregate Commitment.
2.9. Method of Selecting Types and Interest Periods for
Conversion and Continuation of Advances.
(A) Right to Convert. The applicable Borrower may elect from
time to time, subject to the provisions of Section 2.3 and this Section
2.9, to convert all or any part of a Loan of any Type into any other
Type or Types of Loans; provided that any conversion of any Eurodollar
Rate Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans
shall continue as Floating Rate Loans unless and until such Floating
Rate Loans are converted into Eurodollar Rate Loans. Eurodollar Rate
Loans shall continue as Eurodollar Rate Loans until the end of the then
applicable Interest Period therefor, at which time such Eurodollar Rate
Loans shall be automatically converted into Floating Rate Loans unless
such Eurodollar Rate Loans shall have been repaid or the Company shall
have given the Administrative Agent notice in accordance with Section
2.9 (D) requesting that, at the end of such Interest Period, such
Eurodollar Rate Loans continue as a Eurodollar Rate Loan.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.9(A) or
Section 2.9(B), no Loan may be converted into or continued as a
Eurodollar Rate Loan (except with the consent of the Required Lenders)
when any Default or Unmatured Default has occurred and is continuing.
(D) Borrowing/Election Notice. The Company shall give the
Administrative Agent an irrevocable Borrowing/Election Notice of each
conversion of a Floating Rate Loan into a Eurodollar Rate Loan or
continuation of a Eurodollar Rate Loan not later than 10:00 a.m.
(Chicago time) (x) one (1) Business Day prior to the date of the
requested conversion or continuation, with respect to any Loan to be
converted to or continued as a Floating Rate Advance, and (y) three (3)
Business Days prior to the date of the requested
31
41
conversion or continuation, with respect to any Loan to be converted or
continued as a Eurodollar Rate Loan, specifying: (1) the requested date
(which shall be a Business Day) of such conversion or continuation; (2)
the amount and Type of the Loan to be converted or continued; and (3)
if applicable, the amount of Eurodollar Rate Loan(s) into which such
Loan is to be converted or continued and the duration of the Interest
Period applicable thereto.
2.10. Default Rate. After the occurrence and during the
continuance of a Default, at the option of the Administrative Agent or at the
direction of the Required Lenders the interest rate(s) applicable to the
Obligations and all other fees (including the fees payable under Section 3.8
with respect to Letters of Credit) shall be equal to (x) the interest rates and
fees calculated based on the maximum Applicable Floating Rate Margins,
Applicable Eurodollar Margin and Applicable Commitment Fee Percentage, as
applicable, under the pricing grid set forth in Section 2.14(D)(ii) plus (y) two
percent (2.00%) per annum for all such Obligations and fees; provided that
during the continuation of a bankruptcy or insolvency default such interest rate
and fee increases shall be automatically applicable without any election of the
Administrative Agent or action of the Required Lenders.
2.11. Method of Payment.
(A) Method of Payment. All payments of principal, interest,
fees, reimbursements, commissions, L/C Obligations and other
Obligations hereunder shall be made, without setoff, deduction or
counterclaim (unless indicated otherwise in Section 2.14(E)), in
immediately available funds to the Administrative Agent at the
Administrative Agent's address specified pursuant to Article XV, or at
any other Lending Installation of the applicable Issuing Bank specified
in writing by such Issuing Bank to the applicable Borrower in
connection with any Letter of Credit issued in an Agreed Currency other
than Dollars. Each Advance shall be repaid or prepaid in Dollars in the
amount equal to the amount borrowed and interest payable thereon shall
also be paid in Dollars. Each L/C Obligation denominated in an Agreed
Currency other than Dollars shall be repaid, and all interest and fees
to be paid in respect thereof shall be paid, in the currency in which
the related Letter of Credit was issued or, where such currency has
converted to euro, in euro. All payments to be made by any Borrower
hereunder in any currency other than Dollars shall be made in such
currency on the date due in such funds as may then be customary for the
settlement of international transactions in such currency for the
account of the Administrative Agent or applicable Issuing Bank, as
applicable, at its designated Lending Installation for such currency.
Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to
such Lender in the same type of funds that the Administrative Agent
received at its address specified pursuant to Article XV or at any
Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is
hereby authorized to charge any account of the applicable Borrower
maintained with Bank One or any of its Affiliates for each payment of
principal, interest and fees as it becomes due hereunder. Each
reference to the Administrative Agent in this Section 2.11 shall also
be deemed to refer, and shall apply equally, to each Issuing Bank, in
the case of payments required to be made by any Borrower to any Issuing
Bank pursuant to Article III.
32
42
(B) Market Disruption. If, after the designation by the
applicable Issuing Bank and the Administrative Agent of any currency as
an Agreed Currency, in the reasonable opinion of any Borrower, any
Issuing Bank, the Required Lenders or the Administrative Agent, (x)
there shall occur any change in national or international financial,
political or economic conditions or currency exchange rates or currency
control or other exchange regulations are imposed in the country which
issues such currency with the result that it shall be impractical for
any L/C Obligation to be denominated in such currency or different
types of such currency are introduced, (y) such currency is no longer
readily available or freely traded or (z) an Equivalent Amount of such
currency is not readily calculable (any such event a "Market
Disruption"), such Borrower, such Issuing Bank, the Required Lenders or
the Administrative Agent, as applicable, shall promptly notify the
Lenders, the Issuing Banks, the Administrative Agent and the Borrowers,
and such currency shall no longer be an Agreed Currency until such time
as the Administrative Agent and any applicable Issuing Bank agrees to
reinstate such currency as an Agreed Currency, and all payments to be
made by the applicable Borrower hereunder in such currency shall
instead be made when due in Dollars in an amount equal to the Dollar
Amount (as of the date of repayment) of such payment due, it being the
intention of the parties hereto that the Borrowers take all risks of
the imposition of any such currency control or exchange regulations.
For purposes of this Section 2.11(B), the commencement of the third
stage of the European Economic and Monetary Union shall not constitute
the imposition of currency control or exchange regulations.
2.12. Evidence of Debt.
(A) Loan Account. Each Lender shall maintain in
accordance with its usual practice an account or accounts (a "Loan
Account") evidencing the indebtedness of the Borrowers to such Lender
owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to
time hereunder.
(B) Register. The Register maintained by the
Administrative Agent pursuant to Section 14.3(C) shall include a
control account, and a subsidiary account for each Lender and each
Borrower, in which accounts (taken together) shall be recorded (i) the
date and the amount of each Loan made hereunder, the Type thereof and
the Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
each of the Borrowers to each Lender hereunder, (iii) the effective
date and amount of each Assignment Agreement delivered to and accepted
by it and the parties thereto pursuant to Section 14.3, (iv) the amount
of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement,
including, without limitation, all fees, charges, expenses and
interest.
(C) Entries in Loan Account and Register. The entries
made in the Loan Account, the Register and the other accounts
maintained pursuant to clauses (A) or (B) of this Section shall be
prima facie evidence thereof for all purposes, absent manifest error,
unless the applicable Borrower objects to information contained in the
Loan Accounts, the Register or the other accounts within thirty (30)
days of the applicable Borrower's
33
43
receipt of such information; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(D) Noteless Transaction; Notes Issued Upon Request. Any
Lender may request that the Revolving Loans made or to be made by it
each be evidenced by a promissory note in substantially the form of
Exhibit J to evidence such Lender's Revolving Loans. In such event, the
Borrowers shall prepare, execute and deliver to such Lender a
promissory note for such Loans payable to the order of such Lender.
Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to
Section 14.3) be represented by one or more promissory notes in such
form payable to the order of the payee named therein.
2.13. Telephonic Notices. The Borrowers authorize the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the applicable Borrower. Each of
the Subsidiary Borrowers authorizes the Company to make requests and give
notices hereunder on behalf of such Subsidiary Borrowers. The Borrowers agree to
deliver promptly to the Administrative Agent a written confirmation, signed by
an Authorized Officer, if such confirmation is requested by the Administrative
Agent or any Lender, of each telephonic notice. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error. In case of disagreement concerning such
notices, if the Administrative Agent has recorded telephonic borrowing notices,
such recordings will be made available to the applicable Borrower upon its
request therefor.
2.14. Promise to Pay; Interest and Commitment Fees; Interest
Payment Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. All Advances shall be paid in full by
the applicable Borrowers on the Termination Date. Each Borrower
unconditionally promises to pay when due the principal amount of each
Loan and all other Obligations incurred by it, and to pay all unpaid
interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents, and confirms that all Borrowers
(other than Borrowers which are Foreign Subsidiaries) shall be jointly
and severally liable for all of the Obligations.
(B) Interest Payment Dates. Interest accrued on each
Floating Rate Loan shall be payable on each Payment Date, commencing
with the first such date to occur after the Closing Date, upon any
prepayment whether by acceleration or otherwise, and at maturity
(whether by acceleration or otherwise). Interest accrued on each
Eurodollar Rate Loan shall be payable on the last day of its applicable
Interest Period, on any date on which the Eurodollar Rate Loan is
prepaid, whether by acceleration or otherwise, and at maturity;
provided, interest accrued on each Eurodollar Rate Loan having an
Interest Period longer
34
44
than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest accrued on
the principal balance of all other Obligations shall be payable in
arrears (i) on the last day of each calendar quarter, commencing on the
first such day following the incurrence of such Obligation, (ii) upon
repayment thereof in full or in part, and (iii) if not theretofore paid
in full, at the time such other Obligation becomes due and payable
(whether by acceleration or otherwise).
(C) Commitment Fees; Additional Fees.
(i) The Company shall pay to the Administrative Agent,
for the account of the Lenders in accordance with their Pro Rata
Shares, from and after the Closing Date until the date on which
the Aggregate Commitment shall be terminated in whole, a
commitment fee at the rate of the then Applicable Commitment Fee
Percentage multiplied by the average amount by which (A) the
Aggregate Commitment in effect from time to time exceeds (B) the
Revolving Credit Obligations (excluding the outstanding principal
amount of the Swing Line Loans) in effect from time to time during
each fiscal quarter of the Company. All such commitment fees
payable under this clause (C) shall be payable quarterly on the
last day of each fiscal quarter of the Company occurring after the
Closing Date (with the first such payment being calculated for the
period from the Closing Date and ending on September 30, 2001),
and, in addition, on any date on which the Aggregate Commitment
shall be terminated in whole.
(ii) The Company agrees to pay or to cause the Borrowers
to pay to the Administrative Agent for the sole account of the
Administrative Agent and the Arranger (unless otherwise agreed
between the Administrative Agent and the Arranger and any Lender)
the fees set forth in the letter agreement between the
Administrative Agent, the Arranger and the Company dated August 2,
2001, payable at the times and in the amounts set forth therein.
(D) Interest and Fee Basis; Applicable Floating Rate
Margins, Applicable Eurodollar Margin, Applicable L/C Fee Percentage
and Applicable Commitment Fee Percentage.
(i) Interest on all fees, Eurodollar Rate Loans and
Alternate Base Rate Loans calculated by reference to the Federal
Fund Effective Rate shall be calculated for actual days elapsed on
the basis of a 360-day year; provided, that the Applicable L/C Fee
Percentage applicable to Letters of Credit issued in British
Pounds Sterling, if any, shall be calculated for actual days
elapsed on the basis of a 365-day year. Interest on all Alternate
Base Rate Loans calculated by reference to the Prime Rate shall be
calculated for actual days elapsed on the basis of a 365/366-day
year. Interest shall be payable for the day an Obligation is
incurred but not for the day of any payment on the amount paid if
payment is received prior to 2:00 p.m. (Chicago time or local
time, as applicable) at the place of payment. If any payment of
principal of or interest on a Loan or any payment of any other
Obligations shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of
35
45
time shall be included in computing interest, fees and commissions
in connection with such payment.
(ii) The Applicable Floating Rate Margins, Applicable
Eurodollar Margin, Applicable L/C Fee Percentage and Applicable
Commitment Fee Percentage shall be determined from time to time by
reference to the table set forth below, on the basis of the then
applicable Leverage Ratio as described in this Section
2.14(D)(ii):
----------------------------------------------------------------------------------------------------------------------
LEVERAGE RATIO LESS THAN 1.00 TO GREATER THAN OR EQUAL GREATER THAN OR GREATER THAN OR
1.00 TO 1.00 TO 1.00 AND EQUAL TO 1.50 TO EQUAL TO 2.00 TO 1.00
LESS THAN 1.50 TO 1.00 1.00 BUT LESS THAN
2.00 TO 1.00
----------------------------------------------------------------------------------------------------------------------
COMMITMENT
FEE 0.25% 0.30% 0.35% 0.40%
----------------------------------------------------------------------------------------------------------------------
APPLICABLE L/C FEE FOR
PERFORMANCE LETTERS OF 0.750% 0.875% 1.000% 1.125%
CREDIT
----------------------------------------------------------------------------------------------------------------------
APPLICABLE L/C FEE FOR
STANDBY LETTERS OF 1.50% 1.75% 2.00% 2.25%
CREDIT
----------------------------------------------------------------------------------------------------------------------
APPLICABLE EURODOLLAR
MARGIN 1.50% 1.75% 2.00% 2.25%
----------------------------------------------------------------------------------------------------------------------
APPLICABLE FLOATING
RATE MARGIN 0.25% 0.50% 0.75% 1.00%
----------------------------------------------------------------------------------------------------------------------
For purposes of this Section 2.15(D)(ii), the Leverage Ratio shall
be calculated as provided in Section 7.4(A). Upon receipt of the
financial statements delivered pursuant to Sections 7.1(A)(i) and
(ii), as applicable, the Applicable Floating Rate Margins,
Applicable Eurodollar Margin, Applicable L/C Fee Percentage and
Applicable Commitment Fee Percentage shall be adjusted, such
adjustment being effective five (5) Business Days following the
date such financial statements and the compliance certificate
required to be delivered in connection therewith pursuant to
Section 7.1(A)(iii) shall be due; provided, that if the Company
shall not have timely delivered its financial statements in
accordance with Section 7.1(A)(i) or (ii), as applicable, then
commencing on the date upon which such financial statements should
have been delivered and continuing until five (5) Business Days
following the date such financial statements are actually
delivered, the Applicable Floating Rate Margins, Applicable
Eurodollar Margin, Applicable L/C Fee Percentage and Applicable
Commitment Fee Percentage shall be the maximum Applicable Floating
Rate Margins, Applicable Eurodollar Margin and Applicable
Commitment Fee
36
46
Percentage, as applicable, under the pricing grid set forth in
Section 2.14(D)(ii).
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder
(whether in respect of principal, interest, fees or otherwise)
shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges
or withholdings or any interest, penalties and liabilities with
respect thereto including those arising after the Closing Date as
a result of the adoption of or any change in any law, treaty,
rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application
thereof by a Governmental Authority but excluding, in the case of
each Lender and the Administrative Agent, such taxes (including
income taxes, franchise taxes and branch profit taxes) as are
imposed on or measured by such Lender's or the Administrative
Agent's, as the case may be, net income by the United States of
America or any Governmental Authority of the jurisdiction under
the laws of which such Lender or the Administrative Agent, as the
case may be, is organized (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which
the Administrative Agent or a Lender determines to be applicable
to this Agreement, the other Loan Documents, the Commitments, the
Loans or the Letters of Credit being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder
or under the other Loan Documents to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions or
withholdings (including deductions applicable to additional sums
payable under this Section 2.14(E)) such Lender or Administrative
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions or withholdings been
made, (ii) the applicable Borrower shall make such deductions or
withholdings, and (iii) the applicable Borrower shall pay the full
amount deducted or withheld to the relevant taxation authority or
other authority in accordance with applicable law. If a
withholding tax of the United States of America or any other
Governmental Authority shall be or become applicable (y) after the
date of this Agreement, to such payments by the applicable
Borrower made to the Lending Installation or any other office that
a Lender may claim as its Lending Installation, or (z) after such
Lender's selection and designation of any other Lending
Installation, to such payments made to such other Lending
Installation, such Lender shall use reasonable efforts to make,
fund and maintain the affected Loans through another Lending
Installation of such Lender in another jurisdiction so as to
reduce the applicable Borrower's liability hereunder, if the
making, funding or maintenance of such Loans through such other
Lending Installation of such Lender does not, in the judgment of
such Lender, otherwise adversely affect such Loans, or obligations
under the Commitment of such Lender.
(ii) In addition, the Borrowers agree to pay any present
or future stamp or documentary taxes or any other excise or
property taxes, charges, or similar levies which arise from any
payment made hereunder, from the issuance of Letters of Credit
hereunder, or from the execution, delivery or registration of, or
otherwise with respect
37
47
to, this Agreement, the other Loan Documents, the Commitments, the
Loans or the Letters of Credit (hereinafter referred to as "Other
Taxes").
(iii) The Company and each Subsidiary Borrower shall
indemnify each Lender and the Administrative Agent for the full
amount of Taxes and Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any Governmental Authority on
amounts payable under this Section 2.14(E)) paid by such Lender or
the Administrative Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall be
made within thirty (30) days after the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor. If the Taxes or Other Taxes with respect to which the
Company or any Subsidiary Borrower has made either a direct
payment to the taxation or other authority or an indemnification
payment hereunder are subsequently refunded to any Lender, such
Lender will return to the applicable Borrower, if no Event of
Default has occurred and is continuing, an amount equal to the
lesser of the indemnification payment or the refunded amount. A
certificate as to any additional amount payable to any Lender or
the Administrative Agent under this Section 2.14(E) submitted to
the applicable Borrower and the Administrative Agent (if a Lender
is so submitting) by such Lender or the Administrative Agent shall
show in reasonable detail the amount payable and the calculations
used to determine such amount and shall, absent manifest error, be
final, conclusive and binding upon all parties hereto. With
respect to such deduction or withholding for or on account of any
Taxes and to confirm that all such Taxes have been paid to the
appropriate Governmental Authorities, the applicable Borrower
shall promptly (and in any event not later than thirty (30) days
after receipt) furnish to each Lender and the Administrative Agent
such certificates, receipts and other documents as may be required
(in the reasonable judgment of such Lender or the Administrative
Agent) to establish any tax credit to which such Lender or the
Administrative Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment
of Taxes or Other Taxes by the Company or any Subsidiary Borrower,
the Company shall furnish to the Administrative Agent the original
or a certified copy of a receipt evidencing payment thereof.
(iv) Without prejudice to the survival of any other
agreement of the Company and the Subsidiary Borrowers hereunder,
the agreements and obligations of the Borrowers contained in this
Section 2.14(E) shall survive the payment in full of all
Obligations, the termination of the Letters of Credit and the
termination of this Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each
a "Non-U.S. Lender") shall deliver to the Company and the
Administrative Agent on or before the Closing Date, or, if later,
the date on which such Lender becomes a Lender pursuant to Section
14.3 hereof (and from time to
38
48
time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S. Lender
is legally entitled to do so), either (1) two (2) duly completed
copies of either (A) IRS Form W-8BEN, or (B) IRS Form W-8ECI, or
in either case an applicable successor form; or (2) in the case of
a Non-U.S. Lender that is not legally entitled to deliver the
forms listed in clause (vi)(1), (x) a certificate of a duly
authorized officer of such Non-U.S. Lender to the effect that such
Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the
Company or any Subsidiary Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code (such certificate, an "Exemption
Certificate") and (y) two (2) duly completed copies of IRS Form
W-8BEN or applicable successor form. Each such Lender further
agrees to deliver to the Company and the Administrative Agent from
time to time a true and accurate certificate executed in duplicate
by a duly authorized officer of such Lender in a form satisfactory
to the Company and the Administrative Agent, before or promptly
upon the occurrence of any event requiring a change in the most
recent certificate previously delivered by it to the Company and
the Administrative Agent pursuant to this Section 2.14(E)(vi).
