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EXHIBIT 10.21
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CREDIT AGREEMENT
dated as of
September 30, 1999
among
CHICAGO BRIDGE & IRON COMPANY N.V.
The Lenders Party Hereto
and
BANK ONE, NA
as Administrative Agent
BANC ONE CAPITAL MARKETS, INC.
as Lead Arranger
and
BANK OF MONTREAL
as Co-Arranger and Syndication Agent
and
THE CHASE MANHATTAN BANK
as Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE IDefinitions.......................................................1
SECTION 1.01. Defined Terms......................................1
SECTION 1.02. Classification of Loans and Borrowings............23
SECTION 1.03. Terms Generally...................................23
SECTION 1.04. Accounting Terms; GAAP............................24
ARTICLE IIThe Credits.....................................................24
SECTION 2.01. Commitments.......................................24
SECTION 2.02. Loans and Borrowings..............................25
SECTION 2.03. Requests for Revolving Borrowings.................25
SECTION 2.04. Swing Line Loans..................................26
SECTION 2.05. Letters of Credit.................................32
SECTION 2.06. Funding of Borrowings.............................39
SECTION 2.07. Interest Elections................................40
SECTION 2.08. Termination and Reduction of Commitments..........42
SECTION 2.09. Repayment of Loans; Evidence of Debt..............42
SECTION 2.10. Prepayment of Loans...............................43
SECTION 2.11. Fees..............................................44
SECTION 2.12. Interest..........................................45
SECTION 2.13. Alternate Rate of Interest........................47
SECTION 2.14. Increased Costs...................................47
SECTION 2.15. Break Funding Payments............................49
SECTION 2.16. Taxes.............................................50
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...............................51
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders...........................................53
SECTION 2.19. Borrowing Subsidiaries............................54
ARTICLE IIIRepresentations and Warranties.................................55
SECTION 3.01. Organization; Powers..............................55
SECTION 3.02. Authorization; Enforceability.....................55
SECTION 3.03. Governmental Approvals; No Conflicts..............55
SECTION 3.04. Financial Condition; No Material Adverse
Change............................................56
SECTION 3.05. Properties........................................56
SECTION 3.06. Litigation and Environmental Matters..............56
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SECTION 3.07. Compliance with Laws and Agreements...............57
SECTION 3.08. Investment and Holding Company Status.............57
SECTION 3.09. Taxes.............................................57
SECTION 3.10. ERISA.............................................58
SECTION 3.11. Disclosure........................................58
SECTION 3.12. Subsidiaries; Guarantors..........................58
SECTION 3.13. Use of Proceeds...................................58
SECTION 3.14. Solvency..........................................59
SECTION 3.15. Federal Reserve Regulations.......................59
SECTION 3.16. Year 2000 Issues..................................59
ARTICLE IVConditions......................................................59
SECTION 4.01. Effective Date....................................59
SECTION 4.02. Each Credit Event.................................61
SECTION 4.03. Initial Borrowing by Each Borrowing
Subsidiary........................................62
ARTICLE VAffirmative Covenants............................................62
SECTION 5.01. Financial Statements and Other
Information.......................................62
SECTION 5.02. Notices of Material Events........................64
SECTION 5.03. Existence; Conduct of Business....................64
SECTION 5.04. Payment of Obligations............................65
SECTION 5.05. Maintenance of Properties; Insurance..............65
SECTION 5.06. Books and Records; Inspection Rights..............65
SECTION 5.07. Compliance with Laws..............................65
SECTION 5.08. Use of Proceeds and Letters of Credit.............66
SECTION 5.09. Further Assurances................................66
SECTION 5.10. Year 2000 Issues..................................67
ARTICLE VINegative Covenants..............................................67
SECTION 6.01. Indebtedness......................................67
SECTION 6.02. Liens.............................................68
SECTION 6.03. Fundamental Changes...............................69
SECTION 6.04. Investments, Loans, Advances, Guarantees
and Acquisitions..................................70
SECTION 6.05. Hedging Agreements................................70
SECTION 6.06. Transactions with Affiliates......................71
SECTION 6.07. Restrictive Agreements............................71
SECTION 6.08. Capital Expenditures..............................71
SECTION 6.09. Consolidated Interest Coverage Ratio..............72
SECTION 6.10. Consolidated Leverage Ratio.......................72
SECTION 6.11. Consolidated Adjusted Net Worth...................72
ARTICLE VIIEvents of Default..............................................72
ARTICLE VIIIThe Administrative Agent......................................75
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ARTICLE IXGuarantee.......................................................78
ARTICLE XMiscellaneous....................................................80
SECTION 10.01. Notices..........................................80
SECTION 10.02. Waivers; Amendments..............................81
SECTION 10.03. Expenses; Indemnity; Damage Waiver...............82
SECTION 10.04. Successors and Assigns...........................84
SECTION 10.05. Survival.........................................87
SECTION 10.06. Counterparts; Integration;
Effectiveness....................................87
SECTION 10.07. Severability.....................................88
SECTION 10.08. Right of Setoff..................................88
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process...............................88
SECTION 10.10. WAIVER OF JURY TRIAL.............................89
SECTION 10.11. Headings.........................................89
SECTION 10.12. Confidentiality..................................89
SECTION 10.13. Interest Rate Limitation.........................90
SECTION 10.14. Conversion of Currencies.........................91
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SCHEDULES:
Schedule 1.01 -- Material Subsidiaries and Foreign Subsidiaries that are not
Excluded Foreign Subsidiaries
Schedule 2.01 -- Commitments
Schedule 3.06 -- Litigation and Environmental Matters
Schedule 3.07 -- Compliance with Laws and Agreements
Schedule 3.12 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.09 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of U.S. Counsel for the Borrowers
Exhibit C -- Form of Opinion of Netherlands Counsel for the Borrowers
Exhibit D -- Form of Borrowing Subsidiary Agreement
Exhibit E -- Form of Borrowing Subsidiary Termination
Exhibit F -- Guarantor Agreement
Exhibit G-1 -- Alternate Currency Addendum-Australian Borrower
Exhibit G-2 -- Alternate Currency Addendum-Canadian Borrower
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CREDIT AGREEMENT dated as of September 30,
1999, among CHICAGO BRIDGE & IRON COMPANY N.V., the
BORROWING SUBSIDIARIES party hereto, the LENDERS
party hereto, BANK ONE, NA, as Administrative Agent,
Bank of Montreal, as Syndication Agent, and The Chase
Manhattan Bank, as Co-Agent.
The Borrowers (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned to it in Article I)
have requested the Lenders to establish the credit facilities provided for
herein to be used for the general corporate purposes of the Borrowers. The
Lenders are willing to establish such credit facilities upon the terms and
subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Bank One, NA, in its capacity as
administrative agent for the Lenders hereunder.
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"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement Currency" has the meaning assigned to such term in
Section 10.14.
"Alternate Base Rate" means, for any day, a fluctuating rate
of interest per annum equal to the higher of (i) the Corporate Base 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.
"Alternate Currency" shall mean any Eligible Currency which
the applicable Borrower requests a Swing Line Lender to include as an Alternate
Currency hereunder and which is acceptable to such Swing Line Lender and with
respect to which an Alternate Currency Addendum has been executed by the
applicable Borrower and the applicable Swing Line Lender in connection
therewith.
"Alternate Currency Addendum" means an addendum substantially
in the form of Exhibits G-1 or G-2 with such modifications thereto as shall be
approved by the applicable Swing Line Lender.
"Alternate Currency Borrower" means each of the Borrower's
Foreign Subsidiaries, whether now existing or hereafter formed, that is a party
to an Alternate Currency Addendum and its respective successors and assigns.
"Alternate Currency Interest Period" means, with respect to
any Alternate Currency Loan, the Interest Period as set forth on the applicable
Alternate Currency Addendum.
"Alternate Currency Loan" means any Swing Line Loan
denominated in an Alternate Currency made to an Alternate Currency Borrower
pursuant to Section 2.04 and an Alternate Currency Addendum.
"Alternate Currency Rate" means, for any day for any Alternate
Currency Loan, the per annum rate of interest
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selected by the applicable Alternate Currency Borrower under and as set forth in
the applicable Alternate Currency Addendum.