Further, each Lender which delivers a form or certificate pursuant
to this clause (vi) covenants and agrees to deliver to the Company
and the Administrative Agent within fifteen (15) days prior to the
expiration of such form, for so long as this Agreement is still in
effect, another such certificate and/or two (2) accurate and
complete original newly-signed copies of the applicable form (or
any successor form or forms required under the Code or the
applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be
reasonably required by any Borrower or the Administrative Agent to
establish any exemption from or reduction of any Taxes or Other
Taxes required to be deducted or withheld and which may be
obtained without undue expense to such Lender. Notwithstanding any
other provision of this Section 2.14(E), no Borrower shall be
obligated to gross up any payments to any Lender pursuant to
Section 2.14(E)(i), or to indemnify any Lender pursuant to Section
2.14(E)(iii), in respect of United States federal withholding
taxes to the extent imposed as a result of (x) the failure of such
Lender to deliver to the Company the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
Section 2.14(E)(vi), (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S.
federal withholding tax or the information or certifications made
therein by the Lender being untrue or inaccurate on the date
delivered in any material respect, or (z) the Lender designating a
successor Lending Installation at which it maintains its Loans
which has the effect of causing such Lender to become obligated
for tax payments in excess of those in effect immediately prior to
such designation; provided, however, that the applicable Borrower
shall be obligated to gross up any payments to any such Lender
pursuant to Section 2.14(E)(i), and to indemnify any such Lender
pursuant to Section 2.14(E)(iii), in respect of United States
federal withholding taxes if (i) any such failure to deliver a
form or forms or an Exemption Certificate or the failure of such
form or forms or exemption certificate to establish a complete
exemption from U.S. federal
39
49
withholding tax or inaccuracy or untruth contained therein
resulted from a change in any applicable statute, treaty,
regulation or other applicable law or any interpretation of any of
the foregoing occurring after the Closing Date, which change
rendered such Lender no longer legally entitled to deliver such
form or forms or Exemption Certificate or otherwise ineligible for
a complete exemption from U.S. federal withholding tax, or
rendered the information or the certifications made in such form
or forms or Exemption Certificate untrue or inaccurate in any
material respect, (ii) the redesignation of the Lender's Lending
Installation was made at the request of the Company or (iii) the
obligation to gross up payments to any such Lender pursuant to
Section 2.14(E)(i), or to indemnify any such Lender pursuant to
Section 2.14(E)(iii), is with respect to a Purchaser that becomes
a Purchaser as a result of an assignment made at the request of
the Company.
(vii) Upon the request, and at the expense of the Company,
each Lender to which any Borrower is required to pay any
additional amount pursuant to this Section 2.14(E), shall
reasonably afford the applicable Borrower the opportunity to
contest, and shall reasonably cooperate with the applicable
Borrower in contesting, the imposition of any Tax giving rise to
such payment; provided, that (i) such Lender shall not be required
to afford the applicable Borrower the opportunity to so contest
unless the applicable Borrower shall have confirmed in writing to
such Lender its obligation to pay such amounts pursuant to this
Agreement; and (ii) the Company shall reimburse such Lender for
its reasonable attorneys' and accountants' fees and disbursements
incurred in so cooperating with the applicable Borrower in
contesting the imposition of such Tax.
2.15. Notification of Advances, Interest Rates, Prepayments and
Aggregate Commitment Reductions. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each Aggregate
Commitment reduction notice, Borrowing/Election Notice, and repayment notice
received by it hereunder. The Administrative Agent will notify the applicable
Borrower and each Lender of the interest rate applicable to each Eurodollar Rate
Loan promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.16. Lending Installations. Each Lender will book its Loans or
Letters of Credit at the appropriate Lending Installation listed on the
administrative information sheets provided to the Administrative Agent in
connection herewith or such other Lending Installation designated by such Lender
in accordance with the final sentence of this Section 2.16. All terms of this
Agreement shall apply to any such Lending Installation. Each Lender may, by
written or facsimile notice to the Administrative Agent and the Company,
designate a Lending Installation through which Loans will be made by it and for
whose account Loan payments and/or payments of L/C Obligations are to be made.
2.17. Non-Receipt of Funds by the Administrative Agent. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of any Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
40
50
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the applicable Borrower, as the case may be, has
not in fact made such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in
the case of payment by a Borrower, the interest rate applicable to the relevant
Loan.
2.18. Termination Date. This Agreement shall be effective until
the Termination Date. Notwithstanding the termination of this Agreement, until
(A) all financing arrangements among the Borrowers and the Lenders shall have
been terminated and (B) all of the Letters of Credit shall have expired, been
cancelled or terminated, or cash collateralized pursuant to the terms of this
Agreement or supported by a letter of credit acceptable to the Administrative
Agent (collectively, the "Termination Conditions"), all of the rights and
remedies under this Agreement and the other Loan Documents shall survive.
2.19. Replacement of Certain Lenders. In the event a Lender
("Affected Lender") shall have: (i) failed to fund its Applicable Pro Rata Share
of any Advance requested by the applicable Borrower, or to fund a Revolving Loan
in order to repay Swing Line Loans pursuant to Section 2.2(D), which such Lender
is obligated to fund under the terms of this Agreement and which failure has not
been cured, (ii) requested compensation from any Borrower under Sections
2.14(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other additional costs
incurred by such Lender which are not being incurred generally by the other
Lenders, (iii) delivered a notice pursuant to Section 4.3 claiming that such
Lender is unable to extend Eurodollar Rate Loans to any Borrower for reasons not
generally applicable to the other Lenders or (iv) has invoked Section 11.2;
then, in any such case, after engagement of one or more "Replacement Lenders"
(as defined below) by the Company and/or the Administrative Agent, the Company
or the Administrative Agent may make written demand on such Affected Lender
(with a copy to the Administrative Agent in the case of a demand by the Company
and a copy to the Company in the case of a demand by the Administrative Agent)
for the Affected Lender to assign, and such Affected Lender shall use
commercially reasonable efforts to assign pursuant to one or more duly executed
Assignment Agreements five (5) Business Days after the date of such demand, to
one or more financial institutions that comply with the provisions of Section
14.3(A) which the Company or the Administrative Agent, as the case may be, shall
have engaged for such purpose ("Replacement Lender"), all of such Affected
Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Commitment, all Loans owing to it,
all of its participation interests in existing Letters of Credit, L/C Drafts and
unreimbursed drawings under Letters of Credit, and its obligation to participate
in additional Letters of Credit and Swing Line Loans hereunder) in accordance
with Section 14.3. The Administrative Agent agrees, upon the occurrence of such
events with respect to an Affected Lender and upon the written request of the
Company, to use its reasonable efforts to obtain the commitments from one or
more financial institutions to act as a Replacement Lender. The Administrative
Agent is authorized to execute one or more of such assignment agreements
41
51
as attorney-in-fact for any Affected Lender failing to execute and deliver the
same within five (5) Business Days after the date of such demand. Further, with
respect to such assignment the Affected Lender shall have concurrently received,
in cash, all amounts due and owing to the Affected Lender hereunder or under any
other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
Sections 2.14(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under Section 2.14(C) in the event of any replacement of
any Affected Lender under clause (ii) or clause (iii) of this Section 2.19;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14(E), 4.1, 4.2, 4.4, and 11.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Section 12.8.
2.20. Subsidiary Borrowers. The Company may at any time or from
time to time, with the consent of the Administrative Agent add as a party to
this Agreement any Subsidiary to be a Subsidiary Borrower hereunder by the
execution and delivery to the Administrative Agent and the Lenders of (a) a duly
completed Assumption Letter by such Subsidiary, with the written consent of the
Company at the foot thereof, (b) such guaranty and subordinated intercompany
indebtedness documents as may be reasonably required by the Administrative Agent
and such other opinions, documents, certificates or other items as may be
required by Section 5.2, such documents with respect to any additional
Subsidiaries to be substantially similar in form and substance to the Loan
Documents executed on or about the Closing Date by the Subsidiaries parties
hereto as of the Closing Date. Upon such execution, delivery and consent such
Subsidiary shall for all purposes be a party hereto as a Subsidiary Borrower as
fully as if it had executed and delivered this Agreement. So long as the
principal of and interest on any Advances made to any Subsidiary Borrower under
this Agreement shall have been repaid or paid in full, all Letters of Credit
issued for the account of such Subsidiary Borrower have expired or been returned
and terminated and all other obligations of such Subsidiary Borrower under this
Agreement shall have been fully performed, the Company may, by not less than
five (5) Business Days' prior notice to the Administrative Agent (which shall
promptly notify the Lenders thereof), terminate such Subsidiary Borrower's
status as a "Subsidiary Borrower". The Administrative Agent shall give the
Lenders written notice of the addition of any Subsidiary Borrowers to this
Agreement.
2.21. Judgment Currency. If, for the purposes of obtaining
judgment in any court, it is necessary to convert a sum due from any Borrower
hereunder in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative
Agent could purchase the specified currency with such other currency at the
Administrative Agent's main office in Chicago, Illinois on the Business Day
preceding that on which the final, non-appealable judgment is given. The
obligations of each Borrower in respect of any sum due to any Lender, any
Issuing Bank or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender, such
Issuing Bank or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in such other currency such Lender, such Issuing Bank or
the Administrative Agent (as the case may be) may in accordance
42
52
with normal, reasonable banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Lender, such Issuing Bank or the
Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to reimburse such
Lender, such Issuing Bank or the Administrative Agent, as the case may be, for
any such loss; and if no Default or Unmatured Default shall have occurred and is
continuing and the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Lender, any Issuing Bank or the Administrative Agent,
as the case may be, in the specified currency and (b) any amounts shared with
other Lenders as a result of allocations of such excess as a disproportionate
payment to such Lender or Issuing Bank under Section 14.2, such Lender, such
Issuing Bank or the Administrative Agent, as the case may be, agrees to remit
such excess to such Borrower.
2.22. Extension of Termination Date. The Company, on behalf of
itself and the other Borrowers, may request one-year extensions of the
Termination Date by submitting a request for an extension to the Administrative
Agent (each, an "Extension Request") no more than sixty (60) and no less than
thirty (30) days prior to the then effective Termination Date, which Extension
Request shall specify (i) the new Termination Date requested by the Borrowers,
which new Termination Date shall be a date not later than 364 days after the
"Response Date" (as defined below) and (ii) the date (which must be not more
than thirty (30) days nor less than fifteen (15) days prior to the then
effective Termination Date) as of which the Lenders must respond to the
Extension Request (the "Response Date"). Promptly upon receipt of an Extension
Request, the Administrative Agent shall notify each Lender thereof and shall
request each Lender to approve the Extension Request. Each Lender approving the
Extension Request shall deliver its written consent no later than the Response
Date (and the failure to provide such written consent by such date shall be
deemed to be a decision not to extend). The Commitment of each Lender that
declines to extend with respect to the Aggregate Commitment may, at the option
of the Company, be replaced in accordance with Section 14.3 (but only to the
extent a replacement Lender is then available) or the Aggregate Commitment
reduced. All Obligations due to each Lender that declines to extend its
Commitment under this Section 2.22 shall be paid in full by the Borrowers to the
Administrative Agent for the account of each such Lender on the then effective
Termination Date (without giving effect to any such requested extension
thereto). The Required Lenders and the Borrowers must agree to any extension
with respect to the Termination Date for any such extension to become effective,
and the Administrative Agent shall promptly notify the Borrowers and each Lender
of any new Termination Date.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1. Obligation to Issue Letters of Credit. Subject to the terms
and conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrowers herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary Borrower
through such Issuing Bank's branches as it and the Company may jointly agree,
one or more Letters of Credit denominated in an Agreed Currency in accordance
with this Article III, from time to time during the period, commencing on the
Closing Date and ending on the fifth (5th) Business Day prior to the Termination
Date; provided, however, if an Issuing Bank is requested to issue Letters of
Credit with respect to a jurisdiction such Issuing Bank deems, in its sole
discretion, may at any time subject it to a New Money
43
53
Credit Event, the Company shall, at the request of such Issuing Bank, guaranty
and indemnify such Issuing Bank against any and all costs, liabilities and
losses resulting from any New Money Credit Event in a form and substance
satisfactory to such Issuing Bank.
3.2. Transitional Provision. Subject to the satisfaction of the
conditions contained in Sections 5.1, 5.2 and 5.3, from and after the Closing
Date each of the letters of credit identified on Schedule 3.2 hereto and issued
for the account of the Company and its Subsidiaries pursuant to that certain
Credit Agreement, dated as of December 1, 2000, among the Company, the
subsidiary borrowers parties thereto, the lenders parties thereto and Bank One,
NA, as administrative agent (as amended, the "Existing Credit Agreement" (or
deemed to be issued as of the closing date under the Existing Credit Agreement)
shall be deemed to be Letters of Credit issued pursuant to this Article III.
3.3. Types and Amounts. No Issuing Bank shall have any obligation
to and no Issuing Bank shall:
(i) issue (or amend) any Letter of Credit if on the date of
issuance (or amendment), before or after giving effect to the Letter of
Credit requested hereunder, the Dollar Amount of the Revolving Credit
Obligations at such time would exceed the Aggregate Commitment at such
time calculated as of the date of issuance of any Letter of Credit; or
(ii) issue (or amend) any Letter of Credit which has an
expiration date later than the date which is five (5) Business Days
immediately preceding the Termination Date; provided, that any Letter
of Credit may provide for the renewal thereof for additional periods
(which in no event shall extend beyond the fifth (5th) Business Day
prior to the Termination Date).
3.4. Conditions. In addition to being subject to the satisfaction
of the conditions contained in Sections 5.1, 5.2 and 5.3, the obligation of an
Issuing Bank to issue any Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the applicable Borrower shall have delivered to the
applicable Issuing Bank (at such times and in such manner as such
Issuing Bank may reasonably prescribe) and the Administrative Agent, a
request for issuance of such Letter of Credit in substantially the form
of Exhibit C hereto, duly executed applications for such Letter of
Credit and such other documents, instructions and agreements as may be
required pursuant to the terms thereof (all such applications,
documents, instructions, and agreements being referred to herein as the
"L/C Documents"), and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuing Bank as to form and content; and
(ii) as of the date of issuance no order, judgment or decree of
any court, arbitrator or Governmental Authority shall purport by its
terms to enjoin or restrain the applicable Issuing Bank from issuing
such Letter of Credit and no law, rule or regulation applicable to such
Issuing Bank and no request or directive (whether or not having the
force of law) from a Governmental Authority with jurisdiction over such
44
54
Issuing Bank shall prohibit or request that such Issuing Bank refrain
from the issuance of Letters of Credit generally or the issuance of
that Letter of Credit.
3.5. Procedure for Issuance of Letters of Credit.
(A) Issuance. Subject to the terms and conditions of this
Article III and provided that the applicable conditions set forth in
Sections 5.1, 5.2 and 5.3 hereof have been satisfied, the applicable
Issuing Bank shall, on the requested date, issue a Letter of Credit on
behalf of the Company or a Subsidiary Borrower, as applicable in
accordance with such Issuing Bank's usual and customary business
practices and, in this connection, such Issuing Bank may assume that
the applicable conditions set forth in Section 5.3 hereof have been
satisfied unless it shall have received notice to the contrary from the
Administrative Agent or a Lender or has knowledge that the applicable
conditions have not been met. To the extent that there shall be any
conflict between the provisions of any L/C Document and the provisions
of this Agreement, the provisions of this Agreement shall prevail.
(B) Notice. The applicable Issuing Bank shall give the
Administrative Agent written or telex notice, or telephonic notice
confirmed promptly thereafter in writing, of the issuance of a Letter
of Credit, provided, however, that the failure to provide such notice
shall not result in any liability on the part of such Issuing Bank.
(C) No Amendment. No Issuing Bank shall extend or amend any
Letter of Credit unless the requirements of this Section 3.5 are met as
though a new Letter of Credit was being requested and issued.
3.6. Letter of Credit Participation. On the date of this
Agreement, with respect to the Letters of Credit identified in Section 3.2, and
immediately upon the issuance of each Letter of Credit hereunder, each Lender
shall be deemed to have automatically, irrevocably and unconditionally purchased
and received from the applicable Issuing Bank an undivided interest and
participation in and to such Letter of Credit, the obligations of the applicable
Borrower in respect thereof, and the liability of such Issuing Bank thereunder
(collectively, an "L/C Interest") in an amount equal to the Dollar Amount
available for drawing under such Letter of Credit multiplied by such Lender's
Pro Rata Share. Each Issuing Bank will notify the Administrative Agent and each
Lender promptly upon presentation to it of an L/C Draft or upon any other draw
under a Letter of Credit, which notice shall also state the Agreed Currency and
face amount of such L/C Draft or other draw. On or before the Business Day on
which an Issuing Bank makes payment of each such L/C Draft or, in the case of
any other draw on a Letter of Credit, on demand by the Administrative Agent or
the applicable Issuing Bank, each Lender shall make payment to the
Administrative Agent, for the account of the applicable Issuing Bank, in
immediately available funds in Dollars in an amount equal to such Lender's Pro
Rata Share of the Dollar Amount of such payment or draw. The obligation of each
Lender to reimburse the Issuing Banks under this Section 3.6 shall be
unconditional, continuing, irrevocable and absolute. In the event that any
Lender fails to make payment to the Administrative Agent of any amount due under
this Section 3.6, the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent receives such payment
from such Lender or such obligation is
45
55
otherwise fully satisfied; provided, however, that nothing contained in this
sentence shall relieve such Lender of its obligation to reimburse the applicable
Issuing Bank for such amount in accordance with this Section 3.6.
3.7. Reimbursement Obligation. Each of the Borrowers agree
unconditionally, irrevocably and absolutely to pay immediately to the
Administrative Agent, for the account of the Lenders, the amount of each advance
drawn under or pursuant to a Letter of Credit issued to it or an L/C Draft
related thereto (such obligation of such Borrower to reimburse the
Administrative Agent for an advance made under a Letter of Credit or L/C Draft
being hereinafter referred to as a "Reimbursement Obligation" with respect to
such Letter of Credit or L/C Draft), each such reimbursement to be made by the
applicable Borrower no later than the Business Day on which the applicable
Issuing Bank makes payment of each such L/C Draft or, if the applicable Borrower
shall have received notice of a Reimbursement Obligation later than 12:00 p.m.
(Chicago time), on any Business Day or on a day which is not a Business Day, no
later than 12:00 p.m. (Chicago time), on the immediately following Business Day
or, in the case of any other draw on a Letter of Credit, the date specified in
the demand of such Issuing Bank. If any Borrower at any time fails to repay a
Reimbursement Obligation at the time specified in the preceding sentence, such
unpaid Reimbursement Obligation shall at that time be automatically converted
into an obligation denominated in Dollars and such Borrower shall be deemed to
have elected to borrow Revolving Loans from the Lenders, as of the date of the
advance giving rise to the Reimbursement Obligation, equal in amount to the
Dollar Amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall
be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an Advance of Revolving Loans.
Such Revolving Loans shall constitute a Floating Rate Advance, the proceeds of
which Advance shall be used to repay such Reimbursement Obligation. If, for any
reason, any Borrower fails to repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason, the Lenders are unable to
make or have no obligation to make Revolving Loans, then such Reimbursement
Obligation shall bear interest from and after such day, until paid in full, at
the interest rate applicable to a Floating Rate Advance (or, in the case of a
Reimbursement Obligation denominated in an Agreed Currency other than Dollars,
at the rate determined by the applicable Issuing Bank in good faith to represent
such Issuing Bank's cost of overnight or short-term funds in the applicable
Agreed Currency plus the then effective Applicable Eurodollar Margin). The
Borrowers agree to indemnify each Issuing Bank against any loss or expense
determined by such Issuing Bank in good faith to have resulted from any
conversion pursuant to this Section 3.7 by reason of the inability of such
Issuing Bank to convert the Dollar Amount received from the applicable Borrower
or from the Lenders, as applicable, into an amount in the applicable Agreed
Currency of such Letter of Credit equal to the amount of such Reimbursement
Obligation.
3.8. Letter of Credit Fees. The Borrowers agree to pay:
(i) quarterly, in arrears, to the Administrative Agent for the
ratable benefit of the Lenders, a letter of credit fee at a rate per
annum equal to the Applicable L/C Fee Percentage for Performance
Letters of Credit and Standby Letters of Credit, as applicable, on the
average daily outstanding Dollar Amount available for drawing under all
Performance Letters of Credit and Standby Letters of Credit,
respectively;
46
56
(ii) quarterly, in arrears, to the applicable Issuing Bank, a
letter of credit fronting fee equal to 0.125% per annum on the average
daily outstanding stated amount available for drawing under all Letters
of Credit issued by such Issuing Bank; and
(iii) to the applicable Issuing Bank, all customary fees and other
issuance, amendment, cancellation, document examination, negotiation,
transfer and presentment expenses and related charges in connection
with the issuance, amendment, cancellation, presentation of L/C Drafts,
negotiation, transfer and the like customarily charged by such Issuing
Banks with respect to standby, performance and commercial letters of
credit, including, without limitation, standard commissions with
respect to Performance Letters of Credit, payable at the time of
invoice of such amounts.
3.9. Borrower and Issuing Bank Reporting Requirements. The
Company shall, at any time as requested by the Administrative Agent or the
Required Lenders but in any event no later than the tenth Business Day following
the last day of each month, provide to the Administrative Agent schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, Agreed Currency and amount in such Agreed
Currency, Issuing Bank, expiration date and the reference number of each Letter
of Credit issued hereunder outstanding at any time during such month. In
addition to the notices required by Section 3.5(B), each Issuing Bank shall, at
any time as requested by the Administrative Agent or the Required Lenders but in
any event no later than the tenth Business Day following the last day of each
month, provide to the Administrative Agent schedules, in form and substance
reasonably satisfactory to the Administrative Agent, showing the date of issue,
account party, Agreed Currency and amount in such Agreed Currency, expiration
date and the reference number of each Letter of Credit issued by it outstanding
at any time during such month and the aggregate amount payable by the applicable
Borrower during such month. In addition, upon the request of the Administrative
Agent, each Issuing Bank shall furnish to the Administrative Agent copies of any
Letter of Credit and any application for or reimbursement agreement with respect
to a Letter of Credit to which the Issuing Bank is party and such other
documentation as may reasonably be requested by the Administrative Agent. Upon
the request of any Lender, the Administrative Agent will provide to such Lender
information concerning such Letters of Credit as the Administrative Agent has
received from the Issuing Banks.
3.10. Indemnification; Exoneration.
(A) Indemnification. In addition to amounts payable as elsewhere
provided in this Article III, each Borrower hereby agrees to protect,
indemnify, pay and save harmless the Administrative Agent, each Issuing
Bank and each Lender from and against any and all liabilities and costs
which the Administrative Agent, such Issuing Bank or such Lender may
incur or be subject to in any way directly connected with (i) the
issuance of any Letter of Credit other than, in the case of the
applicable Issuing Bank, as a result of its Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the applicable Issuing Bank to
honor a drawing under a Letter of Credit as a result of any act or
omission,
47
57
whether rightful or wrongful, of any present or future de jure or de
facto Governmental Authority (all such acts or omissions herein called
"Governmental Acts").
(B) Risk Assumption. As among the Borrowers, the Lenders, the
Administrative Agent and the Issuing Banks, the Borrowers assume all
risks of the acts and omissions of, or misuse of such Letter of Credit
by, the beneficiary of any Letters of Credit. In furtherance and not in
limitation of the foregoing, subject to the provisions of the Letter of
Credit applications and Letter of Credit reimbursement agreements
executed by the Borrowers at the time of request for any Letter of
Credit, neither the Administrative Agent, any Issuing Bank nor any
Lender shall be responsible (in the absence of Gross Negligence or
willful misconduct in connection therewith, as determined by the final
judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for
and issuance of the Letters of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to
draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex, or other similar form of
teletransmission or otherwise; (v) for errors in interpretation of
technical trade terms; (vi) for any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds
of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Banks and the Lenders, including,
without limitation, any Governmental Acts. None of the above shall
affect, impair, or prevent the vesting of any Issuing Bank's rights or
powers under this Section 3.10.
(C) No Liability. In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any action
taken or omitted by any Issuing Bank under or in connection with the
Letters of Credit or any related certificates shall not, in the absence
of Gross Negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, put the applicable
Issuing Bank, the Administrative Agent or any Lender under any
resulting liability to any Borrower or relieve any Borrower of any of
its obligations hereunder to any such Person.
(D) Survival of Agreements and Obligations. Without prejudice to
the survival of any other agreement of the Borrowers hereunder, the
agreements and obligations of the Borrowers contained in this Section
3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination
of this Agreement.
3.11. Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article II, Article III and Article V with respect to
any Letter of Credit to be issued
48
58
in any Agreed Currency other than Dollars, if there shall occur on or prior to
the date of issuance of such Letter of Credit any Market Disruption, then the
Administrative Agent shall forthwith give notice thereof to the Borrowers, the
Issuing Bank and the Lenders, and such Letter of Credit shall not be denominated
in such Agreed Currency but shall be made on the date of issuance of such Letter
of Credit in Dollars, in a face amount equal to the Dollar Amount of the face
amount specified in the related request or application for such Letter of
Credit, unless the Borrower notifies the Administrative Agent at least one
Business Day before such date that (i) it elects not to request the issuance of
such Letter of Credit on such date or (ii) it elects to have such Letter of
Credit issued on such date in a different Agreed Currency, as the case may be,
in which the denomination of such Letter of Credit would in the opinion of the
applicable Issuing Bank, the Administrative Agent and the Required Lenders be
practicable and in a face amount equal to the Dollar Amount of the face amount
specified in the related request or application for such Letter of Credit, as
the case may be.
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1. Yield Protection.
(A) Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) adopted after the date of this
Agreement and having general applicability to all banks within the
jurisdiction in which such Lender operates (excluding, for the
avoidance of doubt, the effect of and phasing in of capital
requirements or other regulations or guidelines passed prior to the
date of this Agreement), or any interpretation or application thereof
by any Governmental Authority charged with the interpretation or
application thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
any Borrower (excluding taxation of the overall net income of any
Lender or taxation of a similar basis, which are governed by Section
2.14(E)), or changes the basis of taxation of payments to any Lender
in respect of its Commitment, Loans, its L/C Interests, the Letters
of Credit or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Rate Loans)
with respect to its Commitment, Loans, L/C Interests, Loans or the
Letters of Credit, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining its Commitment, the
Loans, the L/C Interests or the Letters of Credit or reduces any
amount receivable by any Lender or any applicable Lending
Installation in connection with its Commitment, Loans or Letters of
Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference
49
59
to the amount of Commitment, Loans or L/C Interests held or interest
received by it or by reference to the Letters of Credit, by an
amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that
Lender of making, renewing or maintaining its Commitment, Loans, L/C
Interests, or Letters of Credit or to reduce any amount received under
this Agreement, then, within fifteen (15) days after receipt by the
Company or any other Borrower of written demand by such Lender pursuant
to Section 4.5, the applicable Borrowers shall pay such Lender that
portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making,
funding and maintaining its Loans, L/C Interests, Letters of Credit and
its Commitment.
(B) Non-U.S. Reserve Costs or Fees With Respect to Loans and
Letters of Credit to Borrowers. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive of
any jurisdiction outside of the United States of America or any
subdivision thereof (whether or not having the force of law), imposes
or deems applicable any reserve requirement against or fee with respect
to assets of, deposits with or for the account of, or credit extended
by, any Lender, any Issuing Bank or any applicable Lending
Installation, and the result of the foregoing is to increase the cost
to such Lender, such Issuing Bank or applicable Lending Installation of
making or maintaining its Eurodollar Loans to, or issuing a Letter of
Credit in an Agreed Currency other than Dollars for the benefit of, any
Borrower or its Commitment to any Borrower or to reduce the return
received by such Lender, such Issuing Bank or applicable Lending
Installation in connection with such Eurodollar Loans or Letters of
Credit to or for the benefit of any Borrower or Commitment to any
Borrower, then, within 15 days of demand by such Lender or such Issuing
Bank, such Borrower shall pay such Lender or such Issuing Bank, as
applicable, such additional amount or amounts as will compensate such
Lender or such Issuing Bank for such increased cost or reduction in
amount received, provided that such Borrower shall not be required to
compensate any Lender for such non-U.S. reserve costs or fees to the
extent that an amount equal to such reserve costs or fees is received
by such Lender as a result of the calculation of the interest rate
applicable to Eurodollar Rate Advances pursuant to clause (i)(b) of the
definition of "Eurodollar Rate."
4.2. Changes in Capital Adequacy Regulations. If a Lender
determines (i) the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a "Change" (as defined
below), and (ii) such increase in capital will result in an increase in the cost
to such Lender of maintaining its Commitment, Loans, L/C Interests, the Letters
of Credit or its obligation to make Loans hereunder, then, within fifteen (15)
days after receipt by the Company or any other Borrower of written demand by
such Lender pursuant to Section 4.5, the applicable Borrowers shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Commitment, its Loans, its L/C Interests,
the Letters of Credit or its obligation to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "Change" means (i)
any change after the date of this
50
60
Agreement in the "Risk-Based Capital Guidelines" (as defined below) excluding,
for the avoidance of doubt, the effect of any phasing in of such Risk-Based
Capital Guidelines or any other capital requirements passed prior to the Closing
Date, or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
4.3. Availability of Types of Advances. If (i) any Lender
determines that maintenance of its Eurodollar Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type or maturity appropriate to match fund Eurodollar
Rate Loans are not available or (y) the interest rate applicable to a Eurodollar
Rate Loan does not accurately reflect the cost of making or maintaining such an
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and, in the case of any occurrence set forth in clause
(i), require any Advances of the affected Type to be repaid or converted into
another Type.
4.4. Funding Indemnification. If any payment of a Eurodollar Rate
Loan occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment (whether voluntary or
mandatory, including, without limitation as required pursuant to Section
2.4(B)), or otherwise, or a Eurodollar Rate Loan is not made on the date
specified by the applicable Borrower for any reason other than default by the
Lenders, or a Eurodollar Rate Loan is not prepaid on the date specified by the
applicable Borrower for any reason, the Borrowers indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain the Eurodollar Rate Loan.
4.5. Lender Statements; Survival of Indemnity. If reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Rate Loan to reduce any liability of any Borrower to
such Lender under Sections 4.1 and 4.2 or to avoid the unavailability of a Type
of Advance under Section 4.3, so long as such designation is not, in the
judgment of the Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Company (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 2.14(E), 4.1,
4.2 or 4.4 and shall set forth in reasonable detail the calculations upon which
such Lender determined such amount and shall be prima facie evidence thereof and
binding on the Borrowers in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Rate Loan
shall be calculated as though each Lender funded its Eurodollar Rate Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining
51
61
the Eurodollar Rate applicable to such Loan, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable on demand after receipt by the
applicable Borrower of such statement. The obligations of the Company and the
other Borrowers under Sections 2.14(E), 4.1, 4.2 and 4.4 shall survive payment
of the Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1. Initial Advances and Letters of Credit. The Lenders shall
not be required to make the initial Loans or issue any Letters of Credit unless
the Company has furnished to the Administrative Agent each of the following,
with sufficient copies for the Lenders, all in form and substance satisfactory
to the Administrative Agent and the Lenders:
(i) Copies, certified by the Secretary or Assistant Secretary of
each of the Borrowers of their respective Board of Directors'
resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution of the
Loan Documents entered into by it;
(ii) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by an Authorized Officer of the Company,
certifying that on the date of this Agreement and such initial
Borrowing Date all the representations in this Agreement are true and
correct (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true and correct as of such date) and no Default or Unmatured Default
has occurred and is continuing;
(iii) The written opinions of the Borrowers' and Guarantors'
General Counsel, Robert H. Wolfe, and of the Company's Dutch counsel,
DeBrauw Blackstone Westbroek, addressed to the Administrative Agent and
the Lenders, in substantially the forms attached hereto as Exhibit E
and Exhibit E-1, respectively;
(iv) Evidence satisfactory to the Administrative Agent that there
exists no injunction or temporary restraining order which, in the
judgment of the Administrative Agent, would prohibit the making of the
Loans or the consummation of the other transactions contemplated by the
Loan Documents or any litigation seeking such an injunction or
restraining order;
(v) Duly executed copy of the 4-Year Credit Agreement;
(vi) Such other documents as the Administrative Agent or any
Lender or its counsel may have reasonably requested, including, without
limitation, all of the documents reflected on the List of Closing
Documents attached as Exhibit F to this Agreement; and
(vii) Evidence satisfactory to the Administrative Agent that the
Company has paid or caused to be paid to the Administrative Agent and
the Arranger the fees agreed to in the fee letter dated August 2, 2001,
among the Administrative Agent, the Arranger and the Company.
52
62
5.2. Initial Advance to Each New Subsidiary Borrower. No Lender
shall be required to make an Advance hereunder or purchase participations in
Letters of Credit, no Issuing Bank shall be required to issue a Letter of Credit
hereunder, in each case, to a new Subsidiary Borrower added after the Closing
Date unless the Company has furnished or caused to be furnished to the
Administrative Agent with sufficient copies for the Lenders:
(i) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written consent of the Company
at the foot thereof, as contemplated by Section 2.20;
(ii) Copies, certified by the Secretary, Assistant Secretary,
Director or Officer of the Subsidiary Borrower, of its Board of
Directors' resolutions (and/or resolutions of other bodies, if any are
deemed necessary by the Administrative Agent) approving the Assumption
Letter;
(iii) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Officer of the Subsidiary Borrower,
which shall identify by name and title and bear the signature of the
officers of such Subsidiary Borrower authorized to sign the Assumption
Letter and the other documents to be executed and delivered by such
Subsidiary Borrower hereunder, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Company;
(iv) An opinion of counsel to such Subsidiary Borrower,
substantially in the form of Exhibit E-2 hereto or, in the case of a
new non-domestic Subsidiary Borrower, in a form reasonably acceptable
to the Administrative Agent;
(v) Guaranty documentation, if applicable, from such Subsidiary
Borrower in form and substance acceptable to the Administrative Agent
as required pursuant to Section 7.2(K);
(vi) With respect to the initial Advance or any Swing Line Loan
made to any Subsidiary Borrower organized under the laws of England and
Wales (or any other jurisdiction where filings are required in order
for amounts payable under this Agreement to be exempt from applicable
withholding or other taxes), the Administrative Agent shall have
received originals and/or copies, as applicable, of all filings
required to be made and such other evidence as the Administrative Agent
may require establishing to the Administrative Agent's satisfaction
that each Lender, Swing Line Bank and Issuing Bank is entitled to
receive payments under the Loan Documents without deduction or
withholding of any English (or other applicable jurisdictions) taxes or
with such deductions and withholding of English (or other applicable
jurisdictions) taxes as may be acceptable to the Administrative Agent.
5.3. Each Advance and Letter of Credit. The Lenders shall not be
required to make any Advance, or convert or continue any Advance, or issue any
Letter of Credit and no Swing Line Bank shall be required to make any Swing Line
Loans hereunder, unless on the
53
63
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(A) No Defaults. There exists no Default or Unmatured Default;
(B) Representations and Warranties. All of the representations
and warranties contained in Article VI are true and correct as of such
Borrowing Date (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true and correct as of such date) except for changes in the Schedules
to this Agreement reflecting transactions permitted by or not in
violation of this Agreement; and
(C) Maximum Amounts. The Revolving Credit Obligations do not, and
after making such proposed Advance or issuing such Letter of Credit
would not, exceed the Aggregate Commitment.
Each Borrowing/Election Notice with respect to each such Advance and
the letter of credit application with respect to each Letter of Credit shall
constitute a representation and warranty by the Borrowers that the conditions
contained in Sections 5.3(A), (B) and (C) have been satisfied. Any Lender may
require a duly completed officer's certificate in substantially the form of
Exhibit G hereto and/or a duly completed compliance certificate in substantially
the form of Exhibit H hereto as a condition to making an Advance.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to
enter into this Agreement and to make the Loans and the other financial
accommodations to the Borrowers and to issue the Letters of Credit described
herein, the Company represents and warrants as follows to each Lender and the
Administrative Agent as of the Closing Date, giving effect to the consummation
of the transactions contemplated by the Transaction Documents on the Closing
Date, and thereafter on each date as required by Section 5.2 and 5.3:
6.1. Organization; Corporate Powers. The Company and each of its
Subsidiaries (i) is a corporation, limited liability company, partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified to do business as a
foreign entity and is in good standing under the laws of each jurisdiction in
which failure to be so qualified and in good standing could not reasonably be
expected to have a Material Adverse Effect, and (iii) has all requisite power
and authority to own, operate and encumber its property and to conduct its
business as presently conducted and as proposed to be conducted
6.2. Authority, Execution and Delivery; Transaction Documents.
(A) Power and Authority. Each of the Loan Parties has the
requisite power and authority to execute, deliver and perform each of
the Transaction Documents which are to be executed by it as required by
this Agreement and the other Transaction Documents and (ii) to file the
Transaction Documents which must be filed by it as
54
64
required by this Agreement, the other Loan Documents or otherwise with
any Governmental Authority.
(B) Execution and Delivery. The execution, delivery, performance
and filing, as the case may be, of each of the Transaction Documents as
required by this Agreement or otherwise and to which any Loan Party is
party, and the consummation of the transactions contemplated thereby,
have been duly approved by the respective boards of directors and, if
necessary, the shareholders of the applicable Loan Parties, and such
approvals have not been rescinded.
(C) Transaction Documents. Each of the Transaction Documents to
which the Company or any of its Subsidiaries is a party has been duly
executed, delivered or filed, as the case may be, by it and constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally), is in full force and effect and no
material term or condition thereof has been amended, modified or waived
from the terms and conditions contained in the Transaction Documents
delivered to the Administrative Agent pursuant to Section 5.1 without
the prior written consent of the Administrative Agent, and the Company
and its Subsidiaries have, and, to the best of the Company's and its
Subsidiaries' knowledge, all other parties thereto have, performed and
complied with all the terms, provisions, agreements and conditions set
forth therein and required to be performed or complied with by such
parties, and no unmatured default, default or breach of any covenant by
any such party exists thereunder.
6.3. No Conflict; Governmental Consents. The execution, delivery
and performance of each of the Transaction Documents to which each of the Loan
Parties is a party do not and will not (i) conflict with the certificate or
articles of incorporation or by-laws of such Loan Party, (ii) constitute a
tortious interference with any Contractual Obligation of any Person or conflict
with, result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any Requirement of Law or Contractual Obligation
of any such Loan Party, or require termination of any Contractual Obligation,
(iii) result in or require the creation or imposition of any Lien whatsoever
upon any of the property or assets of the Company or any of its Subsidiaries,
other than Liens permitted or created by the Transaction Documents, or (iv)
require any approval of any Loan Party's Board of Directors or shareholders
except such as have been obtained. The execution, delivery and performance of
each of the Transaction Documents to which the Company or any of its
Subsidiaries is a party do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any
Governmental Authority, except filings, consents or notices which have been
made, obtained or given, or which, if not made, obtained or given, individually
or in the aggregate could not reasonably be expected to have a Material Adverse
Effect.
6.4. Financial Statements.
(A) Pro Forma Financials. The combined pro forma balance sheet,
income statements and statements of cash flow of the Company and its
Subsidiaries (after giving effect to the H-B Acquisition), copies of
which are attached hereto as Schedule 6.4 to this
55
65
Agreement, present on a pro forma basis the financial condition of the
Company and such Subsidiaries as of such date, and demonstrate that the
Company and its Subsidiaries can repay their debts and satisfy their
other obligations as and when due, and can comply with the requirements
of this Agreement. The projections and assumptions expressed in the pro
forma financials referenced in this Section 6.4(A) were prepared in
good faith and represent management's opinion based on the information
available to the Company at the time so furnished and, since the
preparation thereof and up to the Closing Date, there has occurred no
change in the business, financial condition, operations, or prospects
of the Company or any of its Subsidiaries, or the Company and its
Subsidiaries taken as a whole, or Howe-Baker or Howe-Baker and its
Subsidiaries taken as a whole which has had or could reasonably be
expected to have a Material Adverse Effect.
(B) Audited Financial Statements. Complete and accurate copies of
the audited financial statements and the audit reports related thereto
of the Company and its consolidated Subsidiaries as at December 31,
2000 have been delivered to the Administrative Agent and such financial
statements were prepared in accordance with generally accepted
accounting principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and
operations of the Company and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
(C) Interim Financial Statements. Complete and accurate copies of
the unaudited financial statements of the Company and its consolidated
Subsidiaries as at June 30, 2001 have been delivered to the
Administrative Agent and such financial statements were prepared in
accordance with generally accepted accounting principles in effect on
the date such statements were prepared and fairly present the
consolidated financial condition and operations of the Company and its
Subsidiaries at such date and the consolidated results of their
operations for the period then ended, subject to normal year-end audit
adjustments.
6.5. No Material Adverse Change. Since December 31, 2000, there
has occurred no change in the business, properties, condition
(financial or otherwise), performance, results of operations or
prospects of the Company, any other Borrower or the Company and its
Subsidiaries taken as a whole, or any other event which has had or
could reasonably be expected to have a Material Adverse Effect.
6.6. Taxes.
(A) Tax Examinations. All deficiencies which have been asserted
against the Company or any of the Company's Subsidiaries as a result of
any federal, state, local or foreign tax examination for each taxable
year in respect of which an examination has been conducted have been
fully paid or finally settled or are being contested in good faith, and
no issue has been raised by any taxing authority in any such
examination which, by application of similar principles, could
reasonably be expected to result in assertion by such taxing authority
of a material deficiency for any other year not so examined which has
not been reserved for in the Company's consolidated financial
statements to the extent, if any, required by Agreement Accounting
Principles. Except as
56
66
permitted pursuant to Section 7.2(D), neither the Company nor any of
the Company's Subsidiaries anticipates any tax liability with respect
to the years which have not been closed pursuant to applicable law.