"Applicable Creditor" has the meaning assigned to such term in
Section 10.14.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to the
Eurodollar Revolving Loans, the facility fees payable hereunder or the Committed
Letters of Credit, as the case may be, the applicable rate per annum set forth
below under the caption "Eurodollar Spread", "Facility Fee Rate", or "L/C
Participation Fees", as the case may be, based upon the Consolidated Leverage
Ratio as set forth below:
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Consolidated Leverage Eurodollar Facility Fee L/C Participation Fees
Categories: Ratio Spread Rate Performance L/Cs Standby L/Cs
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Category 1 Less than 1.0 to 1.0 .675% .200%
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Category 2 Greater than or equal
to 1.0 to 1.0 but
less than 1.5 to 1.0 .750% .250%
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Category 3 Greater than or equal 75% of the 100% of the
to 1.5 to 1.0 but 1.00% .250% Applicable Rate Applicable Rate
less than 2.0 to 1.0 for Eurodollar for Eurodollar
Revolving Loans Revolving Loans
- -------------------------------------------------------------------
Category 4 Greater than or equal
to 2.0 to 1.0 1.20% .300%
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Except as set forth below, the Consolidated Leverage Ratio used on any date to
determine the Applicable Rate shall be that in effect at the fiscal quarter end
next preceding the Financial Statement Delivery Date occurring on or most
recently prior to such date; provided that from the date hereof until the
Financial Statement Delivery Date next following December 31, 1999, the
Eurodollar Spread, Facility Fee and L/C Participation Fees will be determined by
reference to Category 2; provided further, that if any Financial Statement
Delivery Date shall have occurred and the financial statements required to have
been delivered under Section 5.01(a) or (b) by such date have not yet been
delivered, the Applicable Rate shall, until such financial statements shall have
been delivered, be determined by
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reference to the Category next below that in effect immediately prior to such
Financial Statement Delivery Date.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect or (b) Swing Line Loans of the
same Type made on the same date and as to which a single Interest Period is in
effect.
"Borrowing Request" means a request by a Borrower for a
Revolving Borrowing in accordance with Section 2.03 or a Swing Line Loan in
accordance with Section 2.04.
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"Borrowing Subsidiary" means, at any time, any Subsidiary of
the Company designated as a Borrowing Subsidiary by the Company pursuant to
Section 2.19 that has not ceased to be a Borrowing Subsidiary pursuant to such
Section or Article VII.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit D.
"Borrowing Subsidiary Termination" means a Borrowing
Subsidiary Termination substantially in the form of Exhibit E.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in Chicago are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
A "Change in Control" will be deemed to have occurred (a) in
the event of the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof), of shares representing 25% or more
of the aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; and (b) if at any date members of the Company's
board of directors or comparable governing body who were members of such board
or comparable body for a twelve month period prior to such date, or who were
nominated by 2/3 of the members then in office who were members for such period
or who were so nominated, shall cease to constitute a majority of such board of
directors or comparable governing body.
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"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Banks (or, for purposes of Section 2.14(b), by any lending office of
such Lender or by such Lender's or the Issuing Banks' holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Swing Line Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commission" means the United States Securities and Exchange
Commission.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and Swing Line Loans and to
acquire participations in Swing Line Loans and Committed Letters of Credit
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial amount of each Lender's Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments is $100,000,000.
"Committed LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Committed Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements under Committed
Letters of Credit that have not yet been reimbursed by or on behalf of the
applicable Borrower at such time. The Committed LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total Committed LC Exposure at
such time.
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"Committed Letter of Credit" means a Letter of Credit issued
pursuant to Section 2.05(b)(i).
"Company" means Chicago Bridge & Iron Company N.V., a
Netherlands Corporation.
"Competitive L/C Exposure" means, at any time, the sum of (a)
the aggregate undrawn amount of all outstanding Competitive Letters of Credit at
such time plus (b) the aggregate amount of all LC Disbursements under
Competitive Letters of Credit that have not yet been reimbursed by or on behalf
of the applicable Borrower at such time. The Competitive LC Exposure of any
Lender at any time shall be the portion of the aggregate Competitive LC Exposure
attributable to Competitive Letters of Credit issued by it.
"Competitive Letter of Credit" means a Letter of Credit issued
pursuant to Section 2.05(b)(ii).
"Competitive Letter of Credit Bid" means an offer by an
Issuing Bank to issue a Competitive Letter of Credit in accordance with Section
2.05(b)(ii).
"Competitive Letter of Credit Bid Rate" means, with respect to
any Competitive Letter of Credit Bid, the fee for which an Issuing Bank would be
willing to issue a Competitive Letter of Credit, expressed as a percentage rate
per annum on the face amount of such Letter of Credit.
"Competitive Letter of Credit Request" means a request by a
Borrower for Competitive Letter of Credit Bids in accordance with Section
2.05(b)(ii).
"Consolidated Adjusted Net Worth" means total shareholders'
equity of the Company and its consolidated Subsidiaries but excluding cumulative
foreign currency translation adjustments and the after-tax effect of any
non-cash charge up to an amount not to exceed $25,000,000 in connection with any
write-off of the Tuban Receivables, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Capital Expenditures" means, for any period, all
additions to property, plant and equipment and other capital expenditures of the
Company and its consolidated Subsidiaries (including assets acquired pursuant to
capital leases) that are (or would be) reflected in a consolidated statement of
cash flow of the Company for
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such period prepared in accordance with GAAP. Consolidated Capital Expenditures
during any period shall exclude 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,
but shall not otherwise be reduced by dispositions of property, plant or
equipment during such period.
"Consolidated EBIT" means, for any period, the Consolidated
Net Income of the Company and its consolidated Subsidiaries for such period
plus, to the extent deducted in computing such Consolidated Net Income and
without duplication, the sum of (a) income tax expense, (b) Consolidated
Interest Expense, (c) any other non-cash charges, and (d) extraordinary losses
during such period, minus, to the extent added in computing such Consolidated
Net Income and without duplication, (y) any non-cash income and (z)
extraordinary gains during such period, all determined on a consolidated basis
in accordance with GAAP.
"Consolidated EBITDA" means, for any period, the Consolidated
Net Income of the Company and its consolidated Subsidiaries for such period
plus, to the extent deducted in computing such Consolidated Net Income and
without duplication, the sum of (a) income tax expense, (b) Consolidated
Interest Expense, (c) depreciation and amortization expense, (d) any other
non-cash charges, and (e) extraordinary losses during such period, minus, to the
extent added in computing such Consolidated Net Income and without duplication,
(y) any non-cash income and (z) extraordinary gains during such period, all
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
gross interest expense of the Company and its consolidated Subsidiaries,
including (i) the portion of any payments or accruals with respect to Capital
Lease Obligations allocable to interest expense, (ii) capitalized interest
expense, (iii) pay-in-kind interest expense and (iv) the amortization of debt
discounts, all as determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" means, at any time, the ratio of
(a) Total Debt at such time to (b) Consolidated EBITDA for the most recent
period of four consecutive fiscal quarters of the Company ended at or prior to
such time.
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"Consolidated Net Income" means, for any period, the net
income (or loss) of the Company and its consolidated Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP consistently
applied; provided that in determining Consolidated Net Income there shall be
excluded (a) that portion of the income and expenses of any Subsidiary
attributable to a joint interest therein held by any person, other than the
Company or any of the Subsidiaries or any director holding qualifying shares in
accordance with applicable law, and (b) the income (or loss) of any person
accrued prior to the date it becomes a Subsidiary of the Company or is merged
into or consolidated with the Company or any of the Subsidiaries or the date
that person's assets are acquired by the Company or any of the Subsidiaries.
"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.
"Corporate Base Rate" means the rate of interest per annum
publicly announced from time to time by Bank One, NA as its corporate base rate
of interest in effect at its principal office in Chicago; each change in the
Corporate Base Rate shall be effective from and including the date such change
is publicly announced as being effective.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Subsidiary" has the meaning assigned to such term
in Section 5.09.
"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
Amount of Dollars if such currency is any currency other than Dollars.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Borrowing Subsidiary" means any Borrowing Subsidiary
that is a Domestic Subsidiary.
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"Domestic Subsidiary" means any Subsidiary that is organized
under the laws of any jurisdiction in the United States.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.02).