(B) Payment of Taxes. All material tax returns and reports of the
Company and its Subsidiaries required to be filed have been timely
filed, and all taxes, assessments, fees and other governmental charges
thereupon and upon their respective property, assets, income and
franchises which are shown in such returns or reports to be due and
payable have been paid except those items which are being contested in
good faith and have been reserved for in accordance with Agreement
Accounting Principles. The Company has no knowledge of any proposed tax
assessment against it or any of its Subsidiaries that will have or
could reasonably be expected to have a Material Adverse Effect.
6.7. Litigation; Loss Contingencies and Violations. There is no
action, suit, proceeding, arbitration or, to the Company's knowledge,
investigation before or by any Governmental Authority or private arbitrator
pending or, to the Company's knowledge, threatened against or affecting the
Company or any of its Subsidiaries or any property of any of them, including,
without limitation, any such actions, suits, proceedings, arbitrations and
investigations disclosed in the Company's SEC Forms 10-K and 10-Q (the
"Disclosed Litigation"), which (i) challenges the validity or the enforceability
of any material provision of the Transaction Documents or (ii) has or could
reasonably be expected to have a Material Adverse Effect. There is no material
loss contingency within the meaning of Agreement Accounting Principles which has
not been reflected in the consolidated financial statements of the Company
prepared and delivered pursuant to Section 7.1(A) for the fiscal period during
which such material loss contingency was incurred. Neither the Company nor any
of its Subsidiaries is (A) in violation of any applicable Requirements of Law
which violation could reasonably be expected to have a Material Adverse Effect,
or (B) subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or regulation
of any court or Governmental Authority which could reasonably be expected to
have a Material Adverse Effect.
6.8. Subsidiaries. Schedule 6.8 to this Agreement (i) contains a
description of the corporate structure of the Company, its Subsidiaries and any
other Person in which the Company or any of its Subsidiaries holds an Equity
Interest; and (ii) accurately sets forth (A) the correct legal name, the
jurisdiction of incorporation and the jurisdictions in which each of the Company
and the direct and indirect Subsidiaries of the Company are qualified to
transact business as a foreign corporation, (B) the authorized, issued and
outstanding shares of each class of Capital Stock of each of the Company's
Foreign Subsidiaries and the owners of such shares (both as of the Closing Date
and on a fully-diluted basis), and (C) a summary of the direct and indirect
partnership, joint venture, or other Equity Interests, if any, of the Company
and each of its Subsidiaries in any Person. Except as disclosed on Schedule 6.8,
none of the issued and outstanding Capital Stock of the Company's Foreign
Subsidiaries is subject to any vesting, redemption, or repurchase agreement, and
there are no warrants or options outstanding with respect to such Capital Stock.
The outstanding Capital Stock of each of the Company's Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and is not Margin
Stock.
57
67
6.9. ERISA. No Benefit Plan has incurred any material accumulated
funding deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the
Code) whether or not waived. Neither the Company nor any member of the
Controlled Group has incurred any material liability to the PBGC which remains
outstanding other than the payment of premiums. As of the last day of the most
recent prior plan year, the market value of assets under each Benefit Plan,
other than any Multiemployer Plan, was not by a material amount less than the
present value of benefit liabilities thereunder (determined in accordance with
the actuarial valuation assumptions described therein). Neither the Company nor
any member of the Controlled Group has (i) failed to make a required
contribution or payment to a Multiemployer Plan of a material amount or (ii)
incurred a material complete or partial withdrawal under Section 4203 or Section
4205 of ERISA from a Multiemployer Plan. Neither the Company nor any member of
the Controlled Group has failed to make an installment or any other payment of a
material amount required under Section 412 of the Code on or before the due date
for such installment or other payment. Each Plan, Foreign Employee Benefit Plan
and Non-ERISA Commitment complies in all material respects in form, and has been
administered in all material respects in accordance with its terms and in
accordance with all applicable laws and regulations, including but not limited
to ERISA and the Code. There have been no and there is no prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code with respect to any Plan
for which a statutory or administrative exemption does not exist which could
reasonably be expected to subject the Company or any of is Subsidiaries to
material liability. Neither the Company nor any member of the Controlled Group
has taken or failed to take any action which would constitute or result in a
Termination Event, which action or inaction could reasonably be expected to
subject the Company or any of its Subsidiaries to material liability. Neither
the Company nor any member of the Controlled Group is subject to any material
liability under, or has any potential material liability under, Section 4063,
4064, 4069, 4204 or 4212(c) of ERISA. The present value of the aggregate
liabilities to provide all of the accrued benefits under any Foreign Pension
Plan do not exceed the current fair market value of the assets held in trust or
other funding vehicle for such plan by a material amount. With respect to any
Foreign Employee Benefit Plan other than a Foreign Pension Plan, reasonable
reserves have been established in accordance with prudent business practice or
where required by ordinary accounting practices in the jurisdiction in which
such plan is maintained. Neither the Company nor any other member of the
Controlled Group has taken or failed to take any action, nor has any event
occurred, with respect to any "employee benefit plan" (as defined in Section
3(3) of ERISA) which action, inaction or event could reasonably be expected to
subject the Company or any of its Subsidiaries to material liability. For
purposes of this Section 6.9, "material" means any amount, noncompliance or
other basis for liability which could reasonably be expected to subject the
Company or any of its Subsidiaries to liability, individually or in the
aggregate with each other basis for liability under this Section 6.9, in excess
of $2,000,000.
6.10. Accuracy of Information. The information, exhibits and
reports furnished by or on behalf of the Company and any of its Subsidiaries to
the Administrative Agent or to any Lender in connection with the negotiation of,
or compliance with, the Transaction Documents, the representations and
warranties of the Company and its Subsidiaries contained in the Transaction
Documents, and all certificates and documents delivered to the Administrative
Agent and the Lenders pursuant to the terms thereof, taken as a whole, do not
contain as of the date furnished any untrue statement of a material fact or omit
to state a material fact necessary in
58
68
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
6.11. Securities Activities. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock. Margin Stock constitutes less than 25% of the value of those
assets of the Company and its Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction hereunder.
6.12. Material Agreements. Neither the Company nor any of its
Subsidiaries is a party to any Contractual Obligation or subject to any charter
or other corporate restriction which individually or in the aggregate has had or
could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has received notice or has knowledge that
(i) it is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, or (ii) any condition exists which, with the giving of notice
or the lapse of time or both, would constitute a default with respect to any
such Contractual Obligation, in each case, except where such default or
defaults, if any, individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
6.13. Compliance with Laws. The Company and its Subsidiaries are
in compliance with all Requirements of Law applicable to them and their
respective businesses, in each case where the failure to so comply individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect.
6.14. Assets and Properties. The Company and each of its
Subsidiaries has good and marketable title to all of its material assets and
properties (tangible and intangible, real or personal) owned by it or a valid
leasehold interest in all of its material leased assets (except insofar as
marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free and
clear of all Liens, except Liens permitted under Section 7.3(C). Substantially
all of the assets and properties owned by, leased to or used by the Company
and/or each such Subsidiary of the Company are in adequate operating condition
and repair, ordinary wear and tear excepted. Neither this Agreement nor any
other Transaction Document, nor any transaction contemplated under any such
agreement, will affect any right, title or interest of the Company or such
Subsidiary in and to any of such assets in a manner that could reasonably be
expected to have a Material Adverse Effect.
6.15. Statutory Indebtedness Restrictions. Neither the Company nor
any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Investment Company Act
of 1940, or any other foreign, federal or state statute or regulation which
limits its ability to incur indebtedness or its ability to consummate the
transactions contemplated hereby.
6.16. Insurance. The insurance policies and programs in effect
with respect to the respective properties, assets, liabilities and business of
the Company and its Subsidiaries reflect coverage that is reasonably consistent
with prudent industry practice.
59
69
6.17. Environmental Matters.
(A) Environmental Representations. Except as disclosed on
Schedule 6.17 to this Agreement:
(i) the operations of the Company and its Subsidiaries comply in
all material respects with Environmental, Health or Safety
Requirements of Law;
(ii) the Company and its Subsidiaries have all material permits,
licenses or other authorizations required under Environmental,
Health or Safety Requirements of Law and are in material compliance
with such permits;
(iii) neither the Company, any of its Subsidiaries nor any of
their respective present property or operations, or, to the
Company's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the
subject of, any investigation known to the Company or any of its
Subsidiaries, any judicial or administrative proceeding, order,
judgment, decree, settlement or other agreement respecting: (A) any
material violation of Environmental, Health or Safety Requirements
of Law; (B) any remedial action; or (C) any material claims or
liabilities arising from the Release or threatened Release of a
Contaminant into the environment;
(iv) there is not now, nor to the Company's or any of its
Subsidiaries' knowledge has there ever been, on or in the property
of the Company or any of its Subsidiaries any landfill, waste pile,
underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind, any
polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or any asbestos containing
material; and
(v) neither the Company nor any of its Subsidiaries has any
material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
(B) Materiality. For purposes of this Section 6.17 "material"
means any noncompliance or basis for liability which could reasonably
be likely to subject the Company or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of $2,000,000.
6.18. Representations and Warranties of each Subsidiary Borrower.
Each Subsidiary Borrower represents and warrants to the Lenders that:
(A) Organization and Corporate Powers. Such Subsidiary Borrower
(i) is a company duly formed and validly existing and in good standing
under the laws of the state or country of its organization (such
jurisdiction being hereinafter referred to as the "Home Country") and
(ii) has the requisite power and authority to own its property and
assets and to carry on its business substantially as now conducted
except where the failure to have such requisite authority would not
reasonably be expected to have a Material Adverse Effect.
60
70
(B) Binding Effect. Each Loan Document executed by such Subsidiary
Borrower is the legal, valid and binding obligation of such Subsidiary
Borrower enforceable in accordance with its respective terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and general
equitable principles.
(C) No Conflict; Government Consent. Neither the execution and
delivery by such Subsidiary Borrower of the Loan Documents to which it
is a party, nor the consummation by it of the transactions therein
contemplated to be consummated by it, nor compliance by such Subsidiary
Borrower with the provisions thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding
on such Subsidiary Borrower or any of its Subsidiaries or such
Subsidiary Borrower's or any of its Subsidiaries' memoranda or articles
of association or the provisions of any indenture, instrument or
agreement to which such Subsidiary Borrower or any of its Subsidiaries
is a party or is subject, or by which it, or its property, is bound, or
conflict with or constitute a default thereunder, or result in the
creation or imposition of any lien in, of or on the property of such
Subsidiary Borrower or any of its Subsidiaries pursuant to the terms of
any such indenture, instrument or agreement in any such case which
violation, conflict, default, creation or imposition would not
reasonably be expected to have a Material Adverse Effect. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any Governmental
Authority is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality, validity,
binding effect or enforceability of, any of the Loan Documents, except
for such as have been obtained or made.
(D) Filing. To ensure the enforceability or admissibility in
evidence of this Agreement and each Loan Document to which such
Subsidiary Borrower is a party in its Home Country, it is not necessary
that this Agreement or any other Loan Document to which such Subsidiary
Borrower is a party or any other document be filed or recorded with any
court or other authority in its Home Country or that any stamp or
similar tax be paid to or in respect of this Agreement or any other
Loan Document of such Subsidiary Borrower. The qualification by any
Lender or the Administrative Agent for admission to do business under
the laws of such Subsidiary Borrower's Home Country does not constitute
a condition to, and the failure to so qualify does not affect, the
exercise by any Lender or the Administrative Agent of any right,
privilege, or remedy afforded to any Lender or the Administrative Agent
in connection with the Loan Documents to which such Subsidiary Borrower
is a party or the enforcement of any such right, privilege, or remedy
against Subsidiary Borrower. The performance by any Lender or the
Administrative Agent of any action required or permitted under the Loan
Documents will not (i) violate any law or regulation of such Subsidiary
Borrower's Home Country or any political subdivision thereof, (ii)
result in any tax or other monetary liability to such party pursuant to
the laws of such Subsidiary Borrower's Home Country or political
subdivision or taxing authority thereof (provided that, should any such
action result in any such tax or other monetary liability to the Lender
or the Administrative Agent, the Borrowers hereby agree to indemnify
such Lender or the Administrative Agent, as the case may be, against
(x) any such tax or other monetary liability and (y) any increase in
any tax or other monetary liability which results from such action by
such Lender or the
61
71
Administrative Agent and, to the extent the Borrowers make such
indemnification, the incurrence of such liability by the Administrative
Agent or any Lender will not constitute a Default) or (iii) violate any
rule or regulation of any federation or organization or similar entity
of which the such Subsidiary Borrower's Home Country is a member.
(E) No Immunity. Neither such Subsidiary Borrower nor any of its
assets is entitled to immunity from suit, execution, attachment or
other legal process. Such Subsidiary Borrower's execution and delivery
of the Loan Documents to which it is a party constitute, and the
exercise of its rights and performance of and compliance with its
obligations under such Loan Documents will constitute, private and
commercial acts done and performed for private and commercial purposes.
(F) Application of Representations and Warranties. It is
understood and agreed by the parties hereto that the representations
and warranties of each Subsidiary Borrower in this Section 6.18 shall
only be applicable to such Subsidiary Borrower on and after the date of
its execution of an Assumption Letter.
6.19. Benefits. Each of the Company and its Subsidiaries will
benefit from the financing arrangement established by this Agreement. The
Administrative Agent and the Lenders have stated and the Company acknowledges
that, but for the agreement by each of the Subsidiary Guarantors to execute and
deliver the Subsidiary Guaranty, the Administrative Agent and the Lenders would
not have made available the credit facilities established hereby on the terms
set forth herein.
6.20. Solvency. After giving effect to (i) the Loans to be made on
the Closing Date or such other date as Loans requested hereunder are made, (ii)
the other transactions contemplated by this Agreement and the other Transaction
Documents and (iii) the payment and accrual of all transaction costs with
respect to the foregoing, the Company and its Subsidiaries taken as a whole are
Solvent.
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any Commitments
are outstanding and thereafter until all of the Termination Conditions have been
satisfied, unless the Required Lenders shall otherwise give prior written
consent:
7.1. Reporting. The Company shall:
(A) Financial Reporting. Furnish to the Administrative Agent
(with sufficient copies for each of the Lenders):
(i) Quarterly Reports. As soon as practicable and in any event
within sixty (60) days after the end of the first three quarterly
periods of each of its fiscal years, the consolidated balance sheet
of the Company and its Subsidiaries as at the end of such period and
the related consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal quarter and for the
period from the beginning of the then current fiscal year to the end
of such fiscal quarter, certified by a Financial Officer of the
Company on behalf of the Company and its Subsidiaries as
62
72
fairly presenting the consolidated financial position of the Company
and its Subsidiaries as at the dates indicated and the results of
their operations and cash flows for the periods indicated in
accordance with Agreement Accounting Principles, subject to normal
year-end audit adjustments and the absence of footnotes.
(ii) Annual Reports. As soon as practicable, and in any event
within one hundred twenty (120) days after the end of each fiscal
year, (a) the consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash
flows of the Company and its Subsidiaries for such fiscal year, and
in comparative form the corresponding figures for the previous
fiscal year along with consolidating schedules in form and substance
sufficient to calculate the financial covenants set forth in Section
7.4, and (b) an audit report on the consolidated financial
statements (but not the consolidating financial statements or
schedules) listed in clause (a) hereof of independent certified
public accountants of recognized national standing, which audit
report shall be unqualified and shall state that such financial
statements fairly present the consolidated financial position of the
Company and its Subsidiaries as at the dates indicated and the
results of their operations and cash flows for the periods indicated
in conformity with Agreement Accounting Principles and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally
accepted auditing standards. The deliveries made pursuant to this
clause (ii) shall be accompanied by (x) any management letter
prepared by the above-referenced accountants, and (y) a certificate
of such accountants that, in the course of their examination
necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Unmatured Default, or if, in
the opinion of such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof.
(iii) Officer's Certificate. Together with each delivery of any
financial statement (a) pursuant to clauses (i) or (ii) of this
Section 7.1(A), an Officer's Certificate of the Company,
substantially in the form of Exhibit G attached hereto and made a
part hereof, stating that (x) the representations and warranties of
the Company contained in Article VI hereof shall have been true and
correct (unless such representation or warranty is made as of a
specific date, in which case, such representation and warranty shall
be true and correct as of such date) at all times during the period
covered by such financial statements and as of the date of such
Officer's Certificate and (y) as of the date of such Officer's
Certificate no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status
thereof and (b) pursuant to clauses (i) and (ii) of this Section
7.1(A), a compliance certificate, substantially in the form of
Exhibit H attached hereto and made a part hereof, signed by an
Authorized Officer, which demonstrates compliance with the financial
tests contained in Section 7.3 and Section 7.4, and which calculates
the Leverage Ratio for purposes of determining the then Applicable
Floating Rate Margin, Applicable Eurodollar Margin, Applicable L/C
Fee Percentage and Applicable Commitment Fee Percentage.
63
73
(iv) Budgets; Business Plans; Financial Projections. As soon as
practicable and in any event not later than thirty (30) days after
the beginning of each fiscal year commencing with the fiscal year
beginning January 1, 2001, a copy of the plan and forecast
(including a projected balance sheet, income statement and a
statement of cash flow) of the Company and its Subsidiaries for the
upcoming three (3) fiscal years prepared in such detail as shall be
reasonably satisfactory to the Administrative Agent.
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer,
controller, chief legal officer or general counsel of the Company
obtaining knowledge (i) of any condition or event which constitutes a
Default or Unmatured Default, or becoming aware that any Lender or
Administrative Agent has given any written notice with respect to a
claimed Default or Unmatured Default under this Agreement, or (ii) that
any Person has given any written notice to the Company or any
Subsidiary of the Company or taken any other action with respect to a
claimed default or event or condition of the type referred to in
Section 8.1(E), or (iii) that any other development, financial or
otherwise, which could reasonably be expected to have a Material
Adverse Effect has occurred, the Company shall deliver to the
Administrative Agent and the Lenders an Officer's Certificate
specifying (a) the nature and period of existence of any such claimed
default, Default, Unmatured Default, condition or event, (b) the notice
given or action taken by such Person in connection therewith, and (c)
what action the Company has taken, is taking and proposes to take with
respect thereto.
(C) Lawsuits.
(i) Promptly upon the Company obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration, by or before any
Governmental Authority, against or affecting the Company or any of
its Subsidiaries or any property of the Company or any of its
Subsidiaries not previously disclosed pursuant to Section 6.7, which
action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings,
governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Company's
reasonable judgment, the Company and/or any of its Subsidiaries to
liability in an amount aggregating $2,000,000 or more, give written
notice thereof to the Administrative Agent and the Lenders and
provide such other information as may be reasonably available to
enable each Lender and the Administrative Agent and its counsel to
evaluate such matters; and
(ii) Promptly upon the Company or any of its Subsidiaries
obtaining knowledge of any material adverse developments with
respect to any of the Disclosed Litigation, which Disclosed
Litigation exposes, in the Company's reasonable judgment, the
Company and/or any of its Subsidiaries to liability in an amount
aggregating $2,000,000 or more, give written notice thereof to the
Administrative Agent and the Lenders and provide such other
information as may be reasonably
64
74
available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and
(iii) In addition to the requirements set forth in clauses (i) and
(ii) of this Section 7.1(C), upon request of the Administrative
Agent or the Required Lenders, promptly give written notice of the
status of any Disclosed Litigation or any action, suit, proceeding,
governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other
information as may be reasonably available to it that would not
jeopardize any attorney-client privilege by disclosure to the
Lenders to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters.
(D) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at the Company's expense, the
following information and notices as soon as reasonably possible, and
in any event:
(i) (a) within ten (10) Business Days after the Company obtains
knowledge that a Termination Event has occurred, a written statement
of a Financial Officer of the Company describing such Termination
Event and the action, if any, which the Company has taken, is taking
or proposes to take with respect thereto, and when known, any action
taken or threatened by the IRS, DOL or PBGC with respect thereto and
(b) within ten (10) Business Days after any member of the Controlled
Group obtains knowledge that a Termination Event has occurred which
could reasonably be expected to subject the Company or any of its
Subsidiaries to liability in excess of $2,000,000, a written
statement of a Financial Officer or designee of the Company
describing such Termination Event and the action, if any, which the
member of the Controlled Group has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(ii) within ten (10) Business Days after the filing of any
funding waiver request with the IRS, a copy of such funding waiver
request and thereafter all communications received by the Company or
a member of the Controlled Group with respect to such request within
ten (10) Business Days such communication is received; and
(iii) within ten (10) Business Days after the Company or any
member of the Controlled Group knows or has reason to know that (a)
a Multiemployer Plan has been terminated, (b) the administrator or
plan sponsor of a Multiemployer Plan intends to terminate a
Multiemployer Plan, or (c) the PBGC has instituted or will institute
proceedings under Section 4042 of ERISA to terminate a Multiemployer
Plan, a notice describing such matter.