"Eligible Currency" means any currency other than Dollars with
respect to which the Administrative Agent or the applicable Borrower has not
given notice in accordance with Section 2.04(j) and that is readily available,
freely traded, in which deposits are customarily offered to banks in the London
interbank market, convertible into Dollars in the international interbank market
available to the Lenders in such market and as to which an Equivalent Amount may
be readily calculated. If, after the designation by the Lenders of any currency
as an Alternate Currency, (i) currency control or other exchange regulations are
imposed in the country in which such currency is issued with the result that
different types of such currency are introduced, such country's currency is, in
the determination of the Administrative Agent, no longer readily available or
freely traded or (ii) as to which, in the determination of the Administrative
Agent, an Equivalent Amount is not readily calculable (each of clause (i) and
(ii), a "DISQUALIFYING EVENT"), then the Administrative Agent shall promptly
notify the Lenders and the applicable Borrower, and such country's currency
shall no longer be an Alternate Currency until such time as the Disqualifying
Event(s) no longer exist, but in any event within five (5) Business Days of
receipt of such notice from the Administative Agent, the applicable Borrower
shall repay all Loans in such currency to which the Disqualifying Event applies
or convert such Loan into Loans in Dollars or another Alternate Currency,
subject to the other terms contained in Article II.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices imposing
requirements or binding agreements issued, promulgated or entered into by any
Governmental Authority, which relate in any way to the environment, preservation
or reclamation of natural resources, or the management, release or threatened
release of any Hazardous Material or to health and safety matters.
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"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, or legally enforceable agreement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.
"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 arithmetic mean of the buy and sell
spot rates of exchange of the Administrative Agent or applicable Swing Line
Lender, as applicable, in the London interbank market (or other market where the
Administrative Agent's or applicable Swing Line Lender's, as applicable, foreign
exchange operations in respect of such currency are then being conducted) for
such other currency at or about 11:00 a.m. (local time) two (2) Business Days
prior to the date on which such amount is to be determined, rounded up to the
nearest amount of such currency as determined by the applicable Swing Line
Lender from time to time; provided, however, that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent or applicable Swing Line Lender, as applicable, may use any
reasonable method it deems appropriate to determine such amount, and such
determination shall be conclusive absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for
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which the 30-day notice period is waived); (b) the existence with respect to any
Plan of an "accumulated funding deficiency" (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by the Company or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by the Company or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (f) the incurrence by the Company or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Foreign Subsidiary" means any Foreign Subsidiary
other than those listed as Foreign Subsidiaries that are not Excluded Foreign
Subsidiaries on Schedule 1.01.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of any Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which a Borrower is located and (c) in the case of
a Foreign Lender (other than an assignee pursuant to a request
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by a Borrower under Section 2.18(b)), (I) any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from a Borrower with respect to such withholding tax pursuant
to Section 2.16(a) and (II) any withholding tax that is attributable to such
Foreign Lender's failure to comply with Section 2.16(e).
"Existing Indebtedness" has the meaning assigned to such term
in Section 6.01.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" of any Person, means the chief financial
officer, principal accounting officer, treasurer or controller of such Person.
"Financial Statement Delivery Date" means the 120th day
following the end of each fiscal year of the Company, and the 60th day following
the end of each of the first three fiscal quarters in each fiscal year of the
Company.
"Foreign Lender" means, with respect to any Loan, any Lender
making such Loan that is organized under the laws of a jurisdiction other than
the Relevant Jurisdiction. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not
organized under the laws of any jurisdiction in the United States.
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"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
(i) endorsements for collection or deposit in the ordinary course of business,
(ii) guarantees by the Company or any Subsidiary of Indebtedness of any
Subsidiary or the Company, (iii) guarantees by the Company or any Subsidiary of
performance bonds and letters of credit 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, (iv) guarantees by the Company or any
Subsidiary of the performance of the obligations of any Subsidiary of the
Company or (v) guarantees of the obligations of the Company or any Subsidiary
under any Hedging Agreement not prohibited by this Agreement.
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"Guarantor Agreement" means a Guarantor Agreement in the form
of Exhibit F.
"Guarantors" means the Company and the Subsidiary Guarantors.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas at levels regulated
by relevant Governmental Authorities, and all other substances or wastes
regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity or security
price hedging arrangement or credit derivative.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party or
party responsible for reimbursement of payments made in respect of letters of
credit, letters of guaranty and surety bonds, (j) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances and (k) all
repurchase obligations or liabilities of such Person or any of the subsidiaries
with respect to receivables sold by such Person or any of its
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subsidiaries in any securitization transaction. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. Notwithstanding
the foregoing definition, Indebtedness shall not include any 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
Company and Praxair, as amended from time to time.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by a Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, (b) with respect
to any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, (c) with respect
to each Swing Line Loan denominated in Dollars which is not an ABR Loan, the
agreed upon maturity, and (d) with respect to each Alternate Currency Loan, on
the date prescribed in the applicable Alternate Currency Addendum.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect, and (b) with respect
to any Alternate Currency Borrowing, the Alternate Currency Interest Period;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such
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Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Revolving Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"Issuing Banks" means the Lenders designated as issuers of
Letters of Credit in Schedule 2.01 and each other Lender that shall agree from
time to time to serve as an Issuing Bank in an instrument executed by such
Lender, the Company and the Administrative Agent. Each Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Bank, in which case the term "Issuing Banks" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"Judgment Currency" has the meaning assigned to such term in
Section 10.14.
"LC Disbursement" means a payment made by an Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means the aggregate amount of the Committed LC
Exposure and the Competitive LC Exposure.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means any Committed Letter of Credit or
Competitive Letter of Credit.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such
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Service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurodollar Borrowing for such Interest Period shall
be the rate at which dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans or other financial accommodations made
by the Lenders to the Borrowers pursuant to this Agreement and any Alternate
Currency Addendum, including, without limitation, any financial accommodation
provided by a Lender to a Borrower with respect to bankers' acceptances accepted
by such Lender.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole or (b) the
ability of the Company to perform its obligations under this Agreement.
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"Material Indebtedness" means Indebtedness (other than the
Obligations), or obligations in respect of one or more Hedging Agreements, of
any one or more of the Company and its Subsidiaries in an aggregate principal
amount exceeding $5,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount that the Company or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Material Subsidiary" means (a) any Borrowing Subsidiary, (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 5.01 were greater than 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 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 10% of the Company's
consolidated net revenues for any such fiscal year or 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 date hereof
are identified in Schedule 1.01 hereto.
"Maturity Date" means the third anniversary of the date of
this agreement.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
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"Obligations" means all obligations of the Borrowers and the
Guarantors under this Agreement and the Borrowing Subsidiary Agreements with
respect to the payment of (i) the principal of and interest on the Loans and LC
Disbursements when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) all payment obligations of any
Borrower with respect to bankers' acceptances accepted by any Lender pursuant to
this Agreement and any applicable Alternate Currency Addendum and (iii) all
other monetary obligations of the Borrowers and Guarantors hereunder and
thereunder.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"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" means any acquisition by the Company
or a Subsidiary of a majority of the capital stock (other than directors'
qualifying shares) of any other Person, or of assets of any Person constituting
a division or other business unit; provided that (a) the Company would be
permitted to engage in the business conducted by such Person or Business unit
under Section 6.04(b), (b)the acquisition is consummated pursuant to a
negotiated acquisition agreement on a nonhostile basis and approved by the board
of directors of the Person whose stock or assets are being acquired prior to
consummation of such acquisition and (c) prior to such acquisition, the Company
shall deliver to the Administrative Agent and the Lenders a certificate
demonstrating to the satisfaction of the Administrative Agent that after giving
effect to such acquisition, on a pro forma basis in respect of each such
acquisition as if the acquisition had occurred on the first day of the 12-month
period ending on the last day of the Company's most recently
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completed fiscal quarter, the Company would have been in compliance with the
financial covenants in Sections 6.08, 6.09, 6.10 and 6.11 and not otherwise in
Default.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 60 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance, old age pension and other social security laws or
regulations;
(d) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Company or any
Subsidiary.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or
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guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof
which has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above;
(e) shares of money market, mutual or similar funds having
assets in excess of $100,000,000 and the investments of which are
limited to investment grade securities (i.e., securities rated at least
Baa by Moody's or at least BBB by S&P) and 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; and
(f) Investments in overnight Eurodollar deposits at offshore
branches of the Administrative Agent pursuant to the Administrative
Agent's Overnight Automatic Sweep Investment Service.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) a "contributing sponsor" as defined in Section
4001 (a)(13) of ERISA.
"Register" has the meaning set forth in Section 10.04.
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"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Relevant Jurisdiction" means (i) in the case of any loan to
any Domestic Borrowing Subsidiary, the United States of America, and (ii) in the
case of any Loan to the Company and to any other Borrowing Subsidiary, the
jurisdiction imposing (or having the power to impose) withholding tax on
payments by the Company or such Borrowing Subsidiary under this Agreement.