For purposes of this Section 7.1(D), the Company, any of its
Subsidiaries and any member of the Controlled Group shall be deemed to
know all facts known by the administrator of any Plan of which the
Company or any member of the Controlled Group
65
75
or such Subsidiary is the plan sponsor.
(E) Other Indebtedness. Deliver to the Administrative Agent (i) a
copy of each regular report, notice or communication regarding
potential or actual defaults or amortization events (including any
accompanying officer's certificate) delivered by or on behalf of the
Company to the holders of Material Indebtedness pursuant to the terms
of the agreements governing such Material Indebtedness, such delivery
to be made at the same time and by the same means as such notice of
default is delivered to such holders, and (ii) a copy of each notice or
other communication received by the Company from the holders of
Material Indebtedness regarding potential or actual defaults pursuant
to the terms of such Material Indebtedness, such delivery to be made
promptly after such notice or other communication is received by the
Company or any of its Subsidiaries.
(F) Other Reports. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of (i) all financial
statements, reports and notices, if any, sent or made available
generally by the Company to their securities holders or filed with the
Commission by the Company, (ii) all press releases made available
generally by the Company or any of the Company's Subsidiaries to the
public concerning material developments in the business of the Company
or any such Subsidiary and (iii) all notifications received from the
Commission by the Company or its Subsidiaries pursuant to the
Securities Exchange Act of 1934 and the rules promulgated thereunder.
(G) Environmental Notices. As soon as possible and in any event
within ten (10) days after receipt by the Company, deliver to the
Administrative Agent and the Lenders a copy of (i) any notice or claim
to the effect that the Company or any of its Subsidiaries is or may be
liable to any Person as a result of the Release by the Company, any of
its Subsidiaries, or any other Person of any Contaminant into the
environment, and (ii) any notice alleging any violation of any
Environmental, Health or Safety Requirements of Law by the Company or
any of its Subsidiaries if, in either case, such notice or claim
relates to an event which could reasonably be expected to subject the
Company and its Subsidiaries to liability individually or in the
aggregate in excess of $2,000,000.
(H) Other Information. Promptly upon receiving a request therefor
from the Administrative Agent, prepare and deliver to the
Administrative Agent and the Lenders such other information with
respect to the Company, any of its Subsidiaries, as from time to time
may be reasonably requested by the Administrative Agent.
7.2. Affirmative Covenants.
(A) Existence, Etc. The Company shall and, except as permitted
pursuant to Section 7.3(H), shall cause each of its Subsidiaries to, at
all times maintain its existence and preserve and keep, or cause to be
preserved and kept, in full force and effect its rights and franchises
material to its businesses.
(B) Corporate Powers; Conduct of Business. The Company shall, and
shall cause each of its Subsidiaries to, qualify and remain qualified
to do business in each
66
76
jurisdiction in which the nature of its business requires it to be so
qualified and where the failure to be so qualified will have or could
reasonably be expected to have a Material Adverse Effect. The Company
will, and will cause each Subsidiary to, carry on and conduct its
business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted.
(C) Compliance with Laws, Etc. The Company shall, and shall cause
its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business,
properties, assets or operations of such Person, and (b) obtain as
needed all permits necessary for its operations and maintain such
permits in good standing unless failure to comply or obtain such
permits could not reasonably be expected to have a Material Adverse
Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Company
shall pay, and cause each of its Subsidiaries to pay, (i) all taxes,
assessments and other governmental charges imposed upon it or on any of
its properties or assets or in respect of any of its franchises,
business, income or property before any penalty or interest accrues
thereon, and (ii) all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums which have become due
and payable and which by law have or may become a Lien (other than a
Lien permitted by Section 7.3(C)) upon any of the Company's or such
Subsidiary's property or assets, prior to the time when any penalty or
fine shall be incurred with respect thereto; provided, however, that no
such taxes, assessments and governmental charges referred to in clause
(i) above or claims referred to in clause (ii) above (and interest,
penalties or fines relating thereto) need be paid if being contested in
good faith by appropriate proceedings diligently instituted and
conducted and if such reserve or other appropriate provision, if any,
as shall be required in conformity with Agreement Accounting Principles
shall have been made therefor.
(E) Insurance. The Company shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in
full force and effect, insurance policies and programs, with such
deductibles or self-insurance amounts as reflect coverage that is
reasonably consistent with prudent industry practice as determined by
the Company.
(F) Inspection of Property; Books and Records; Discussions. The
Company shall permit and cause each of its Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative
Agent or any Lender to visit and inspect any of the properties of the
Company or any of its Subsidiaries, to examine their respective
financial and accounting records and other material data relating to
their respective businesses or the transactions contemplated hereby
(including, without limitation, in connection with environmental
compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers and independent certified
public accountants, all upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably
requested (provided that an officer of the Company or any of its
Subsidiaries may, if it so desires, be present at and participate in
any such discussion). The Company shall keep and maintain, and cause
each of its Subsidiaries to keep and maintain, in all material
respects, proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be
67
77
made of all dealings and transactions in relation to their respective
businesses and activities. If a Default has occurred and is continuing,
the Company, upon the Administrative Agent's request, shall turn over
copies of any such records to the Administrative Agent or its
representatives.
(G) ERISA Compliance. The Company shall, and shall cause each of
its Subsidiaries to, establish, maintain and operate all Plans to
comply in all material respects with the provisions of ERISA and shall
operate all Plans to comply in all material respects with the
applicable provisions of the Code, all other applicable laws, and the
regulations and interpretations thereunder and the respective
requirements of the governing documents for such Plans, except for any
noncompliance which, individually or in the aggregate, could not
reasonably be expected to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate, in excess
of $5,000,000.
(H) Maintenance of Property. The Company shall cause all property
used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and shall cause
to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 7.2(H) shall prevent the Company
or any of its Subsidiaries from discontinuing the operation or
maintenance of any of such property if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material
respect to the Administrative Agent or the Lenders.
(I) Environmental Compliance. The Company and its Subsidiaries
shall comply with all Environmental, Health or Safety Requirements of
Law, except where noncompliance will not have or is not reasonably
likely to subject the Company or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $5,000,000.
(J) Use of Proceeds. The Borrowers shall use the proceeds of the
Revolving Loans to provide funds for general corporate purposes of the
Company and its Subsidiaries, including, without limitation, to
refinance certain existing debt, for working capital purposes and to
finance Permitted Acquisitions. The Company will not, nor will they
permit any Subsidiary to, use any of the proceeds of the Loans to
purchase or carry any Margin Stock or to make any Acquisition, other
than a Permitted Acquisition pursuant to Section 7.3(F).
(K) Subsidiary Guarantors.
(i) New Subsidiaries. The Company shall cause each New Subsidiary
that is, at any time, a Material Subsidiary (other than any Excluded
Foreign Subsidiary) and each other Subsidiary as is necessary to
remain in compliance with the terms of Section 7.3(Q), to deliver to
the Administrative Agent an executed Guarantor Agreement or an
executed supplement to become a Subsidiary Guarantor under any
68
78
Guarantor Agreement in the form of the supplement attached thereto
(a "Supplement") and appropriate corporate resolutions, opinions and
other documentation in form and substance reasonably satisfactory to
the Administrative Agent, such Supplement and other documentation to
be delivered to the Administrative Agent as promptly as possible
upon the creation, acquisition of or capitalization thereof or if
otherwise necessary to remain in compliance with Section 7.3(Q), but
in any event within thirty (30) days of such creation, acquisition
or capitalization.
(ii) Additional Material Subsidiaries. If any consolidated
Subsidiary of the Company (other than a New Subsidiary to the extent
addressed in Section 7.2(K)(i)) becomes a Material Subsidiary (other
than an Excluded Foreign Subsidiary), the Company shall cause any
such Material Subsidiary to deliver to the Administrative Agent an
executed Supplement to become a Subsidiary Guarantor and appropriate
corporate resolutions, opinions and other documentation in form and
substance reasonably satisfactory to the Administrative Agent in
connection therewith, such Supplement and other documentation to be
delivered to the Administrative Agent as promptly as possible but in
any event within thirty (30) days following the date on which such
consolidated Subsidiary became a Material Subsidiary.
(iii) Other Required Guarantors. If at any time any Subsidiary of
the Company which is not a Subsidiary Guarantor guaranties any
Indebtedness of the Company other than the Indebtedness hereunder,
the Company shall cause such Subsidiary to deliver to the
Administrative Agent an executed Supplement to become a Subsidiary
Guarantor and appropriate corporate resolutions, opinions and other
documentation in form and substance reasonably satisfactory to the
Administrative Agent in connection therewith, such Supplement and
other documentation to be delivered to the Administrative Agent
concurrently with the delivery of the guaranty of such other
Indebtedness.
(iv) Additional Excluded Foreign Subsidiaries. In the event any
Subsidiary otherwise required to become a Guarantor under paragraphs
(ii) or (iii) above would cause the Company adverse tax consequences
if it were to become a Guarantor or is restricted from becoming a
Guarantor as a result of domestic laws or otherwise, the
Administrative Agent may, in its discretion, permit such Subsidiary
to be treated as an Excluded Foreign Subsidiary, and, accordingly,
such Subsidiary would not be required to become a Guarantor.
(L) Foreign Employee Benefit Compliance. The Company shall, and
shall cause each of its Subsidiaries and each member of its Controlled
Group to, establish, maintain and operate all Foreign Employee Benefit
Plans to comply in all material respects with all laws, regulations and
rules applicable thereto and the respective requirements of the
governing documents for such Plans, except for failures to comply
which, in the aggregate, would not be reasonably likely to subject the
Company or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $5,000,000.
7.3. Negative Covenants.
69
79
(A) Subsidiary Indebtedness. The Company shall not permit any
of its Subsidiaries directly or indirectly to create, incur, assume or
otherwise become or remain directly or indirectly liable with respect
to any Indebtedness, except:
(i) Indebtedness of the Subsidiaries under the Subsidiary
Guaranty;
(ii) Indebtedness in respect of guaranties executed by any
Subsidiary Guarantor with respect to any Indebtedness of the
Company, provided such Indebtedness is not incurred by the Company
in violation of this Agreement;
(iii) Indebtedness in respect of obligations secured by Customary
Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations permitted
by Section 7.3(E);
(v) Unsecured Indebtedness arising from loans (a) from any
Subsidiary to any wholly-owned Subsidiary, or (b) from the Company
to any wholly-owned Subsidiary, or (c) from Lealand Finance Company
B.V., a Netherlands corporation and wholly-owned Subsidiary of the
Borrower, to any Subsidiary (other than any Subsidiary Guarantor) in
an aggregate outstanding principal amount not to exceed $20,000,000
at any time; provided, that if either the Company or any Subsidiary
Guarantor is the obligor on such Indebtedness, such Indebtedness may
only be due either the Company or a Subsidiary Guarantor and shall
be expressly subordinate to the payment in full in cash of the
Obligations on terms satisfactory to the Administrative Agent;
(vi) Indebtedness in respect of Hedging Obligations which are
not prohibited under Section 7.3(O);
(vii) Indebtedness with respect to surety, appeal and performance
bonds and Performance Letters of Credit obtained by any of the
Company's Subsidiaries in the ordinary course of business;
(viii) Indebtedness (a) evidenced by letters of credit in an
aggregate face amount not to exceed at any time $35,000,000 issued
in the ordinary course of business to secure obligations of the
Company and its Subsidiaries under workers' compensation and other
social security programs, and Contingent Obligations with respect to
any such permitted letters of credit, and (b) constituting payment
or other obligations to Praxair or its Affiliates in respect of
employee benefits under the Employee Benefits Disaffiliation
Agreement dated January 1, 1997, between Chicago Bridge & Iron
Company and Praxair, as amended from time to time;
(ix) from and after the date of the H-B Acquisition, the term
indebtedness originally issued by Howe-Baker in favor Air Liquide
and assumed by the Company pursuant to the H-B Acquisition Agreement
in an aggregate principal amount up to $5,700,000; and
70
80
(x) Other Indebtedness, including Permitted Existing
Indebtedness, in addition to that referred to elsewhere in this
Section 7.3(A) incurred by the Company's Subsidiaries; provided that
no Default or Unmatured Default shall have occurred and be
continuing at the date of such incurrence or would result therefrom;
and provided further that the aggregate outstanding amount of all
Indebtedness incurred by the Company's Subsidiaries (other than
Indebtedness incurred pursuant to clauses (i), (ii), (iv), (v),
(vi), (vii), (viii) and (ix) of this Section 7.3(A)) shall not at
any time exceed $20,000,000.
(B) Sales of Assets. Neither the Company nor any of its
Subsidiaries shall consummate any Asset Sale, except (and only so long
as the Company shall have prepaid the outstanding "Obligations" and
reduced the "Aggregate Commitment" in accordance with Sections 2.4(B)
and 2.5(B) of (and as such terms are defined in) the 4-Year Credit
Agreement):
(i) sales of inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business of
equipment that is obsolete, excess or no longer used or useful in
the Company's or its Subsidiaries' businesses;
(iii) transfers of assets between the Company and any wholly-owned
Subsidiary of the Company, or between wholly-owned Subsidiaries of
the Company not otherwise prohibited by this Agreement;
(iv) the Permitted Sale and Leaseback Transactions;
(v) the sale or other disposition of (a) all of the assets
comprising the UltraPure System business operations of the Company,
and (b) all of the assets comprising the XL Technology Systems, Inc.
business unit of the Company, in each case, on terms reasonably
acceptable to the Administrative Agent; and
(vi) other leases, sales or other dispositions of assets if such
transaction (a) is for consideration consisting at least eighty
percent (80%) of cash, (b) is for not less than fair market value
(as determined in good faith by the Company's board of directors),
and (c) involves assets that, together with all other assets of the
Company and its Subsidiaries previously leased, sold or disposed of
(other than pursuant to clauses (i) through (v) above) as permitted
by this Section (x) during the twelve-month period ending with the
month in which any such lease, sale or other disposition occurs, do
not constitute a Substantial Portion of the assets of the Company
and its Subsidiaries and (y) since the Closing Date do not exceed
$30,000,000, in each case when combined with all such other
transactions during such period (each such transaction being valued
at book value).
(C) Liens. Neither the Company nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any
Lien on or with respect to any of their respective property or assets
except:
71
81
(i) Liens, if any, created by the Loan Documents or otherwise
securing the Obligations;
(ii) Liens, if any, created by the "Loan Documents" or otherwise
securing the "Obligations" under (and as such terms are defined in)
the 4-Year Credit Agreement;
(iii) Customary Permitted Liens;
(iv) other Liens, including Permitted Existing Liens, (a)
securing Indebtedness of the Company (other than Indebtedness of the
Company owed to any Subsidiary) and/or (b) securing Indebtedness of
the Company's Subsidiaries as permitted pursuant to Section 7.3(A)
and in an aggregate outstanding amount not to exceed ten percent
(10%) of consolidated assets of the Company and its Subsidiaries at
any time.
In addition, neither the Company nor any of its Subsidiaries shall
become a party to any agreement, note, indenture or other instrument,
or take any other action, which would prohibit the creation of a Lien
on any of its properties or other assets in favor of the Administrative
Agent as collateral for the Obligations; provided that any agreement,
note, indenture or other instrument in connection with purchase money
Indebtedness (including Capitalized Leases) incurred in compliance with
the terms of this Agreement may prohibit the creation of a Lien in
favor of the Administrative Agent and the Lenders on the items of
property obtained with the proceeds of such Indebtedness.
(D) Investments. Except to the extent permitted pursuant to
Section 7.3(F), neither the Company nor any of its Subsidiaries shall
directly or indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater than
the amount thereof on the Closing Date;
(iii) Investments in trade receivables or received in connection
with the bankruptcy or reorganization of suppliers and customers and
in settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by the
Company and its Subsidiaries;
(v) Investments consisting of non-cash consideration from a
sale, assignment, transfer, lease, conveyance or other disposition
of property permitted by Section 7.3(B);
(vi) Investments in any consolidated Subsidiaries (other than
joint ventures);
(vii) Investments in joint ventures and nonconsolidated
Subsidiaries in an aggregate amount not to exceed $10,000,000;
72
82
(viii) Investments constituting Permitted Acquisitions;
(ix) Investments constituting Indebtedness permitted by Section
7.3(A) or Contingent Obligations permitted by Section 7.3(E);
(x) Investments in addition to those referred to elsewhere in
this Section 7.3(D) in an aggregate amount not to exceed $2,000,000.
(E) Contingent Obligations. None of the Company's Subsidiaries
shall directly or indirectly create or become or be liable with respect
to any Contingent Obligation, except: (i) recourse obligations
resulting from endorsement of negotiable instruments for collection in
the ordinary course of business; (ii) Permitted Existing Contingent
Obligations; (iii) Contingent Obligations (x) incurred by any
Subsidiary of the Company to support the performance of bids, tenders,
sales, contracts (other than for the repayment of borrowed money) of
any other Subsidiary of the Company in the ordinary course of business,
and (y) with respect to surety, appeal and performance bonds obtained
by the Company or any Subsidiary in the ordinary course of business
provided that the Indebtedness with respect thereto is permitted
pursuant to Section 7.3(A); and (iv) Contingent Obligations of the
Subsidiary Guarantors under the Subsidiary Guaranty.
(F) Conduct of Business; Subsidiaries; Permitted Acquisitions.
Neither the Company nor any of its Subsidiaries shall engage in any
business other than the businesses engaged in by the Company and its
Subsidiaries on the Closing Date and any business or activities which
are substantially similar, related or incidental thereto or logical
extensions thereof. The Company shall not create, acquire or capitalize
any Subsidiary after the Closing Date unless (i) no Default or
Unmatured Default shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all
of the representations and warranties contained herein shall be true
and correct (unless such representation and warranty is made as of a
specific date, in which case, such representation or warranty shall be
true and correct as of such date); and (iii) after such creation,
acquisition or capitalization the Company and such Subsidiary shall be
in compliance with the terms of Sections 7.2(K) and 7.3(R). Neither the
Company nor its Subsidiaries shall make any Acquisitions, other than
(x) the H-B Acquisition and the PDM Acquisition, and (y) other
Acquisitions meeting the following requirements or otherwise approved
by the Required Lenders (the H-B Acquisition, the PDM Acquisition and
each such other Acquisition constituting a "Permitted Acquisition"):
(a) as of the date of consummation of such Acquisition (before
and after taking into account such Acquisition), all representations
and warranties set forth in this Agreement and the other Loan
Documents shall be true and correct in all material respects as
though made on such date (unless such representation and warranty is
made as of a specific date, in which case, such representation and
warranty shall be true and correct as of such date) and no event
shall have occurred and then be continuing which constitutes a
Default or Unmatured Default under this Agreement;
73
83
(b) prior to the consummation of any such Permitted
Acquisition, the Company shall provide written notification to the
Administrative Agent of all pro forma adjustments to EBITDA to be
made in connection with such Acquisition;
(c) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and approved by the
target company's board of directors (and shareholders, if necessary)
prior to the consummation of the Acquisition;
(d) the businesses being acquired shall be substantially
similar, related or incidental to the businesses or activities
engaged in by the Company and its Subsidiaries on the Closing Date;
(e) prior to such Acquisition and the incurrence of any
Indebtedness permitted by Section 7.3(A) in connection therewith,
the Company shall deliver to the Administrative Agent and the
Lenders a certificate from one of the Authorized Officers,
demonstrating, on a pro forma basis using unadjusted historical
audited or reviewed unaudited financial statements obtained from the
seller(s) in respect of each such Acquisition as if the Acquisition
and such incurrence of Indebtedness had occurred on the first day of
the twelve-month period ending on the last day of the Company's most
recently completed fiscal quarter, the Company would have been in
compliance with the financial covenants in Section 7.4 and not
otherwise in Default; and
(f) without the prior written consent of the Required Lenders,
the purchase price for the Acquisition (including, without
limitation or duplication, cash, Capital Stock, Restricted Payments
and Indebtedness assumed) shall not exceed $5,000,000.
(G) Transactions with Shareholders and Affiliates. Other than
(i) Investments permitted by Section 7.3(D), neither the Company nor
any of its Subsidiaries shall directly or indirectly (a) enter into or
permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of
any service) with, or make loans or advances to any holder or holders
of any of the Equity Interests of the Company, or with any Affiliate of
the Company which is not its Subsidiary of the Company, on terms that
are less favorable to the Company or any of its Subsidiaries, as
applicable, than those that could reasonably be obtained in an arm's
length transaction at the time from Persons who are not such a holder
or Affiliate.