"Rentals" of a Person means the aggregate fixed amounts
payable by such Person under any lease of real or personal property but does not
include any amounts payable as Capital Lease Obligations of such Person.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing greater than 50%
of the sum of the total Revolving Credit Exposures and unused Commitments at
such time; provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article VII, and for all purposes after the Loans become due
and payable pursuant to Article VII or the Commitments expire or terminate, the
outstanding Competitive LC Exposures of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its Committed LC Exposure at such time and the outstanding
principal balance of such Lender's participations in Swing Line Loans.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Standby Letter of Credit" means any Letter of Credit other
than a Performance Letter of Credit.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one
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minus the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guarantor" means each Subsidiary that is
delivering a Guarantor Agreement on the date hereof and each other Subsidiary
that becomes a Guarantor in accordance with Section 5.09.
"Swing Line Lender" means Bank One, NA or any other Lender (or
any Affiliate, branch or agency thereof) with a Swing Line Commitment. If any
agency, branch or Affiliate of any Lender shall be a party to an Alternate
Currency Addendum, such agency, branch or Affiliate shall, to the extent of any
commitment extended and any Loans made by it, have all the rights of such Lender
hereunder; provided, however, that such Lender shall to the exclusion
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of such agency, branch or Affiliate, continue to have all the voting rights
vested in it by the terms hereof.
"Swing Line Commitment" means the obligation of a Swing Line
Lender to make Swing Line Loans up to a maximum principal amount at any one time
outstanding not in excess of such Swing Line Lender's Swing Line Commitment as
set forth on Schedule 2.01.
"Swing Line Loan" means a Loan made available to the Borrower
by the Swing Line Lender pursuant to Section 2.04 hereof.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Debt" means, at any date, all Indebtedness of the
Company and its consolidated Subsidiaries on a consolidated basis at such date,
other than performance and surety bonds and letters of credit securing 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.
"Transactions" means the execution, delivery and performance
by the Borrowers and the Guarantors of this Agreement, the Borrowing Subsidiary
Agreements and the Guarantor Agreements, the borrowing of Loans and obtaining of
Letters of Credit, the use of the proceeds of such Loans and the use of such
Letters of Credit.
"Tuban Receivables" means the receivables related to the PT.
Trans-Pacific Petrochemical Indotama project in Tuban, Indonesia, where the
Company is a subcontractor for petrochemical storage facilities.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Wholly Owned Subsidiary" means a subsidiary, all the capital
stock of which (other than directors' qualifying shares), is owned by the
Company or another Wholly Owned Subsidiary.
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"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Year 2000 Issues" means, with respect to any Person,
anticipated costs, problems and uncertainties associated with the inability of
certain computer applications and imbedded systems to effectively handle data,
including dates, prior to, on and after January 1, 2000, as it affects the
business, operations, and financial condition of such Person, and such Person's
customers, suppliers and vendors.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., "Revolving Loan" or "Swing Line Loan") or by Type (e.g., "ABR Loan" or
"Eurodollar Loan") or by Class and Type (e.g., a "Eurodollar Revolving Loan").
Borrowings also may be classified and referred to by Class (e.g., a "Revolving
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning
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and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrowers
from time to time during the Availability Period in an aggregate principal
amount that will not result in (a) such Lender's Revolving Credit Exposure
exceeding such Lender's Commitment or (b) the sum of the aggregate Revolving
Credit Exposures plus the aggregate Competitive L/C Exposures exceeding the
aggregate Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, repay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
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(b) Subject to Section 2.13, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the applicable Borrower
may request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided, that any exercise of such option shall not
affect the obligation of any Borrower to repay such Loan in accordance with the
terms of this Agreement; provided further, that to the extent any Lender shall
exercise such option in a manner inconsistent with its mitigation obligations
under Section 2.18(a), such Lender shall not be entitled to compensation under
Section 2.14 or 2.16 for any resulting cost, reduction in amounts received or
receivable or reduction in return.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $4,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$4,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments or
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Borrowings of more than one Type and Class may
be outstanding at the same time; provided that there shall not at any time be
more than a total of seven Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, a
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, a Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
10:00 a.m., Chicago time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00 a.m.,
Chicago time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as
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contemplated by Section 2.05(e) may be given not later than 9:00 a.m., Chicago
time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the applicable Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the relevant Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the relevant Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Swing Line Loans. (a) (i) Upon the satisfaction
of the conditions precedent set forth in this Article II and in Article IV
hereof and set forth in the applicable Alternate Currency Addendum, from and
including the later of the date of this Agreement and the date of execution of
the applicable Alternate Currency Addendum, if any, and prior to the Maturity
Date (unless an earlier maturity date shall be specified in or pursuant to any
applicable Alternate Currency Addendum), each Swing Line
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Lender agrees, on the terms and conditions set forth in this Agreement and in
any applicable Alternate Currency Addendum, to make Swing Line Loans, including
Alternate Currency Loans, from time to time in Dollars or in the applicable
Alternate Currency in an amount not to exceed such Swing Line Lender's
applicable Swing Line Commitment as specified on Schedule 2.01, provided,
however, at no time shall the Dollar Amount of the outstanding principal amount
of the Loans in Australian Dollars to CBI Constructors Pty. Ltd., a company
organized under the laws of Australia, exceed U.S. $8,000,000 (other than as a
result of currency exchange rate fluctuations and then only to the extent
permitted in this Section 2.04), at no time shall the Dollar Amount of the
outstanding principal amount of Loans in Canadian Dollars to Horton CBI Limited,
a company organized under the laws of Canada, exceed U.S.$8,000,000 (other than
as a result of currency exchange rate fluctuations and then only to the extent
permitted in this Section 2.04), and at no time shall the amount of the
outstanding principal amount of Swing Line Loans made in Dollars to Chicago
Bridge & Iron Company (Delaware), a corporation organized under the laws of the
State of Delaware, exceed U.S.$10,000,000.
(ii) Subject to the terms of this Agreement and the applicable
Alternate Currency Addendum, if any, the applicable Alternate Currency Borrower
may borrow, repay and reborrow Swing Line Loans, including Alternate Currency
Loans, at any time prior the Maturity Date (unless an earlier maturity date
shall be specified in or pursuant to the applicable Alternate Currency
Addendum). On the Maturity Date, the outstanding principal balance of all Swing
Line Loans, including all Alternate Currency Loans, shall be paid in full by the
applicable Borrower in the currency in which such Swing Line Loan was borrowed.
(b) When a Borrower desires to borrow under this Section 2.04,
the applicable Borrower shall deliver to the applicable Swing Line Lender, a
Borrowing Request signed by it not later than 10:00 a.m. (local time for the
office designated by such Swing Line Lender) at the office designated by the
Swing Line Lender and the Administrative Agent specifying that such Borrower is
requesting a Swing Line Loan pursuant to this Section 2.04 specifying (i) the
applicable borrowing date which shall be a Business Day, (ii) the aggregate
amount of the requested Swing Line Loan, (iii) whether such Borrowing shall be
an ABR Borrowing or shall accrue interest at a rate agreed upon with the
applicable Swing Line Bank or as prescribed in the
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Applicable Alternate Currency Addendum, (iv) the currency which the Borrower
desires to borrow, (v) if applicable, the interest period and (vi) if such Swing
Line Loan is denominated in Dollars and bears interest at a rate other than the
Alternate Base Rate, the agreed upon maturity of such Loan. Any Swing Line Loan
denominated in Dollars shall be in a minimum amount agreed to by the applicable
Swing Line Lender or an integral multiple as may be agreed to by the applicable
Swing Line Lender. Any other Swing Line Loan shall be in the minimum amount
specified in the applicable Alternate Currency Addendum. Any Borrowing Request
given pursuant to this Section 2.04 shall be irrevocable. The designation of an
agreed upon rate and maturity shall constitute a representation by the
applicable Borrower that the applicable Swing Line Lender has agreed to such
rate and maturity.
(c) Promptly after receipt of the Borrowing Request pursuant
to Section 2.04(b) in respect of any Swing Line Loan, any Swing Line Lender
other than the Administrative Agent shall notify the Administrative Agent by
telecopy or other similar form of transmission of the requested Swing Line Loan.
Not later than 3:00 p.m. (local time for the office designated by the applicable
Swing Line Lender) on the applicable borrowing date, the applicable Swing Line
Lender shall make available its Swing Line Loan to the applicable Borrower.
(d) Each Swing Line Lender shall furnish to the Administrative
Agent on the date of such Borrowing and at any other time at the reasonable
request of the Administrative Agent, a statement setting forth the outstanding
Swing Line Loans made and repaid during the period since the last such report.
(e) Immediately upon the making of any Swing Line Loan, each
Lender shall be deemed to have automatically, irrevocably and unconditionally
purchased and received from the Swing Line Lender an undivided interest and
participation in and to such Swing Line Loan in an amount equal to each such
Lender's Applicable Percentage of the Dollar Amount of such Swing Line Loan.
(f) (i) Each Swing Line Loan denominated in Dollars shall be
paid in full or, provided the conditions set forth in Article II and Article IV
hereof and in any applicable Alternate Currency Addendum are satisfied,
continued as a Swing Line Loan by the applicable Borrower on
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or before the 14th Business Day after the borrowing date for such Swing Line
Loan. Each Swing Line Loan denominated in any Alternate Currency shall be paid
in full or, provided the conditions set forth in Article II and Article IV
hereof and in any applicable Alternate Currency Addendum are satisfied,
continued as a Swing Line Loan by the applicable Borrower on or before the 14th
Business Day after the borrowing date for such Swing Line Loan or on any other
maturity agreed to by the applicable Swing Line Lender and the applicable
Borrower with respect to such Swing Line Loan or the end of the interest period
agreed to by the applicable Swing Line Lender and the applicable Borrower with
respect to such Swing Line Loan. Each Borrower may at any time pay, subject to
the provisions of Section 2.15, all outstanding Swing Line Loans or, in a
minimum Dollar Amount of $100,000, any portion of the outstanding Swing Line
Loans. In addition, the applicable Swing Line Lender may at any time in its sole
discretion with respect to any outstanding Swing Line Loan denominated in
Dollars, require each Lender to make a Revolving Loan in the amount of such
Lender's Applicable Percentage of such Swing Line Loan for the purpose of
repaying such Swing Line Loan which Revolving Loans shall be made as prescribed
in Section 2.06.
(ii) If any Lender fails to make the required Revolving Loan
available to the Administrative Agent, such Lender shall unconditionally
purchase from the applicable Swing Line Lender, without recourse or warranty, an
undivided interest and participation in each Swing Line Loan which has been made
in Dollars, ratably in accordance with such Lender's Applicable Percentage
multiplied by the amount of such Loan. Each such Lender shall pay to the
applicable Swing Line Lender not later than one (1) Business Day following a
request for payment from such Swing Line Lender an amount equal to the undivided
interest in and participation in each Swing Line Loan made in Dollars deemed
purchased by such Lender pursuant to Section 2.04(e).
(g) (i) Immediately and automatically upon the occurrence of
an Event of Default under subsection (a), (h) or (i) of Article VII and at any
other time upon the request of the applicable Swing Line Lender, each Lender
shall unconditionally purchase from the applicable Swing Line Lender, without
recourse or warranty, an undivided interest and participation in each Swing Line
Loan which was made as an Alternate Currency Loan, ratably in accordance with
such Lender's Applicable Percentage multiplied by the amount of such Loan, and
immediately and automatically all Alternate
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Currency Loans shall be converted to and redenominated in Dollars equal to the
Dollar Amount of such Alternate Currency Loan determined as of the date of such
conversion.
(ii) Each of the Lenders shall pay to the applicable Swing
Line Lender not later than one (1) Business Day following a request for payment
from such Swing Line Lender, in Dollars, an amount equal to the undivided
interest in and participation in each Swing Line Loan which was made as an
Alternate Currency Loan deemed purchased by such Lender pursuant to Section
2.04(e).
(h) (i) In the event that any Lender fails to make payment to
the applicable Swing Line Lender of any amount due under Section 2.04(f) or
Section 2.04(g), 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 from such
Lender an amount sufficient to discharge such Lender's payment obligation as
prescribed in Section 2.04(f) and Section 2.04(g) together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand by the applicable Swing Line Lender and ending on the date
such obligation is fully satisfied. The Administrative Agent will promptly remit
all payments received as provided above to the applicable Swing Line Lender.
(ii) Each Lender's obligation to make the payments prescribed
above shall not be affected by any circumstances including, without limitation,
any setoff, counterclaim, recoupment, defense or other right which such Lender
may have against the Administative Agent, the applicable Swing Line Lender or
any other person, the occurrence or continuance of a Default or an Event of
Default, any adverse change in the condition (financial or otherwise) of any of
the Borrowers or any other circumstances, happening or event whatsoever.
(iii) All interest payable to a Swing Line Lender with respect
to any Swing Line Loan shall be paid by the applicable Borrower to the
applicable Swing Line Lender for the sole account of such Swing Line Lender
unless and until each of the Lenders has made the required Revolving Loan
pursuant to Section 2.04(f) or has purchased and paid for its participation in
the Swing Line Loan as prescribed in Section 2.04(g).
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(iv) Following the making of the Revolving Loans as required
by Section 2.04(f) or the purchase and payment for participation interests as
provided in Section 2.04(g) interest shall accrue for the ratable benefit of all
Lenders that have made such Revolving Loans or purchased and paid for such
participations. Each Swing Line Loan denominated in Dollars shall be an ABR
Borrowing or shall bear interest at such other rate as agreed to by the
applicable Swing Line Lender and the applicable Borrower. Each Swing Line Loan
that is an Alternate Currency Loan shall bear interest as prescribed in the
applicable Alternate Currency Addendum.
(i) The specification of payment of Alternate Currency Loans
in the related Alternate Currency at a specific place pursuant to this Agreement
is of the essence. Such Alternate Currency shall be the currency of account and
payment of such Loans under this Agreement and the applicable Alternate Currency
Addendum. Notwithstanding anything in this Agreement, the obligation of the
applicable Borrower in respect of such Loans shall not be discharged by an
amount paid in any other currency or at another place, whether pursuant to a
judgment or otherwise, to the extent the amount so paid, on prompt conversion
into the applicable Alternate Currency and transfer to such Lender under normal
banking procedure, does not yield the amount of such Alternate Currency due
under this Agreement and the applicable Alternate Currency Addendum. In the
event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer, does not result in payment of the amount of such
Alternate Currency due under this Agreement or the applicable Alternate Currency
Addendum, such Lender shall have an independent cause of action against each of
the Borrowers for the currency deficit.
(j) Notwithstanding the satisfaction of all conditions
referred to in this Agreement with respect to any Loan in any Alternate
Currency, if there shall occur on or prior to the date of such Loan any change
in national or international financial, political or economic conditions or
currency exchange rates or exchange controls which would in the reasonable
opinion of any Borrower, any Swing Line Lender, the Administrative Agent or the
Required Lenders make it impracticable for the Alternate Currency Loans to be
denominated in the Alternate Currency specified by the applicable Borrower, then
the Administrative Agent shall forthwith give notice thereof to such Borrower ,
the applicable Alternate Currency Bank and the Lenders, or the
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applicable Borrower shall give notice to the Administrative Agent, the
applicable Swing Line Lenders and the Lenders, as the case may be, and such
Alternate Currency Loans shall not be denominated in such currency.
(k) To the extent that any Borrower shall be obligated
hereunder to pay in Dollars any Loan denominated in a currency other than
Dollars, such amount shall be paid in Dollars using the Dollar Amount of the
Loan (calculated based upon the Equivalent Amount in effect on the date of
payment thereof) and in the event that the applicable Borrower does not
reimburse the Administrative Agent, and the Lenders are required to fund a
purchase of a participation in such Loan, such purchase shall be made in Dollars
in an amount equal to the Dollar Amount of such Loan (calculated based upon the
Equivalent Amount in effect on the date of payment thereof). Notwithstanding
anything herein to the contrary, the full risk of currency exchange rate
fluctuations shall be borne by the Borrowers and the Borrowers agree to
indemnify and hold harmless each Issuing Bank, the Swing Line Lenders, the
Administrative Agent and the Lenders from and against any loss resulting from
any borrowing denominated in a currency other than in Dollars.