(H) Restriction on Fundamental Changes. Neither the Company nor
any of its Subsidiaries shall enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of,
in one transaction or series of transactions, all or substantially all
of the Company's consolidated business or property (each such
transaction a "Fundamental Change"), whether now or hereafter acquired,
except (i) Fundamental Changes permitted under Sections 7.3(B), 7.3(D)
or 7.3(G), (ii) a Subsidiary of the Company may be merged into or
consolidated with the Company (in which case the Company shall be the
74
84
surviving corporation) or any wholly-owned Subsidiary of the Company
provided such Company owns, directly or indirectly, a percentage of the
equity of the merged entity not less than the percentage it owned of
the Subsidiary prior to such Fundamental Change and if the predecessor
Subsidiary was a Guarantor, the surviving Subsidiary shall be a
Guarantor hereunder, and (iii) any liquidation of any Subsidiary of the
Company, into the Company or another Subsidiary of the Company, as
applicable.
(I) Sales and Leasebacks. Neither the Company nor any of its
Subsidiaries shall become liable, directly, by assumption or by
Contingent Obligation, with respect to any Sale and Leaseback
Transaction (other than the Permitted Sale and Leaseback Transactions),
unless (i) the Company shall have prepaid the outstanding "Advances"
and reduced the "Aggregate Commitment" in accordance with Sections
2.4(B) and 2.5(B) of (and as such terms are defined in) the 4-Year
Credit Agreement, and (ii) the sale involved is not prohibited under
Section 7.3(B), the lease involved is not prohibited under Section
7.3(A) and any related Investment is not prohibited under Section
7.3(D).
(J) Margin Regulations. Neither the Company nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
(K) ERISA. The Company shall not
(i) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with respect
to any Benefit Plan, whether or not waived;
(ii) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in liability of the
Company or any Controlled Group member under Title IV of ERISA;
(iii) fail, or permit any Controlled Group member to fail, to pay
any required installment or any other payment required under Section
412 of the Code on or before the due date for such installment or
other payment; or
(iv) permit any unfunded liabilities with respect to any Foreign
Pension Plan;
except where such transactions, events, circumstances, or failures are
not, individually or in the aggregate, reasonably expected to result in
liability individually or in the aggregate in excess of $5,000,000.
(L) Corporate Documents. Neither the Company nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms
or provisions in any of their respective constituent documents as in
effect on the Closing Date in any manner adverse to the interests of
the Lenders, without the prior written consent of the Required Lenders.
(M) Fiscal Year. Neither the Company nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax
purposes from a period consisting of the 12-month period ending on the
last day of December of each year.
75
85
(N) Subsidiary Covenants. Except as set forth on Schedule
7.3(N), the Company will not, and will not permit any Subsidiary to,
create or otherwise cause to become effective or suffer to exist any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to pay dividends or make any other distribution on its stock
or redemption of its stock, or make any other Restricted Payment, pay
any Indebtedness or other Obligation owed to Company or any other
Subsidiary, make loans or advances or other Investments in the Company
or any other Subsidiary, or sell, transfer or otherwise convey any of
its property to the Company or any other Subsidiary, or merge,
consolidate with or liquidate into the Company or any other Subsidiary.
(O) Hedging Obligations. The Company shall not and shall not
permit any of its Subsidiaries to enter into any Hedging Arrangements
evidencing Hedging Obligations, other than Hedging Arrangements entered
into by the Company or its Subsidiaries pursuant to which the Company
or such Subsidiary has hedged its reasonably estimated interest rate,
foreign currency or commodity exposure, and which are non-speculative
in nature.
(P) Issuance of Disqualified Stock. From and after the Closing
Date, neither the Company, nor any of its Subsidiaries shall issue any
Disqualified Stock. All issued and outstanding Disqualified Stock shall
be treated as Indebtedness for Borrowed Money for all purposes of this
Agreement, and the amount of such deemed Indebtedness shall be the
aggregate amount of the liquidation preference of such Disqualified
Stock.
(Q) Non-Guarantor Subsidiaries. The Company will not at any time
permit the sum of the aggregate assets of all of the Company's
Subsidiaries which are not Subsidiary Guarantors (the non-guarantor
Subsidiaries being referred to collectively as the "Non-Obligor
Subsidiaries") to exceed ten percent (10%) of the Company's and its
Subsidiaries consolidated assets.
(R) Intercompany Indebtedness. The Company shall not create,
incur, assume or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness arising from loans from any
Subsidiary to the Company unless (a) such Indebtedness is unsecured and
(ii) such Indebtedness shall be expressly subordinate to the payment in
full in cash of the Obligators on terms satisfactory to the
Administrative Agent.
7.4. Financial Covenants. The Company shall comply with the
following:
(A) Maximum Leverage Ratio. As of the last day of each fiscal
quarter, the Company shall not permit the ratio (the "Leverage Ratio")
of (i) an amount equal to (a) all Indebtedness for Borrowed Money of
the Company and its Subsidiaries minus (b) the lesser of (x) the excess
over $10,000,000 of the aggregate amount of cash and Eligible Cash
Equivalents of the Company and its Subsidiaries in accounts maintained
at the Agent or any Lender in the United States and which is readily
available to the Company to service Indebtedness and is not held in any
restricted account or otherwise subject to restrictions and (y)
$30,000,000, to (ii) EBITDA to be greater than 2.50 to 1.00 for the
four-quarter period ending on such date.
76
86
The Leverage Ratio shall be calculated, in each case, determined
as of the last day of each fiscal quarter based upon (a) for
Indebtedness for Borrowed Money and cash and Eligible Cash Equivalents
of the Company and its Subsidiaries, Indebtedness for Borrowed Money
and cash and Eligible Cash Equivalents as of the last day of each such
fiscal quarter; and (b) for EBITDA, the actual amount for the
four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using historical audited
and reviewed unaudited financial statements obtained from the seller(s)
in such Permitted Acquisition, broken down by fiscal quarter in the
Company's reasonable judgment and satisfactory to the Administrative
Agent and as reported to the Administrative Agent pursuant to the
provisions of Section 7.3(F)(b).
(B) Minimum Fixed Charge Coverage Ratio. The Company and its
consolidated Subsidiaries shall maintain a ratio ("Fixed Charge
Coverage Ratio"), without duplication, of (i) the sum of (a) EBITDA for
such period, minus (b) Capital Expenditures for such period, plus (c)
Rentals for such period, plus (d) amounts paid during such period with
respect to Capitalized Lease Obligations, plus (e) Restricted Payments
paid in cash during such period to the extent deducted in computing Net
Income for such period, to (ii) the sum of the amounts of (a) cash
Interest Expense during such period, plus (b) cash taxes paid by the
Company and its consolidated Subsidiaries during such period, plus (c)
scheduled amortization during such period of the principal portion of
all Indebtedness for Borrowed Money, plus (d) Restricted Payments
(other than Restricted Payments made to purchase Capital Stock of the
Company from Pitt-Des Moines, Inc. acquired by Pitt-Des Moines, Inc. in
connection with the PDM Acquisition) paid in cash during such period,
plus (e) Rentals for such period, plus (f) amounts paid during such
period with respect to Capitalized Lease Obligations, of at least 1.50
to 1.00 as of the end of each fiscal quarter for the period commencing
with the fiscal quarter ending on June 30, 2001 through the Termination
Date.
The Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter based upon (a) for Indebtedness,
Indebtedness as of the last day of each such fiscal quarter; and (b)
for all other components thereof, the actual amount for the
four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using historical audited
and reviewed unaudited financial statements obtained from the seller(s)
in such Permitted Acquisition, broken down by fiscal quarter in the
Company's reasonable judgment and satisfactory to the Administrative
Agent and as reported to the Administrative Agent pursuant to the
provisions of Section 7.3(F)(b).
(C) Minimum Interest Expense Coverage Ratio. The Company and its
consolidated Subsidiaries shall maintain a ratio (the "Interest Expense
Coverage Ratio") for any applicable period of (i) EBIT for such period
to (ii) Interest Expense for such period of at least 2.00 to 1.00 as of
the end of each fiscal quarter for the period commencing with the
fiscal quarter ending on June 30, 2001 through the Termination Date.
The Interest Expense Coverage Ratio shall be determined as of the
last day of each fiscal quarter based upon the actual amount of EBIT
and Interest Expense for the
77
87
four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using historical audited
and reviewed unaudited financial statements obtained from the seller(s)
in such Permitted Acquisition, broken down by fiscal quarter in the
Company's reasonable judgment and satisfactory to the Administrative
Agent and as reported to the Administrative Agent pursuant to the
provisions of Section 7.3(F)(b).
(D) Minimum Consolidated Net Worth. The Company shall not permit
its Consolidated Net Worth at any time to be less than the sum of (a)
$130,000,000, plus (b) fifty percent (50%) of the sum of Net Income (if
positive) earned in each fiscal quarter, commencing with the fiscal
quarter ending on March 31, 2001, plus (c) the amount, if any, by which
stockholders' equity of the Company is, in accordance with Agreement
Accounting Principles, adjusted from time to time as a result of the
issuance of any Equity Interests except for the adjustment made to
reflect the issuance of Equity Interests in connection with the PDM
Acquisition plus (d) seventy percent (70%) of the amount by which
stockholders' equity of the Company is, in accordance with Agreement
Accounting Principles, adjusted as a result of the issuance of Equity
Interests by the Company in connection with the PDM Acquisition.
ARTICLE VIII: DEFAULTS
8.1. Defaults. Each of the following occurrences shall constitute
a Default under this Agreement:
(A) Failure to Make Payments When Due. The Company or any
Subsidiary Borrower shall (i) fail to pay when due any of the
Obligations consisting of principal with respect to the Loans or (ii)
shall fail to pay within five (5) days of the date when due any of the
other Obligations under this Agreement or the other Loan Documents.
(B) Breach of Certain Covenants. The Company shall fail duly and
punctually to perform or observe any agreement, covenant or obligation
binding on the Company under Sections 7.1(A), 7.2(A), 7.2(F), 7.2(K),
7.3 or 7.4.
(C) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Company or any Subsidiary Borrower
to the Administrative Agent or any Lender herein or by the Company or
any Subsidiary Borrower or any of its Subsidiaries in any of the other
Loan Documents or in any statement or certificate or information at any
time given by any such Person pursuant to any of the Loan Documents
shall be false or misleading in any material respect on the date as of
which made (or deemed made).
(D) Other Defaults. The Company or any Subsidiary Borrower shall
default in the performance of or compliance with any term contained in
this Agreement (other than as covered by paragraphs (A) or (B) or (C)
of this Section 8.1), or the Company or any Subsidiary Borrower or any
of its Subsidiaries shall default in the performance of or compliance
with any term contained in any of the other Loan Documents, and such
default shall continue for thirty (30) days after the occurrence
thereof.
78
88
(E) Default as to Other Indebtedness. The Company or any of its
Subsidiaries shall fail to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise) with respect to (i) any Indebtedness (other than
Indebtedness hereunder), beyond any period of grace provided with
respect thereto, which individually or together with other such
Indebtedness as to which any such failure or other Default under this
clause (E) exists has an aggregate outstanding principal amount equal
to or in excess of Five Million and 00/100 Dollars ($5,000,000) or (ii)
Indebtedness under the 4-Year Credit Agreement, beyond any period of
grace provided with respect thereto (such Indebtedness under clauses
(i) and (ii) being "Material Indebtedness"); or any breach, default or
event of default (including any termination event, amortization event,
liquidation event or event of like import arising under any agreement
or instrument giving rise to any Off-Balance Sheet Liabilities) shall
occur, or any other condition shall exist under any instrument,
agreement or indenture pertaining to any such Material Indebtedness,
beyond any period of grace, if any, provided with respect thereto, if
the effect thereof is to cause an acceleration, mandatory redemption, a
requirement that the Company offer to purchase such Indebtedness or
other required repurchase or early amortization of such Indebtedness,
or permit the holder(s) of such Indebtedness to accelerate the maturity
of any such Indebtedness or require a redemption, early amortization or
repurchase of such Indebtedness; or any such Indebtedness shall be
otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed, amortized or otherwise repurchased
by the Company or any of its Subsidiaries (other than by a regularly
scheduled required prepayment) prior to the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company or
any of the Company's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within forty-five (45) days
after commencement of the case; or a court having jurisdiction in
the premises shall enter a decree or order for relief in respect of
the Company or any of the Company's Subsidiaries in an involuntary
case, under any applicable bankruptcy, insolvency or other similar
law now or hereinafter in effect; or any other similar relief shall
be granted under any applicable federal, state, local or foreign
law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over the Company or any of the Company's Subsidiaries or over
all or a substantial part of the property of the Company or any of
the Company's Subsidiaries shall be entered; or an interim receiver,
trustee or other custodian of the Company or any of the Company's
Subsidiaries or of all or a substantial part of the property of the
Company or any of the Company's Subsidiaries shall be appointed or a
warrant of attachment, execution or similar process against any
substantial part of the property of the Company or any of the
Company's Subsidiaries shall be issued and any such event shall not
be stayed, dismissed, bonded or discharged within forty-five (45)
days after entry, appointment or issuance.
79
89
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Company or any of the Company's Subsidiaries shall (i) commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (ii) consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, (iii) consent
to the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property, (iv)
make any assignment for the benefit of creditors or (v) take any
corporate action to authorize any of the foregoing.
(H) Judgments and Attachments. Any money judgment(s), writ or
warrant of attachment, or similar process against the Company or any of
its Subsidiaries or any of their respective assets involving in any
single case or in the aggregate an amount in excess of Five Million and
00/100 Dollars ($5,000,000) is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty
(30) days or in any event later than fifteen (15) days prior to the
date of any proposed sale thereunder.
(I) Dissolution. Any order, judgment or decree shall be entered
against the Company or any Subsidiary decreeing its involuntary
dissolution or split up and such order shall remain undischarged and
unstayed for a period in excess of forty-five (45) days; or the Company
or any Subsidiary shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan
Document as a whole that materially affects the ability of the
Administrative Agent, or any of the Lenders to enforce the Obligations
ceases to be in full force and effect or the Company or any of the
Company's Subsidiaries party thereto seeks to repudiate its obligations
thereunder.
(K) Termination Event. Any Termination Event occurs which the
Required Lenders believe is reasonably likely to subject the Company to
liability in excess of $5,000,000.
(L) Waiver of Minimum Funding Standard. If the plan administrator
of any Plan applies under Section 412(d) of the Code for a waiver of
the minimum funding standards of Section 412(a) of the Code and any
Lender believes the substantial business hardship upon which the
application for the waiver is based could reasonably be expected to
subject either the Company or any Controlled Group member to liability
in excess of $5,000,000.
(M) Change of Control. A Change of Control shall occur.
(N) Environmental Matters. The Company or any of its Subsidiaries
shall be the subject of any proceeding or investigation pertaining to
(i) the Release by the Company or any of its Subsidiaries of any
Contaminant into the environment, (ii) the liability of the Company or
any of its Subsidiaries arising from the Release by any other Person of
any Contaminant into the environment, or (iii) any violation of any
Environmental, Health or Safety Requirements of Law which by the
Company or any of
80
90
its Subsidiaries, which, in any case, has or is reasonably likely to
subject the Company to liability individually or in the aggregate in
excess of $5,000,000.
(O) Guarantor Revocation. Any Guarantor of the Obligations shall
terminate or revoke any of its obligations under the applicable
Guaranty or breach any of the material terms of such Guaranty.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.2.
ARTICLE IX: ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1. Termination of Commitments; Acceleration. If any Default
described in Section 8.1(F) or 8.1(G) occurs with respect to the Company, any
Subsidiary Borrower or any Subsidiary Guarantor, the obligations of the Lenders
to make Loans hereunder and the obligation of any Issuing Banks to issue Letters
of Credit hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Administrative Agent or any Lender. If any other Default occurs, the
Required Lenders may terminate or suspend the obligations of the Lenders to make
Loans hereunder and the obligation of the Issuing Banks to issue Letters of
Credit hereunder, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrowers
expressly waive.
9.2. Amendments. Subject to the provisions of this Article IX,
the Required Lenders (or the Administrative Agent with the consent in writing of
the Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Postpone or extend the Termination Date or any other date
fixed for any payment of principal of, or interest on, the Loans,
the Reimbursement Obligations or any fees or other amounts payable
to such Lender (except with respect to (a) any modifications of the
provisions relating to amounts, timing or application of prepayments
of Loans and other Obligations, which modification shall require
only the approval of the Required Lenders, (b) a waiver of the
application of the default rate of interest pursuant to Section 2.10
hereof which waiver shall require only the approval of the Required
Lenders, and (c) extensions of the Termination Date pursuant to
Section 2.22).
(ii) Reduce the principal Dollar Amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon (other than (a) a waiver of the application
of the default rate of interest pursuant to Section 2.10 hereof and
(b) in accordance with the provisions of Section 2.22).
81
91
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be
the applicable percentage in this Agreement to act on specified
matters or amend the definitions of "Required Lenders" or "Pro Rata
Share".
(iv) Increase the amount of the Commitment, of any Lender
hereunder, or increase any Lender's Pro Rata Share.
(v) Permit the Company or, other than pursuant to a transaction
permitted under the terms of this Agreement, any Subsidiary Borrower
to assign its rights under this Agreement.
(vi) Other than pursuant to a transaction permitted by the terms
of this Agreement, release any Guarantor from its obligations under
the Guaranty.
(vii) Amend Section 7.2(K), Section 13.2, Section 13.3 or this
Section 9.2.
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of
the Administrative Agent, (b) Swing Line Loans shall be effective without
the written consent of the Swing Line Bank and (c) any Issuing Bank shall
be effective without the written consent of such Issuing Bank. The
Administrative Agent may waive payment of the fee required under Section
14.3(B) without obtaining the consent of any of the Lenders.
Notwithstanding anything herein to the contrary, the Administrative Agent
may amend the provisions of Exhibit A from time to time to take into
account the effectiveness of assignments made pursuant to Section 14.3,
provided the failure to do so shall not otherwise affect the rights or
obligations of the Lenders or the Borrowers hereunder.
The Administrative Agent may notify the other parties to this
Agreement of any amendments to this Agreement which the Administrative
Agent reasonably determines to be necessary as a result of the
commencement of the third stage of the European Economic and Monetary
Union. Notwithstanding anything to the contrary contained herein, any
amendments so notified shall take effect in accordance with the terms of
the relevant notification.
9.3. Preservation of Rights. No delay or omission of the Lenders
or the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan or the issuance of a Letter of
Credit notwithstanding the existence of a Default or the inability of the
Company or any other Borrower to satisfy the conditions precedent to such Loan
or issuance of such Letter of Credit shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the requisite number of Lenders required pursuant to Section 9.2, and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded
82
92
shall be cumulative and all shall be available to the Administrative Agent and
the Lenders until all of the Termination Conditions shall have been satisfied.
ARTICLE X: GUARANTY
10.1. Guaranty. For valuable consideration, the receipt of which
is hereby acknowledged, and to induce the Lenders to make advances to each
Borrower and to issue and participate in Letters of Credit and Swing Line Loans,
the Company and each Subsidiary Borrower (collectively, the "Borrower
Guarantors") hereby absolutely and unconditionally guarantees prompt payment
when due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, of any and all existing and future Obligations of each
Borrower to the Administrative Agent, the Lenders, the Swing Line Bank, the
Issuing Banks, or any of them, under or with respect to the Loan Documents,
whether for principal, interest, fees, expenses or otherwise (collectively, the
"Guaranteed Obligations").
10.2. Waivers; Subordination of Subrogation.
(A) Each Borrower Guarantor waives notice of the acceptance of
this guaranty and of the extension or continuation of the Guaranteed
Obligations or any part thereof. Each Borrower Guarantor further waives
presentment, protest, notice of notices delivered or demand made on any
Borrower or action or delinquency in respect of the Guaranteed
Obligations or any part thereof, including any right to require the
Administrative Agent and the Lenders to sue any Borrower, any other
guarantor or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof; provided, that if at any time any
payment of any portion of the Guaranteed Obligations is rescinded or
must otherwise be restored or returned upon the insolvency, bankruptcy
or reorganization of any of the Borrowers or otherwise, the Borrower
Guarantor's obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had not been made and
whether or not the Administrative Agent or the Lenders are in
possession of this guaranty. The Administrative Agent and the Lenders
shall have no obligation to disclose or discuss with the Company their
assessments of the financial condition of the Borrowers.