(l) If on the last Business Day of any month the Dollar Amount
of the Obligations exceeds the aggregate amount of the Commitments as a result
of fluctuations in currency exchange rates, the applicable Borrower shall
immediately prepay Loans in an aggregate amount such that after giving effect
thereto, the Dollar Amount of the Obligations is less than or equal to the
aggregate amount of the Commitments. If on the last Business Day of any month
the Dollar Amount of the aggregate outstanding principal amount of the Alternate
Currency Loans in a particular Alternate Currency exceeds the aggregate
Alternate Currency Commitments with respect thereto as a result of fluctuations
in currency exchange rates, the applicable Borrower shall on such day prepay
Alternate Currency Loans in such Alternate Currency in an aggregate amount such
that after giving effect thereto the Dollar Amount of Alternate Currency Loans
in such Alternate Currency is less than or equal to the aggregate Alternate
Currency Commitments with respect thereto.
SECTION 2.05. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, any Borrower may request the issuance of
Committed Letters of Credit for its own account in a form reasonably acceptable
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to the Administrative Agent and the Issuing Banks, and any Borrower may request
the submission of Competitive Letter of Credit Bids pursuant to a Competitive
Letter of Credit Bid Request, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by a Borrower to, or entered
into by a Borrower with, any Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. (i) To request the issuance of a Committed Letter of Credit by any
Issuing Bank (or the amendment, renewal or extension of an outstanding Committed
Letter of Credit), a Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by
such Issuing Bank) to the Issuing Bank selected by such Borrower and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice three (3) Business Days before
issuance requesting the issuance of a Committed Letter of Credit, or identifying
the Committed Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Committed
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Committed Letter of Credit, the name and address of
the beneficiary thereof, whether such Committed Letter of Credit is to be a
Performance Letter of Credit or a Standby Letter of Credit and such other
information as shall be necessary to prepare, amend, renew or extend such
Committed Letter of Credit. The Issuing Bank will issue any Committed Letter of
Credit so requested at the time specified in such notice, subject to the other
terms and conditions set forth herein.
(ii)(1) Subject to the terms and conditions set forth herein,
from time to time during the Availability Period any Borrower may request
Competitive Letter of Credit Bids and may (but shall not have any obligation to)
accept Competitive Letter of Credit Bids and obtain the issuance of Competitive
Letters of Credit. To request Competitive Letter of Credit Bids, a Borrower
shall notify the Administrative Agent of such request by telephone not later
than 10:00 a.m., Chicago time, six Business Days before the date of the proposed
issuance of the Competitive Letter of
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Credit. The Borrowers may submit multiple Competitive Letter of Credit Bid
Requests on the same day. Each such telephonic Competitive Letter of Credit Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Letter of Credit Bid Request in a
form approved by the Administrative Agent and signed by the applicable Borrower.
Each such telephonic and written Competitive Letter of Credit Bid Request shall
specify the Competitive Letter of Credit to be issued, amended, renewed or
extended, the date of issuance, amendment, renewal or extension, the date on
which such Competitive Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Competitive Letter of Credit,
the name and address of the beneficiary thereof, whether such Competitive Letter
of Credit is to be a Performance Letter of Credit or a Standby Letter of Credit
and such other information as shall be necessary to prepare, amend, renew or
extend such Committed Letter of Credit. Promptly following receipt of a
Competitive Letter of Credit Bid Request in accordance with this Section, the
Administrative Agent shall notify the Issuing Banks of the details thereof by
telecopy, inviting the Issuing Banks to submit Competitive Letter of Credit
Bids.
(2) Issuing Banks may (but shall not have any obligation to)
make one or more Competitive Letter of Credit Bids in response to a Competitive
Letter of Credit Bid Request. Each Competitive Letter of Credit Bid must be in a
form approved by the Administrative Agent and must be received by the
Administrative Agent by telecopy not later than 8:30 a.m., Chicago time, four
Business Days before the proposed issue date of such Competitive Letter of
Credit. Competitive Letter of Credit Bids that do not conform substantially to
the form approved by the Administrative Agent may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the applicable
Issuing Banks as promptly as practicable. Each Competitive Letter of Credit Bid
shall specify the Competitive Letter of Credit Bid Rate at which the Issuing
Bank is prepared to issue the requested Competitive Letter of Credit (expressed
as a percentage rate per annum in the form of a decimal to no more than four
decimal places).
(3) The Administrative Agent shall promptly notify the
applicable Borrower by telecopy of the Competitive Letter of Credit Bid Rate
specified in each Competitive Letter of Credit Bid and the identity of the
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Issuing Bank that shall have made such Competitive Letter of Credit Bid.
(4) Subject only to the provisions of this paragraph, the
applicable Borrower may accept or reject any Competitive Letter of Credit Bid.
Such Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Letter of Credit Bid
not later than 9:30 a.m., Chicago time, three Business Days before the date of
the proposed issuance of the Competitive Letter of Credit; provided that (i) the
failure of such Borrower to give such notice shall be deemed to be a rejection
of each Competitive Letter of Credit Bid, (ii) such Borrower shall not accept a
Competitive Letter of Credit Bid made at a particular Competitive Letter of
Credit Bid Rate if such Borrower rejects a Competitive Letter of Credit Bid at a
lower Competitive Letter of Credit Bid Rate, and (iii) such Borrower shall
accept only a single Competitive Letter of Credit Bid for each Competitive
Letter of Credit specified in the Competitive Letter of Credit Request. A notice
given by any Borrower pursuant to this paragraph shall be irrevocable.
(5) The Administrative Agent shall promptly notify each
bidding Issuing Bank by telecopy whether or not its Competitive Letter of Credit
Bid has been accepted (and, if so, the Competitive Letter of Credit Bid Rate so
accepted), and the successful bidder will thereupon become bound, subject to the
terms and conditions hereof, to issue the Competitive Letter of Credit in
respect of which its Competitive Letter of Credit Bid has been accepted.
(6) If the Administrative Agent shall elect to submit a
Competitive Letter of Credit Bid in its capacity as an Issuing Bank, it shall
submit such Competitive Letter of Credit Bid directly to the applicable Borrower
at least one quarter of an hour earlier than the time by which the other Issuing
Banks are required to submit their Competitive Letter of Credit Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
(iii) A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the applicable Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
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extension (i) the LC Exposure shall not exceed $50,000,000 and (ii) the sum of
the total Revolving Credit Exposures plus the Competitive L/C Exposure shall not
exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the date that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Committed Letter of
Credit (or an amendment to a Committed Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable Issuing
Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Bank, a participation in such Committed
Letter of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Committed Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of such Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by such Issuing Bank under such Letter of Credit and not
reimbursed by the applicable Borrower on the date due as provided in paragraph
(e) of this Section 2.05, or of any reimbursement payment required to be
refunded to such Borrower for any reason. Each Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Committed Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Committed Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Notwithstanding anything contained in this paragraph, the Issuing
Bank in respect of any Competitive Letter of Credit shall bear the entire credit
exposure associated therewith.
(e) Reimbursement. If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the applicable Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent, in the
case of a Committed Letter of Credit, or to the applicable Issuing Bank, in the
case of a Competitive Letter of Credit, an amount equal to such LC Disbursement
not later than 11:00
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a.m., Chicago time, on the date that such LC Disbursement is made, if such
Borrower shall have received notice of such LC Disbursement prior to 9:00 a.m.,
Chicago time, on such date, or, if such notice has not been received by such
Borrower prior to such time on such date, then not later than 11:00 a.m.,
Chicago time, on (i) the Business Day that such Borrower receives such notice,
if such notice is received prior to 9:00 a.m., Chicago time, on the day of
receipt, or (ii) the Business Day immediately following the day that such
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt; provided that, if such LC Disbursement is not less than
$500,000, such Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be financed
with an ABR Revolving Borrowing in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing. If such Borrower fails to
make such payment when due in respect of any Committed Letter of Credit, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from such Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrower, in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from such Borrower pursuant to this
paragraph in respect of any Committed Letter of Credit, the Administrative Agent
shall distribute such payment to the applicable Issuing Bank or, to the extent
that Lenders have made payments pursuant to this paragraph to reimburse such
Issuing Bank, then to such Lenders and such Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse any
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans as contemplated above) shall not constitute a Loan and shall not relieve
such Borrower of its obligation to reimburse such LC Disbursement.