(B) Until the Guaranteed Obligations have been indefeasibly paid
in full in cash, each Borrower Guarantor (i) shall have no right of
subrogation with respect to such Guaranteed Obligations and (ii) waives
any right to enforce any remedy which the Administrative Agent now has
or may hereafter have against any Borrower, any other Guarantor, any
endorser or any guarantor of all or any part of the Guaranteed
Obligations or any other Person. Should any Borrower Guarantor have the
right, notwithstanding the foregoing, to exercise its subrogation
rights, each Borrower Guarantor hereby expressly and irrevocably (a)
subordinates any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification or set off
that such Borrower Guarantor may have to the indefeasible payment in
full in cash of the Guaranteed Obligations and (b) waives any and all
defenses available to a surety, guarantor or accommodation co-obligor
until the Guaranteed Obligations are indefeasibly paid in full in cash.
Each Borrower Guarantor acknowledges and agrees that this subordination
is intended to benefit the Administrative Agent and shall not limit or
otherwise affect any
83
93
Borrower Guarantor liability hereunder or the enforceability of this
Guaranty, and that the Administrative Agent, the Lenders and their its
successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 10.2.
10.3. Guaranty Absolute. This guaranty is a guaranty of payment
and not of collection, is a primary obligation of each Borrower Guarantor and
not one of surety, and the validity and enforceability of this guaranty shall be
absolute and unconditional irrespective of, and shall not be impaired or
affected by any of the following: (a) any extension, modification or renewal of,
or indulgence with respect to, or substitutions for, the Guaranteed Obligations
or any part thereof or any agreement relating thereto at any time; (b) any
failure or omission to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto;
(c) any waiver of any right, power or remedy with respect to the Guaranteed
Obligations or any part thereof or any agreement relating thereto; (d) any
release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, any other guaranties with respect
to the Guaranteed Obligations or any part thereof, or any other obligation of
any Person with respect to the Guaranteed Obligations or any part thereof; (e)
the enforceability or validity of the Guaranteed Obligations or any part thereof
or the genuineness, enforceability or validity of any agreement relating
thereto, including, without limitation, as a result of a Country Risk Event; (f)
the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Borrower or the insolvency,
bankruptcy or any other change in the legal status of any Borrower; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any other Borrower to maintain in full force, validity
or effect or to obtain or renew when required all governmental and other
approvals, licenses or consents required in connection with the Guaranteed
Obligations or this guaranty, or to take any other action required in connection
with the performance of all obligations pursuant to the Guaranteed Obligations
or this guaranty; (j) the existence of any claim, setoff or other rights which
the Company may have at any time against any Borrower, or any other Person in
connection herewith or an unrelated transaction; or (k) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense
to a guarantor; all whether or not such Borrower Guarantor shall have had notice
or knowledge of any act or omission referred to in the foregoing clauses (a)
through (k) of this paragraph. It is agreed that each Borrower Guarantor's
liability hereunder is several and independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Obligations or
any part thereof and that each Borrower Guarantor's liability hereunder may be
enforced regardless of the existence, validity, enforcement or non-enforcement
of any such other guaranties or other obligations or any provision of any
applicable law or regulation purporting to prohibit payment by any Borrower of
the Guaranteed Obligations in the manner agreed upon between the Borrower and
the Administrative Agent and the Lenders.
10.4. Acceleration. Each Borrower Guarantor agrees that, as
between such Borrower Guarantor on the one hand, and the Lenders and the
Administrative Agent, on the other hand, the obligations of each Borrower
guaranteed under this Article X may be declared to
84
94
be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Section 9.1 hereof for purposes of this Article X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Borrower or otherwise) preventing such
declaration as against such Borrower and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Borrower) shall forthwith become due and payable by each Borrower Guarantor
for purposes of this Article X.
10.5. Marshaling; Reinstatement. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any obligation to marshal any assets in
favor of any Borrower Guarantor or against or in payment of any or all of the
Guaranteed Obligations. If any Borrower Guarantor or any other guarantor of all
or any part of the Guaranteed Obligations makes a payment or payments to any
Lender or the Administrative Agent, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to any Borrower Guarantor or any other
guarantor or any other Person, or their respective estates, trustees, receivers
or any other party, including, without limitation, each Borrower Guarantor,
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or repayment, the part of the Guaranteed
Obligations which has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the time immediately
preceding such initial payment, reduction or satisfaction.
10.6. Termination Date. This guaranty shall continue in effect
until the earlier of (a) the Facility Termination Date, and (b) the date on
which this Agreement has otherwise expired or been terminated in accordance with
its terms and all of the Guaranteed Obligations have been paid in full in cash,
subject to the proviso in Section 10.2.
ARTICLE XI: GENERAL PROVISIONS
11.1. Survival of Representations. All representations and
warranties of the Borrowers contained in this Agreement shall survive delivery
of this Agreement and the making of the Loans herein contemplated so long as any
principal, accrued interest, fees, or any other amount due and payable under any
Loan Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Commitments have not been
terminated.
11.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Company or any other Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.
11.3. Performance of Obligations. The Borrowers agree that the
Administrative Agent may, but shall have no obligation to (i) at any time, pay
or discharge taxes, liens, security interests or other encumbrances levied or
placed on or threatened against any property of any Borrower to the extent any
such Borrower is required by the terms hereof to pay any such amount, but has
not done so and (ii), after the occurrence and during the continuance of a
Default, to make any other payment or perform any act required of the Company or
any other
85
95
Borrower under any Loan Document or take any other action which the
Administrative Agent in its discretion deems necessary or desirable to protect
or preserve such property of the Company. The Administrative Agent shall use its
reasonable efforts to give the applicable Borrower notice of any action taken
under this Section 11.3 prior to the taking of such action or promptly
thereafter provided the failure to give such notice shall not affect the
applicable Borrower's obligations in respect thereof. The Borrowers agree to pay
the Administrative Agent, upon demand, the principal amount of all funds
advanced by the Administrative Agent under this Section 11.3, together with
interest thereon at the rate from time to time applicable to Floating Rate Loans
from the date of such advance until the outstanding principal balance thereof is
paid in full. If any Borrower fails to make payment in respect of any such
advance under this Section 11.3 within one (1) Business Day after the date the
applicable Borrower receives written demand therefor from the Administrative
Agent, the Administrative Agent shall promptly notify each Lender and each
Lender agrees that it shall thereupon make available to the Administrative
Agent, in Dollars in immediately available funds, the amount equal to such
Lender's Pro Rata Share of such advance. If such funds are not made available to
the Administrative Agent by such Lender within one (1) Business Day after the
Administrative Agent's demand therefor, the Administrative Agent will be
entitled to recover any such amount from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Administrative
Agent its Pro Rata Share of any such unreimbursed advance under this Section
11.3 shall neither relieve any other Lender of its obligation hereunder to make
available to the Administrative Agent such other Lender's Pro Rata Share of such
advance on the date such payment is to be made nor increase the obligation of
any other Lender to make such payment to the Administrative Agent.
11.4. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
11.5. Entire Agreement. The Loan Documents and the letter
agreement between the Administrative Agent, the Arranger and the Borrowers dated
September 6, 2000 embody the entire agreement and understanding among the
Borrowers, the Administrative Agent and the Lenders and supersede all prior
agreements and understandings among the Borrowers, the Administrative Agent and
the Lenders relating to the subject matter thereof.
11.6. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other Lender (except to the extent
to which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
11.7. Expenses; Indemnification.
(A) Expenses. The Borrowers shall reimburse the Administrative
Agent and the Arranger for any reasonable costs, internal charges and
out-of-pocket expenses
86
96
(including reasonable attorneys' and paralegals' fees and time charges
of attorneys and paralegals for the Administrative Agent, which
attorneys and paralegals may be employees of the Administrative Agent)
paid or incurred by the Administrative Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery,
syndication, distribution (including via the internet), review,
amendment, modification, and administration of the Loan Documents. The
Borrowers also agree to reimburse the Administrative Agent and the
Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' and paralegals' fees and
time charges of attorneys and paralegals for the Administrative Agent
and the Arranger and the Lenders, which attorneys and paralegals may be
employees of the Administrative Agent or the Arranger or the Lenders)
paid or incurred by the Administrative Agent or the Arranger or any
Lender in connection with the collection of the Obligations and
enforcement of the Loan Documents. In addition to expenses set forth
above, the Borrowers agree to reimburse the Administrative Agent,
promptly after the Administrative Agent's request therefor, for each
audit, or other business analysis performed by or for the benefit of
the Lenders in connection with this Agreement or the other Loan
Documents in an amount equal to the Administrative Agent's then
customary charges for each person employed to perform such audit or
analysis, plus all costs and expenses (including without limitation,
travel expenses) incurred by the Administrative Agent in the
performance of such audit or analysis. Administrative Agent shall
provide the Borrowers with a detailed statement of all reimbursements
requested under this Section 11.7(A).
(B) Indemnity. The Borrowers further agree to defend, protect,
indemnify, and hold harmless the Administrative Agent, the Arranger and
each and all of the Lenders and each of their respective Affiliates,
and each of such Administrative Agent's, Arranger's, Lender's, or
Affiliate's respective officers, directors, trustees, investment
advisors, employees, attorneys and agents (including, without
limitation, those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in Article V)
(collectively, the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements
of counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not any of such
Indemnitees shall be designated a party thereto), imposed on, incurred
by, or asserted against such Indemnitees in any manner relating to or
arising out of:
(i) this Agreement or any of the other Loan Documents, or any
act, event or transaction related or attendant thereto or to the
making of the Loans, and the issuance of and participation in
Letters of Credit hereunder, the management of such Loans or Letters
of Credit, the use or intended use of the proceeds of the Loans or
Letters of Credit hereunder, or any of the other transactions
contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural
resources or public health or welfare, costs and expenses
(including, without
87
97
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect,
known or unknown, absolute or contingent, past, present or future
relating to violation of any Environmental, Health or Safety
Requirements of Law arising from or in connection with the past,
present or future operations of the Company, its Subsidiaries or any
of their respective predecessors in interest, or, the past, present
or future environmental, health or safety condition of any
respective property of the Company or its Subsidiaries, the presence
of asbestos-containing materials at any respective property of the
Company or its Subsidiaries or the Release or threatened Release of
any Contaminant into the environment (collectively, the "Indemnified
Matters");
provided, however, no Borrower shall have any obligation to an
Indemnitee hereunder with respect to Indemnified Matters caused solely
by or resulting solely from the willful misconduct or Gross Negligence
of such Indemnitee with respect to the Loan Documents, as determined by
the final non-appealed judgment of a court of competent jurisdiction.
If the undertaking to indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any
law or public policy, the applicable Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified
Matters incurred by the Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. Neither the
Administrative Agent, the Arranger, any Lender nor the Company or any
other Borrower shall be liable under this Agreement or any Loan
Document or in respect of any act, omission or event relating to the
transaction contemplated hereby or thereby, on any theory of liability
on any theory of liability seeking consequential, special, indirect,
exemplary or punitive damages. No settlement shall be entered into by
the Company or any of its Subsidiaries with respect to any claim,
litigation, arbitration or other proceeding relating to or arising out
of the transactions evidenced by this Agreement or the other Loan
Documents (whether or not the Administrative Agent or any Lender or any
Indemnitee is a party thereto) unless such settlement releases all
Indemnitees from any and all liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of
the Borrowers under this Section 11.7 shall survive the termination of
this Agreement.
11.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
11.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. If any changes in generally accepted accounting principles are
hereafter required or permitted and are adopted by the Company or any of its
Subsidiaries with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, tests,
88
98
restrictions or standards herein or in the related definitions or terms used
therein ("Accounting Changes"), the parties hereto agree, at the Company's
request, to enter into negotiations, in good faith, in order to amend such
provisions in a credit neutral manner so as to reflect equitably such changes
with the desired result that the criteria for evaluating the Company's and its
Subsidiaries' financial condition shall be the same after such changes as if
such changes had not been made; provided, however, until such provisions are
amended in a manner reasonably satisfactory to the Administrative Agent and the
Required Lenders, no Accounting Change shall be given effect in such
calculations and all financial statements and reports required to be delivered
hereunder shall be prepared in accordance with Agreement Accounting Principles
without taking into account such Accounting Changes. In the event such amendment
is entered into, all references in this Agreement to Agreement Accounting
Principles shall mean generally accepted accounting principles as of the date of
such amendment.
11.10. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
11.11. Nonliability of Lenders. The relationship between the
Borrowers and the Lenders and the Administrative Agent shall be solely that of
borrower and lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrowers. Neither the Administrative
Agent nor any Lender undertakes any responsibility to any Borrower to review or
inform any Borrower of any matter in connection with any phase of the Borrowers'
business or operations.
11.12. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS
AGREEMENT, ON BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY
ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (INCLUDING ss.735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
11.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN CLAUSE (B),
EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL
89
99
BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO,
ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES
BROUGHT PURSUANT TO THIS CLAUSE (A) ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE
ADMINISTRATIVE AGENT, ANY LENDER SHALL HAVE THE RIGHT TO PROCEED
AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER
ANY BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PERSON. EACH BORROWER AGREES THAT IT WILL NOT
ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH
PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS CLAUSE (B).
(C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY
JURISDICTION SET FORTH ABOVE.
(D) SERVICE OF PROCESS. EACH BORROWER IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN ARTICLE XV,
AND THE COMPANY AND EACH BORROWER OR GUARANTOR LOCATED OR ORGANIZED
OUTSIDE OF THE STATE OF ILLINOIS HEREBY IRREVOCABLY APPOINTS THE
COMPANY AT THE ADDRESS PROVIDED IN SECTION 15.1, AS ITS AGENT FOR
SERVICE OF PROCESS OUT OF ANY OF THE COURTS REFERRED TO IN PARAGRAPHS
(A) AND (B) ABOVE. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
(E) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
INSTRUMENT,
90
100
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH.
EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH
OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND,
SPECIFICALLY, THE PROVISIONS OF SECTION 11.7 AND THIS SECTION 11.13,
WITH ITS COUNSEL.
11.14. Other Transactions. Each of the Administrative Agent, the
Arranger, the Lenders, the Swing Line Bank, the Issuing Banks and the Borrowers
acknowledge that the Lenders (or Affiliates of the Lenders) may, from time to
time, effect transactions for their own accounts or the accounts of customers,
and hold positions in loans or options on loans of the Company, the Company's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition, certain
Affiliates of one or more of the Lenders are or may be securities firms and as
such may effect, from time to time, transactions for their own accounts or for
the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Each of the Administrative Agent, the Arranger and Arranger, the Lenders, the
Swing Line Bank, the Issuing Banks and the Borrowers acknowledges and consents
to these multiple roles, and further acknowledges that the fact that any such
unit or Affiliate is providing another service or product or proposal therefor
to the Company or any of its Subsidiaries does not mean that such service,
product, or proposal is or will be acceptable to any of the Administrative
Agent, the Arranger and Arranger, the Lenders, the Swing Line Bank or the
Issuing Banks.
11.15. Subordination of Intercompany Indebtedness. Each Borrower
agrees that any and all claims of such Borrower against the Company or any of
its Subsidiaries that is a Guarantor with respect to any "Intercompany
Indebtedness" (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Obligations, or against any of its
properties shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Obligations and Hedging Obligations under
Hedging Arrangements entered into with the Lenders or any of their Affiliates
("Designated Hedging Agreements"); provided that, and not in contravention of
the foregoing, so long as no Default has occurred and is continuing each
Borrower may make loans to and receive payments in the ordinary course with
respect to such
91
101
Intercompany Indebtedness from each such Guarantor to the extent not prohibited
by the terms of this Agreement and the other Loan Documents. Notwithstanding any
right of any Borrower to ask, demand, sue for, take or receive any payment from
any Guarantor, all rights, liens and security interests of any Borrower, whether
now or hereafter arising and howsoever existing, in any assets of any Guarantor
shall be and are subordinated to the rights of the holders of the Obligations
and the Administrative Agent in those assets. No Borrower shall have any right
to possession of any such asset or to foreclose upon any such asset, whether by
judicial action or otherwise, unless and until all of the Obligations (other
than contingent indemnity obligations) and the Hedging Obligations under
Designated Hedging Agreements shall have been fully paid and satisfied (in cash)
and all financing arrangements pursuant to any Loan Document or Designated
Hedging Agreement have been terminated. If all or any part of the assets of any
Guarantor, or the proceeds thereof, are subject to any distribution, division or
application to the creditors of such Guarantor, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding, or if the business of any such Guarantor is dissolved or
if substantially all of the assets of any such Guarantor are sold, then, and in
any such event (such events being herein referred to as an "Insolvency Event"),
any payment or distribution of any kind or character, either in cash, securities
or other property, which shall be payable or deliverable upon or with respect to
any indebtedness of any Guarantor to any Borrower ("Intercompany Indebtedness")
shall be paid or delivered directly to the Administrative Agent for application
on any of the Obligations and Hedging Obligations under Designated Hedging
Agreements, due or to become due, until such Obligations and Hedging Obligations
(other than contingent indemnity obligations) shall have first been fully paid
and satisfied (in cash). Should any payment, distribution, security or
instrument or proceeds thereof be received by any Borrower upon or with respect
to the Intercompany Indebtedness after an Insolvency Event prior to the
satisfaction of all of the Obligations (other than contingent indemnity
obligations) and Hedging Obligations under Designated Hedging Agreements and the
termination of all financing arrangements pursuant to any Loan Document and or
Designated Hedging Agreements, such Borrower shall receive and hold the same in
trust, as trustee, for the benefit of the holders of the Obligations and such
Hedging Obligations and shall forthwith deliver the same to the Administrative
Agent, for the benefit of such Persons, in precisely the form received (except
for the endorsement or assignment of such Borrower where necessary), for
application to any of the Obligations and such Hedging Obligations, due or not
due, and, until so delivered, the same shall be held in trust by such Borrower
as the property of the holders of the Obligations and such Hedging Obligations.
If any Borrower fails to make any such endorsement or assignment to the
Administrative Agent, the Administrative Agent or any of its officers or
employees are irrevocably authorized to make the same. Each Borrower agrees that
until the Obligations (other than the contingent indemnity obligations) and such
Hedging Obligations have been paid in full (in cash) and satisfied and all
financing arrangements pursuant to any Loan Document or any Designated Hedging
Agreement have been terminated, no Borrower will assign or transfer to any
Person (other than the Administrative Agent) any claim such Borrower has or may
have against any Guarantor.
11.16. Lender's Not Utilizing Plan Assets. None of the
consideration used by any of the Lenders or Designated Lenders to make its Loans
constitutes for any purpose of ERISA or Section 4975 of the Code assets of any
"plan" as defined in Section 3(3) of ERISA or
92
102
Section 4975 of the Code and the rights and interests of each of the Lenders and
Designated Lenders in and under the Loan Documents shall not constitute such
"plan assets" under ERISA.
11.17. Collateral. Each of the Lenders and the Issuing Banks
represents to the Administrative Agent, each of the other Lenders and each of
the other Issuing Banks that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
ARTICLE XII: THE ADMINISTRATIVE AGENT
12.1. Appointment; Nature of Relationship. Bank One is appointed
by the Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article XII. In its capacity as the
Lenders' contractual representative, the Administrative Agent is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders agrees to assert no claim against the Administrative Agent on any agency
theory or any other theory of liability for breach of fiduciary duty.
12.2. Powers. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically delegated to
the Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3. General Immunity. Neither the Administrative Agent nor any
of its directors, officers, agents or employees shall be liable to the
Borrowers, the Lenders or any Lender for any action taken or omitted to be taken
by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is found in a
final judgment by a court of competent jurisdiction to have arisen solely from
the Gross Negligence or willful misconduct of such Person.
12.4. No Responsibility for Loans, Creditworthiness, Recitals,
Etc. Neither the Administrative Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to ascertain, inquire
into, or verify (i) any statement, warranty or representation made in connection
with any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any Loan
Document; (iii) the satisfaction of any condition specified in Article V, except
receipt of items required to be delivered solely to the Administrative Agent;
(iv) the existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties
93
103
herein or in any of the other Loan Documents or for the execution,
effectiveness, genuineness, validity, legality, enforceability, collectibility,
or sufficiency of this Agreement or any of the other Loan Documents or the
transactions contemplated thereby, or for the financial condition of any
guarantor of any or all of the Obligations, the Company or any of its
Subsidiaries.
12.5. Action on Instructions of Lenders. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all owners of Loans. The Administrative
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
12.6. Employment of Agents and Counsel. The Administrative Agent
may execute any of its duties as the Administrative Agent hereunder and under
any other Loan Document by or through employees, agents, and attorney-in-fact
and shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agent, for the default or misconduct of any
such agent or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
12.7. Reliance on Documents; Counsel. The Administrative Agent
shall be entitled to rely upon any notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
12.8. The Administrative Agent's Reimbursement and
Indemnification. The Lenders agree to reimburse and indemnify the Administrative
Agent (i) for any amounts not reimbursed by any Borrower for which the
Administrative Agent is entitled to reimbursement by any Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen solely from the Gross Negligence or willful
misconduct of the Administrative Agent.
12.9. Rights as a Lender. With respect to its Commitment, Loans
made by it, and Letters of Credit issued by it, the Administrative Agent shall
have the same rights and
94
104
powers hereunder and under any other Loan Document as any Lender or Issuing Bank
and may exercise the same as though it were not the Administrative Agent, and
the term "Lender" or "Lenders", "Issuing Bank" or "Issuing Banks" shall, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Company or any of its Subsidiaries in which such Person
is not prohibited hereby from engaging with any other Person.
12.10. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender and based on the financial statements prepared by
the Company and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
12.11. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right to
appoint, on behalf of the Borrowers and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Notwithstanding anything herein to
the contrary, so long as no Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to approval by the Company,
which approval shall not be unreasonably withheld or delayed. Such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $500,000,000. Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article XII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
12.12. Documentation Agent, Syndication Agent, and Arranger.
Neither the Documentation Agent, the Syndication Agent nor the Arranger shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments
with respect to such Lenders as it makes with respect to the Administrative
Agent in Section 12.10.
95
105
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if any Default occurs and is
continuing, any Indebtedness from any Lender to the Company or any other
Borrower (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or not the Obligations,
or any part hereof, shall then be due.
13.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Sections 4.1, 4.2 or 4.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
13.3. Application of Payments. The Administrative Agent shall,
unless otherwise specified at the direction of the Required Lenders which
direction shall be consistent with the last two sentences of this Section 13.3,
apply all payments and prepayments in respect of any Obligations in the
following order:
(i) first, to pay interest on and then principal of any portion
of the Loans which the Administrative Agent may have advanced on
behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the applicable Borrower;
(ii) second, to pay interest on and then principal of any
advance made under Section 11.3 for which the Administrative Agent
has not then been paid by the applicable Borrower or reimbursed by
the Lenders;
(iii) third, to the ratable payment of the Obligations in respect
of any fees, expenses, reimbursements or indemnities then due to the
Administrative Agent or the Arranger;
(iv) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders and
the issuer(s) of Letters of Credit;
(v) fifth, to pay interest due in respect of Swing Line Loans;
(vi) sixth, to pay interest due in respect of Loans (other than
Swing Line Loans) and L/C Obligations;
(vii) seventh, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans;
(viii) eighth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans) and Reimbursement
Obligations; and
96
106
(ix) ninth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Company, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Eurodollar Rate
Loans with those Eurodollar Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this Section 13.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Administrative Agent, the Lenders, the Swing Line Bank and the issuer(s) of
Letters of Credit as among themselves. The order of priority set forth in
clauses (iv) through (ix) of this Section 13.3 may at any time and from time to
time be changed by the Required Lenders without necessity of notice to or
consent of or approval by any Borrower, or any other Person; provided, that the
order of priority of payments in respect of Swing Line Loans may be changed only
with the prior written consent of the Swing Line Bank. The order of priority set
forth in clauses (i) through (iii) of this Section 13.3 may be changed only with
the prior written consent of the Administrative Agent, and, in the case of
clause (iii), with the prior written consent of the Arranger.
13.4. Relations Among Lenders.
(A) No Action Without Consent. Except with respect to the
exercise of set-off rights of any Lender in accordance with Section
12.1, the proceeds of which are applied in accordance with this
Agreement, and each Lender agrees that it will not take any action, nor
institute any actions or proceedings, against the Borrowers or any
other obligor hereunder or with respect to any Loan Document, without
the prior written consent of the Required Lenders or, as may be
provided in this Agreement or the other Loan Documents, at the
direction of the Administrative Agent.
(B) Not Partners; No Liability. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions
of, or (except as otherwise set forth herein in case of the
Administrative Agent) authorized to act for, any other Lender. The
Administrative Agent shall have the exclusive right on behalf of the
Lenders to enforce on the payment of the principal of and interest on
any Loan after the date such principal or interest has become due and
payable pursuant to the terms of this Agreement.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1. Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the Borrowers
and the Lenders and their respective successors and assigns, except that (A)
other than in connection with a transaction involving a Subsidiary Borrower
which is permitted pursuant to the terms of this Agreement, no Borrower shall
have any right to assign its rights or obligations under the Loan Documents
without the consent of all of the Lenders, and any such assignment in violation
of this Section 14.1(A) shall be null and void, and (B) any assignment by any
Lender must be made in compliance with Section 14.3 hereof. The parties to this
Agreement acknowledge that clause (B) of this Section 14.1 relates only to
absolute assignments and does not prohibit assignments creating security
interests, including, without limitation, (x) any pledge or assignment by any
97
107
Lender of all or any portion of its rights under this Agreement and any Note to
a Federal Reserve Bank or (y) in the case of a Lender which is a fund, any
pledge or assignment of all or any portion of its rights under this Agreement
and any Note to its trustee in support of its obligations to its trustee;
provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of
Section 14.3. The Administrative Agent may treat each Lender as the owner of the
Loans made by such Lender hereunder for all purposes hereof unless and until
such Lender complies with Section 14.3 hereof in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Administrative Agent. Any assignee or transferee of a Loan,
Commitment, L/C Interest or any other interest of a Lender under the Loan
Documents agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of any Loan, shall be conclusive and binding on any
subsequent owner, transferee or assignee of such Loan.
14.2. Participations.
(A) Permitted Participants; Effect. Subject to the terms set
forth in this Section 14.2, any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, the Commitment of such
Lender, any L/C Interest of such Lender or any other interest of such
Lender under the Loan Documents on a pro rata or non-pro rata basis.
Notice of such participation to the Company and the Administrative
Agent shall be required prior to any participation becoming effective
with respect to a Participant which is not a Lender, Designated Lender
or an Affiliate thereof. Upon receiving said notice, the Administrative
Agent shall record the participation in the Register it maintains.
Moreover, notwithstanding such recordation, such participation shall
not be considered an assignment under Section 14.3 of this Agreement
and such Participant shall not be considered a Lender. In the event of
any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender
shall remain the owner of all Loans made by it for all purposes under
the Loan Documents, all amounts payable by the applicable Borrower
under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the applicable Borrower and the
Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under the Loan Documents except that, for purposes of Article IV
hereof, the Participants shall be entitled to the same rights as if
they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver which, if the Participant
were a Lender hereunder, would require the consent of such Participant
pursuant to the terms of Section 9.2.
98
108
(C) Benefit of Setoff. The Borrowers agree that each Participant
shall be deemed to have the right of setoff provided in Section 13.1
hereof in respect to its participating interest in amounts owing under
the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 13.1 hereof with respect to the amount of
participating interests sold to each Participant except to the extent
such Participant exercises its right of setoff. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 13.1 hereof, agrees to share with
each Lender, any amount received pursuant to the exercise of its right
of setoff, such amounts to be shared in accordance with Section 13.2 as
if each Participant were a Lender.
14.3. Assignments.
(A) Permitted Assignments. Any Lender (each such assigning
Lender under this Section 14.3 being a "Seller") may, in accordance
with applicable law, at any time assign to one or more banks or other
entities that are Eligible Assignees ("Purchasers") all or a portion of
its rights and obligations under this Agreement (including, without
limitation, its Commitment, Loans owing to it, its participation
interests in existing Letters of Credit and Swing Line Loans, and its
obligation to participate in additional Letters of Credit and Swing
Line Loans) in accordance with the provisions of this Section 14.3.
Each assignment shall be of a constant, and not a varying, ratable
percentage of all of the Seller's rights and obligations under this
Agreement. Such assignment shall be substantially in the form of
Exhibit D hereto and shall not be permitted hereunder unless such
assignment is either for all of such Seller's rights and obligations
under the Loan Documents or, without the prior written consent of the
Administrative Agent, involves loans and commitments in an aggregate
amount of at least Five Million and 00/100 Dollars ($5,000,000) (which
minimum amount shall not apply to any assignment between Lenders, or to
an Affiliate of any Lender). The written consent of the Administrative
Agent, and, prior to the occurrence of a Default, the Company (which
consent, in each such case, shall not be unreasonably withheld or
delayed), shall be required prior to an assignment becoming effective
with respect to a Purchaser which is not a Lender or an Affiliate of
such assigning Lender.
(B) Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the
form attached as Appendix I to Exhibit D hereto (a "Notice of
Assignment"), together with any consent required by Section 14.3(A)
hereof, (ii) payment of a Four Thousand and 00/100 Dollar ($4,000) fee
by the assignor to the Administrative Agent for processing such
assignment, which fee shall not apply to any assignment from a Lender
to an Affiliate of such Lender, and (iii) the completion of the
recording requirements in Section 14.3(C), such assignment shall become
effective on the later of such date when the requirements in clauses
(i), (ii), and (iii) are met or the effective date specified in such
Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment, Loans and
L/C Obligations under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan
99
109
assets" under ERISA. On and after the effective date of such
assignment, such Purchaser, if not already a Lender, shall for all
purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party hereto, and no further consent or action
by any Borrower, the Lenders or the Administrative Agent shall be
required to release the Seller with respect to the percentage of the
Aggregate Commitment, Loans and Letter of Credit and Swing Line Loan
participations assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 14.3(B), the Seller,
the Administrative Agent and the Borrowers shall make appropriate
arrangements so that, to the extent notes have been issued to evidence
any of the transferred Loans, replacement notes are issued to such
Seller and new notes or, as appropriate, replacement notes, are issued
to such Purchaser, in each case in principal amounts reflecting their
Commitments, as adjusted pursuant to such assignment. Notwithstanding
anything to the contrary herein, no Borrower shall, at any time, be
obligated to pay under Section 2.14(E) to any Lender that is a
Purchaser, assignee or transferee any sum in excess of the sum which
such Borrower would have been obligated to pay in respect of such
transferred Loan to the Lender that was the Seller, assignor or
transferor had such assignment or transfer not been effected.
(C) The Register. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent,
and the Administrative Agent, hereby accepts such designation, to serve
as such Borrower's contractual representative solely for purposes of
this Section 14.3(C). In this connection, the Administrative Agent
shall maintain at its address referred to in Section 15.1 a copy of
each assignment delivered to and accepted by it pursuant to this
Section 14.3 and a register (the "Register") for the recordation of the
names and addresses of the Lenders and the Commitment of, principal
amount of and interest on the Loans owing to, each Lender from time to
time and whether such Lender is an original Lender or the assignee of
another Lender pursuant to an assignment under this Section 14.3. The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Company and each of its
Subsidiaries, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for
inspection by any Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(D) Designated Lender.
(i) Subject to the terms and conditions set forth in this Section
14.3(D), any Lender may from time to time elect to designate an
Eligible Designee to provide all or any part of the Loans to be made
by such Lender pursuant to this Agreement; provided that the
designation of an Eligible Designee by any Lender for purposes of
this Section 14.3(D) shall be subject to the approval of the
Administrative Agent (which consent shall not be unreasonably
withheld or delayed). Upon the execution by the parties to each such
designation of an agreement in the form of Exhibit L hereto (a
"Designation Agreement") and the acceptance thereof by the
Administrative Agent, the Eligible Designee shall become a
Designated Lender for purposes of this
100
110
Agreement. The Designating Lender shall thereafter have the right to
permit the Designated Lender to provide all or a portion of the
Loans to be made by the Designating Lender pursuant to the terms of
this Agreement and the making of the Loans or portion thereof shall
satisfy the obligations of the Designating Lender to the same
extent, and as if, such Loan was made by the Designating Lender. As
to any Loan made by it, each Designated Lender shall have all the
rights a Lender making such Loan would have under this Agreement and
otherwise; provided, (x) that all voting rights under this Agreement
shall be exercised solely by the Designating Lender, (y) each
Designating Lender shall remain solely responsible to the other
parties hereto for its obligations under this Agreement, including
the obligations of a Lender in respect of Loans made by its
Designated Lender and (z) no Designated Lender shall be entitled to
reimbursement under Article IV hereof for any amount which would
exceed the amount that would have been payable by the Borrowers to
the Lender from which the Designated Lender obtained any interests
hereunder. No additional Notes shall be required with respect to
Loans provided by a Designated Lender; provided, however, to the
extent any Designated Lender shall advance funds, the Designating
Lender shall be deemed to hold the Notes in its possession as an
agent for such Designated Lender to the extent of the Loan funded by
such Designated Lender. Such Designating Lender shall act as
administrative agent for its Designated Lender and give and receive
notices and communications hereunder. Any payments for the account
of any Designated Lender shall be paid to its Designating Lender as
administrative agent for such Designated Lender and neither the
Borrowers nor the Administrative Agent shall be responsible for any
Designating Lender's application of such payments. In addition, any
Designated Lender may (1) with notice to, but without the consent of
the Borrowers or the Administrative Agent, assign all or portions of
its interests in any Loans to its Designating Lender or to any
financial institution consented to by the Administrative Agent
providing liquidity and/or credit facilities to or for the account
of such Designated Lender and (2) subject to advising any such
Person that such information is to be treated as confidential in
accordance with such Person's customary practices for dealing with
confidential, non-public information, disclose on a confidential
basis any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of any guarantee, surety
or credit or liquidity enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting against
any Designated Lender any bankruptcy, reorganization, arrangements,
insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law for one year and a day
after the payment in full of all outstanding senior indebtedness of
any Designated Lender; provided that the Designating Lender for each
Designated Lender hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage and expense
arising out of their inability to institute any such proceeding
against such Designated Lender. This Section 14.3(D)(ii) shall
survive the termination of this Agreement.
14.4. Confidentiality. Subject to Section 14.5, the Administrative
Agent and the Lenders and their respective representatives, consultants and
advisors shall hold all nonpublic
101
111
information obtained pursuant to the requirements of this Agreement and
identified as such by the Company or any other Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor, and shall (x) use its
commercially reasonable efforts to give prior notice of any such disclosure to
the extent permitted by applicable law, and (y) require any such Transferee to
agree (and require any of its Transferees to agree) to comply with this Section
14.4. In no event shall the Administrative Agent or any Lender be obligated or
required to return any materials furnished by the Company; provided, however,
each prospective Transferee shall be required to agree that if it does not
become a participant or assignee it shall return all materials furnished to it
by or on behalf of the Company in connection with this Agreement.
14.5. Dissemination of Information. Each Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the Borrowers and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 14.4 the confidentiality of any confidential information described
therein.
ARTICLE XV: NOTICES
15.1. Giving Notice. Except as otherwise permitted by Section 2.13
with respect to Borrowing/Election Notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Documents
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid, shall be deemed
given three (3) Business Days after mailed; any notice, if transmitted by telex
or facsimile, shall be deemed given when transmitted (answerback confirmed in
the case of telexes); or any notice, if transmitted by courier, one (1) Business
Day after deposit with a reputable overnight carrier service, with all charges
paid.
15.2. Change of Address. The Borrowers, the Administrative Agent
and any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been
102
112
executed by the Company, the Administrative Agent and the Lenders and each party
has notified the Administrative Agent by telex or telephone, that it has taken
such action.
[REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
103
113
IN WITNESS WHEREOF, the Borrowers, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
CHICAGO BRIDGE & IRON COMPANY
N.V., as the Company
By: CHICAGO BRIDGE & IRON COMPANY
B.V.
Its: Managing Director
By: /s/ Gerald M. Glenn
------------------------------------
Name: Gerald M. Glenn
Title: Managing Director
Address:
c/o Chicago Bridge & Iron Company
Town Center One
1450 Lake Robbins Drive
Suite 400
The Woodlands, TX 77380
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
1501 N. Division Street
Plainfield, Illinois 60544-8984
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (815) 439-6000
Facsimile No.: (815) 439-4050
114
CB&I CONSTRUCTORS, INC., as a
Subsidiary Borrower
By: /s/ Timothy J.P. Moran
-----------------------------------
Name: Timothy J.P. Moran
Title: Treasurer
Address:
c/o Chicago Bridge & Iron Company
Town Center One
1450 Lake Robbins Drive
Suite 400
The Woodlands, TX 77380
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
1501 N. Division Street
Plainfield, Illinois 60544-8984
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (815) 439-6000
Facsimile No.: (815) 439-4050
115
CBI SERVICES, INC., as a Subsidiary
Borrower
By: /s/ Dennis C. Planic
---------------------------------
Name: Dennis C. Planic
Title: Treasurer
Address:
1503 N. Division Street
Plainfield, Illinois 60544-8984
Attention: Treasurer
Telephone No.: (815) 439-6000
Facsimile No.: (815) 439-4050
with a copy to:
Chicago Bridge & Iron Company
Town Center One
1450 Lake Robbins Drive
Suite 400
The Woodlands, TX 77380
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
116
CHICAGO BRIDGE & IRON COMPANY (DELAWARE), as a
Subsidiary Borrower
By: /s/ Timothy J.P. Moran
-----------------------------------
Name: Timothy J.P. Moran
Title: Treasurer
Address:
c/o Chicago Bridge & Iron Company
Town Center One
1450 Lake Robbins Drive
Suite 400
The Woodlands, TX 77380
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
1501 N. Division Street
Plainfield, Illinois 60544-8984
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (815) 439-6000
Facsimile No.: (815) 439-4050
117
CB&I TYLER COMPANY, as a Subsidiary
Borrower
By: /s/ Timothy J.P. Moran
-----------------------------------
Name: Timothy J.P. Moran
Title: Treasurer
Address:
c/o Chicago Bridge & Iron Company
Town Center One
1450 Lake Robbins Drive
Suite 400
The Woodlands, TX 77380
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
1501 N. Division Street
Plainfield, Illinois 60544-8984
Attention: Richard E. Goodrich, Executive Vice
President & Chief Financial Officer
Telephone No.: (815) 439-6000
Facsimile No.: (815) 439-4050
118
BANK ONE, NA (having its principal office in
Chicago, Illinois), as Administrative Agent and
as a Lender
By: /s/ Suzanne Ergastolo
----------------------------------
Name: Suzanne Ergastolo
Title: Vice President
Notice Address:
One Bank One Plaza
Chicago, Illinois 60670
Attention: Nathan Bloch
Telephone: (312) 732-2243
Facsimile: (312)732-1117
Lending Installation Address:
One Bank One Plaza
Chicago, Illinois 60670
119
BANK OF AMERICA, N.A., as Syndication
Agent and as a Lender
By: /s/ Kenneth J. Beck
--------------------------------
Name: Kenneth J. Beck
Title: Principal
Notice Address:
Bank of America, N.A.
555 California Street
San Francisco, CA 94104-1503
Attention: Kenneth J. Beck
Telephone: (415) 953-5753
Facsimile: (415) 622-4585
Lending Installation Address:
Bank of America, N.A.
CA9-706-11-07
555 South Flower Street
Los Angeles, CA 90071
120
HARRIS TRUST AND SAVINGS BANK, as
Documentation Agent and as a Lender
By: /s/ Shahrokh Z. Shah
---------------------------------
Name: Shahrokh Z. Shah
Title: Managing Director
Notice Address:
111 W. Monroe Street
5th Floor West
Chicago, Illinois 60603
Attention: Shahrokh Z. Shah
Telephone: (312) 293-8353
Facsimile: (312) 293-5852
Lending Installation Address:
111 W. Monroe Street
5th Floor West
Chicago, Illinois 60603
121
ABN AMRO BANK N.V., as a Lender
By: /s/ Mary L. Honda
------------------------------
Name: Mary L. Honda
Title: Group Vice President
By: /s/ Charles H. Fowler
----------------------------------
Name: Charles H. Fowler
Title: Vice President
Notice Address:
135 S. LaSalle Street
Chicago, Illinois 60603
Attention: Thomas Comfort
Telephone: (312) 904-6587
Facsimile: (312) 606-8425
Lending Installation Address:
135 S. LaSalle Street
Chicago, Illinois 60603
122
THE CHASE MANHATTAN BANK, as a Lender
By: /s/ Kevin Murphy
-----------------------------
Name: Kevin Murphy
Title: Vice President
Notice Address:
The Chase Manhattan Bank
52 Broadway - 6th Floor
New York, NY 10004
Attention: Kevin Murphy
Telephone: (212) 701-4091
Facsimile: (212) 509-2619
Lending Installation Address:
The Chase Manhattan Bank
52 Broadway - 6th Floor
New York, NY 10004