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(f) Obligations Absolute. Each Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section 2.05
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
any Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a right of setoff against, such
Borrower's obligations hereunder. None of the Administrative Agent, the Lenders
or any Issuing Bank, or any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of such Issuing Bank; provided that the foregoing
shall not be construed to excuse such Issuing Bank from liability to such
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by each Borrower to the
extent permitted by applicable law) suffered by such Borrower that are caused by
such Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of an Issuing Bank (as finally
determined by a court of competent jurisdiction), such Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear
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on their face to be in substantial compliance with the terms of a Letter of
Credit, an Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Each Issuing Bank shall promptly
notify the Administrative Agent and the applicable Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve such Borrower of its
obligation to reimburse such Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any LC
Disbursement, then, unless the applicable Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that such Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; provided that, if such Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.12(d) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e)(i) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Company receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Company and the Borrowers for whose account
Letters of Credit have been issued shall deposit in an
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account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, ratably in accordance with their LC
Exposures, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to any Borrower
described in clause (h) or (i) of Article VII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrowers' risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Banks on a pro rata
basis for LC Disbursements for Letters of Credit for which they have not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the applicable Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject
to the consent of Lenders with LC Exposures representing greater than 50% of the
total LC Exposure), be applied to satisfy other obligations of the Borrowers
under this Agreement. If the Company and the Borrowers are required to provide
an amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Company or such Borrowers within three Business Days after all
Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 11:00 a.m., Chicago time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of such Borrower (or
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of the Company) maintained with the Administrative Agent in Chicago and
designated by such Borrower in the applicable Borrowing Request; provided that
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank and Revolving Loans made to finance the payment of Swing
Line Loans as provided in Section 2.04(f) shall be remitted by the
Administrative Agent to the applicable Swing Line Lender.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the applicable Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the applicable Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of such Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing. If such Borrower pays
such amount to the Administrative Agent, then such payment shall fully discharge
such Borrower's obligations hereunder with respect to the amount of principal or
interest so paid.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the relevant
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this
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Section. A Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, a Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if such Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
relevant Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then such Borrower shall be deemed to have
selected an Interest Period of one month's duration.
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(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely
Interest Election Request with respect to a Eurodollar Revolving Borrowing prior
to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $1,000,000 and
(ii) the Company shall not terminate or reduce the Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section
2.10, the sum of the Revolving Credit Exposures plus the aggregate Competitive
LC Exposure would exceed the total Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Company may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
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Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Borrower on the Maturity Date and (ii) to the
Administrative Agent for the account of each applicable Swing Line Lender the
then unpaid principal amount of each Swing Line Loan of such Lender made to such
Borrower on the date such Swing Line Loan is due pursuant to Section 2.04 or, if
earlier, the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; 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 any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, each Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered
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assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by each such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall have
the right at any time and from time to time to prepay any Borrowing of such
Borrower in whole or in part, subject to prior notice in accordance with
paragraph (b) of this Section.
(b) The relevant Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 10:00 a.m.,
Chicago time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 10:00 a.m.,
Chicago time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.
(c) If after giving effect to any prepayment of Loans either
(i) the sum of the aggregate Revolving Credit Exposures plus the aggregate
Competitive L/C Exposures exceeds the aggregate Commitments or (ii) the
Revolving Credit Exposure of any Lender exceeds the Commitment of such Lender,
the Borrowers shall forthwith prepay Loans (and, if necessary, provide cash
collateral to secure reimbursement
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obligations in respect of Letters of Credit) to the extent necessary to
eliminate such excess.
SECTION 2.11. Fees. (a) The Borrowers agree to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrowers agree to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Committed Letters of Credit, which shall accrue at the
Applicable Rate on the average daily amount of such Lender's Committed LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the date hereof to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any such Committed LC Exposure, and
(ii) to each Issuing Bank a fronting fee, which shall accrue on the undrawn
amount of each Letter of Credit issued by such Issuing Bank during the period
from and including the date hereof to but excluding the later of the date of
termination of the Commitments and the date on which such Issuing Bank ceases to
have any Letters of Credit outstanding, at a rate equal to (x) in the case of
each Committed Letter of Credit, one-eighth of one percent (0.125%) and (y) in
the case of each Competitive Letter of Credit, the Competitive Letter of Credit
Bid Rate bid by such Issuing Bank and accepted by the
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applicable Borrower pursuant to Section 2.05(b)(ii), as well as each Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Committed or Competitive Letter of Credit or the processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the date hereof; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Banks pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrowers agree to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to each Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing, including Swing Line Loans which accrue interest at the Alternate
Base Rate pursuant to Section 2.04(b), shall bear interest at the Alternate Base
Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) The Loans comprising each Alternate Currency Loan shall
bear interest as prescribed in the applicable Alternate Currency Addendum.
(d) The Swing Line Loans denominated in Dollars that accrue
interest at a rate agreed to between the
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applicable Swing Line Lender and the applicable Borrower shall bear interest at
the agreed upon rate.
(e) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
(f) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans
and Swing Line Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Revolving Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(g) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
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SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans
(or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing if the circumstances
giving rise to such notice affect only one Type of Borrowings, then the other
Type of Borrowings shall be permitted.
SECTION 2.14. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing
Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans or Alternate Currency Loans made by such Lender or any
Letter of Credit or participation therein;
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and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Alternate Currency Loan
(or of maintaining its obligation to make any such Loan) or to increase the cost
to such Lender or such Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or participating in any Alternate Currency Loan or to
reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case by an amount deemed by such Lender or Issuing Bank to be material, then the
Company will pay or cause the applicable Borrower to pay to such Lender or such
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or such Issuing Bank's holding company, if any,
by an amount deemed by such Lender or Issuing Bank to be material, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit
issued by such Issuing Bank, to a level below that which such Lender or such
Issuing Bank or such Lender's or such Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
such Issuing Bank's policies and the policies of such Lender's or such Issuing
Bank's holding company with respect to capital adequacy), then from time to time
the Company will pay or cause the applicable Borrower to pay to such Lender or
such Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender's or such Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or such Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section, and explaining in reasonable detail the manner in which such
amount or amounts shall have been determined, shall be delivered to the Company
and shall be conclusive absent manifest error. The Company will pay or will
cause the applicable Borrower to pay such Lender or such Issuing
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Bank, as the case may be, the amount shown as due on any such certificate within
10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or such Issuing Bank's right to demand such
compensation; provided that the Company and the Borrowers shall not be required
to compensate a Lender or any Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that
such Lender or such Issuing Bank, as the case may be, notifies the Company of
the Change in Law giving rise to such increased costs or reductions and of such
Lender's or such Issuing Bank's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section (i) in
respect of any demand for compensation if it shall not be the general practice
of such Lender to demand such compensation in similar circumstances under
comparable provisions of other comparable credit agreements with Borrowers
similarly situated or (ii) in respect of any Competitive Letter of Credit if the
Change in Law that would otherwise entitle it to such compensation shall have
been publicly announced prior to submission of the Competitive Letter of Credit
Bid pursuant to which such Competitive Letter of Credit was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Swing Line Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default) (or, in the case of Swing Line Loans denominated in Dollars
which do not bear interest at the Alternate Base Rate, the agreed upon
maturity), (b) the conversion of any Eurodollar Loan or Swing Line Loan other
than on the last day of the Interest Period applicable thereto (or, in the case
of Swing Line Loans denominated in Dollars which do not bear interest at the
Alternate Base Rate, the agreed upon maturity), (c) the failure to borrow,
convert, continue or prepay any Revolving Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under
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Section 2.10(b) and is revoked in accordance therewith), or (d) the assignment
of any Eurodollar Loan or Swing Line Loan other than on the last day of the
Interest Period applicable thereto (or, in the case of Swing Line Loans
denominated in Dollars which do not bear interest at the Alternate Base Rate,
the agreed upon maturity) as a result of a request by the Company pursuant to
Section 2.18, then, in any such event, the Company shall compensate each Lender
or Issuing Bank for the loss, cost and expense attributable to such event. In
the case of a Eurodollar Loan or Swing Line Loan, such loss, cost or expense to
any Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the Adjusted
LIBO Rate or other rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of Swing Line Loans denominated in Dollars
which do not bear interest at the Alternate Base Rate, the agreed upon maturity)
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender or Issuing Bank
setting forth any amount or amounts that such Lender or Issuing Bank is entitled
to receive pursuant to this Section, and explaining in reasonable detail the
manner in which such amount or amounts shall have been determined, shall be
delivered to the Company and shall be conclusive absent manifest error. The
Company shall pay such Lender or Issuing Bank the amount shown as due on any
such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account
of any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receive an amount equal to the sum they would
have
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received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent,
each Lender and each Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of such
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Company by a Lender or an Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Company as will permit such payments to be
made without withholding or at a reduced rate.
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SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 11:00 a.m., Chicago time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 1 Bank One Plaza,
Chicago, Illinois 60670, except payments to be made directly to the Issuing Bank
or a Swing Line Lender as expressly provided herein and except that payments
pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in Dollars except as otherwise explicitly
provided in this Agreement.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties, and (iii)
third, towards payment of other amounts due hereunder, ratably among the parties
entitled thereto in accordance with the amounts then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in
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respect of any principal of or interest on any of its Revolving Loans or
participations in Swing Line Loans or LC Disbursements in respect of Committed
Letters of Credit resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
Swing Line Loans and LC Disbursements and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in Swing Line Loans and LC Disbursements in
respect of Committed Letters of Credit of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and participations in Swing Line Loans and LC
Disbursements in respect of Committed Letters of Credit; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in Swing Line Loans and LC Disbursements to any assignee or
participant, other than to any Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Banks
hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing
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Banks, as the case may be, the amount due. In such event, if such Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Banks, as
the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(d) or (e), 2.06(b) or 2.17(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to file any certificate or document
requested by a Borrower or designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if such filing, designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.14 or 2.16, as the case may be, in the future and (ii) in the judgment of such
Lender, would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender or contrary to such
Lender's policies. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If any Lender requests compensation under Section 2.14, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
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Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
(other than in respect of outstanding Competitive Letters of Credit issued by
it) to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the
Company shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and participations in Swing Line Loans and LC Disbursements, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the applicable Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling such Borrower to require such assignment
and delegation cease to apply.
SECTION 2.19. Borrowing Subsidiaries. On or after the
Effective Date, the Company may designate any Wholly Owned Subsidiary of the
Company as a Borrowing Subsidiary by delivery to the Administrative Agent of a
Borrowing Subsidiary Agreement executed by such Subsidiary and the Company, and
upon such delivery such Subsidiary shall for all purposes of this Agreement be a
Borrowing Subsidiary and a party to this Agreement until the Company shall have
executed and delivered to the Administrative Agent a Borrowing Subsidiary
Termination with respect to such Subsidiary, whereupon such Subsidiary shall
cease to be a Borrowing Subsidiary and a party to this Agreement.
Notwithstanding the preceding sentence, no Borrowing Subsidiary Termination will
become effective as to any Borrowing Subsidiary at a time when any principal of
or interest on any Loan to such Borrowing Subsidiary, or any Letter of Credit
issued for the account of such Borrowing Subsidiary or reimbursement obligation
related thereto, shall be outstanding. As soon as practicable upon receipt of a
Borrowing Subsidiary Agreement, the Administrative Agent shall send a copy
thereof to each Lender. Each party
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to this Agreement hereby accepts and approves the accession to this Agreement by
any Wholly Owned Subsidiary which has signed a Borrowing Subsidiary Agreement
and the termination thereof by any Wholly Owned Subsidiary which has signed a
Borrower Subsidiary Termination.
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and
its Subsidiaries is duly organized and validly existing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to be so
qualified, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, is qualified to do business in, and is in
good standing in, the jurisdiction of its organization and every other
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within the Company's (and, as applicable, each Subsidiary's), corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement and each Guarantor Agreement has
been duly executed and delivered by the Company and each Subsidiary party hereto
and thereto and constitutes a legal, valid and binding obligation of the Company
and each such Subsidiary, and each Borrowing Subsidiary Agreement (as to which a
Borrowing Subsidiary Termination has not become effective) has been duly
executed and delivered by the Company and the applicable Borrowing Subsidiary
and constitutes a legal, valid and binding obligation of such Borrowing
Subsidiary, in each case enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
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SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority with
jurisdiction over the Company or any Subsidiary, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Company or any of its Subsidiaries or any order of any
Governmental Authority with jurisdiction over the Company, (c) will not violate
or result in a default under any indenture or any material agreement or other
instrument binding upon the Company or any of its Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by the Company
or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any Lien (other than Permitted Liens) on any asset of the Company
or any of its Subsidiaries, except, in the case of clauses (a) through (d)
above, for any of the foregoing that could not reasonably be expected to result
in a Material Adverse Effect or materially and adversely to affect the rights or
interests of the Lenders.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Lenders its consolidated balance
sheets and statements of income, stockholders equity and cash flows as of and
for the fiscal years ended December 31, 1998, and December 31, 1997, reported on
by Arthur Andersen, independent public accountants. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Company and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP.
(b) Since December 31, 1998, there has been no material
adverse change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Company and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to the business of the Company and its
Subsidiaries, taken as a whole, except for Permitted Encumbrances and minor
defects in title that do not interfere with its ability to conduct its business
as
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currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to the business of the Company and its
Subsidiaries, taken as a whole, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) that could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than as disclosed in Schedule 3.06 or matters
disclosed in the Company's SEC Forms 10K or 10Q) or (ii) that involve this
Agreement, any Borrowing Subsidiary Agreement or the Transactions.
(b) Except as disclosed in Schedule 3.06, and except with
respect to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company nor any of its Subsidiaries (i) has failed in the last five years to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) is
currently subject to any Environmental Liability, (iii) has received written
notice of any pending or threatened claim with respect to any Environmental
Liability or (iv) has received notice of any future claim with respect to any
Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the matters disclosed in Schedules 3.06 and 3.07 that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Except as
disclosed in Schedule 3.07 and matters disclosed in the Company's SEC Forms 10K
and 10Q,
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each of the Company and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures and material agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Company nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and each of its
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $100,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $1,000,000 the
fair market value of the assets of all such underfunded Plans.
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SECTION 3.11. Disclosure. Except as heretofore disclosed to
the Lenders, the Company is not aware of any circumstance or event that exists
or has occurred that it believes is materially likely to result in a Material
Adverse Effect. None of the reports, financial statements, certificates or other
information furnished by or on behalf of any Borrower to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or any
Borrowing Subsidiary Agreement or delivered hereunder or thereunder (as modified
or supplemented by other information so furnished), taken as a whole, contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information, the Company represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time such projections were prepared.
SECTION 3.12. Subsidiaries; Guarantors. Schedule 3.12 sets
forth as of the date hereof a list of all Subsidiaries of the Company and the
percentage ownership interest of the Company therein. The Subsidiaries that have
executed and delivered Guarantor Agreements constitute all the Subsidiaries
(other than the Designated Subsidiaries) that are required to become Guarantors
under Section 5.09.
SECTION 3.13. Use of Proceeds. The Borrowers will use the
proceeds of the Loans and will request Letters of Credit only for the purposes
specified in Section 5.08.
SECTION 3.14. Solvency. As of the Effective Date, (a) the fair
value of the assets of the Company and the Subsidiaries, taken as a whole, will
exceed their debts and liabilities, subordinated, contingent or otherwise; (b)
the present fair saleable value of the property of the Company and the
Subsidiaries, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Company and the Subsidiaries will be able
to pay their debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (d) the Company and
the Subsidiaries, taken as a whole, will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses
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are now conducted and are proposed to be conducted following the Effective Date.
SECTION 3.15. Federal Reserve Regulations. (a) Neither the
Company nor any of the 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.
(b) No part of the proceeds of any Loan or any Letter of
Credit will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend
credit to others for the purpose of purchasing or carrying Margin Stock or to
refund Indebtedness originally incurred for such purpose, or (ii) for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board, including Regulation U or X.
SECTION 3.16. Year 2000 Issues. Each of the Company and its
Subsidiaries has made an assessment of the Year 2000 Issues and has a program
for remediating the Year 2000 Issues on a timely basis. Based on this assessment
and program, the Company does not reasonably anticipate any Material Adverse
Effect as a result of Year 2000 Issues.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Banks to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement. The Administrative
Agent shall have received from each Guarantor to the extent required
under Section 5.09 either (i) a counterpart of an
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executed Guarantor Agreement signed on behalf of such Guarantor or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of the
Guarantor Agreement) that such Guarantor has signed a counterpart of a
Guarantor Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Robert H. Wolfe, U.S. General Counsel
for the Company and its Subsidiaries, and DeBrauw Blackstone Westbroek,
Dutch counsel for the Company and its Subsidiaries, substantially in
the forms of Exhibits B and C, respectively, and covering such other
matters relating to the Company and its Subsidiaries, this Agreement or
the Transactions as the Administrative Agent shall reasonably request.
The Company and its Subsidiaries hereby request such counsel to deliver
such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Company and its Subsidiaries, the authorization of the
Transactions and any other legal matters relating to the Company and
its Subsidiaries, this Agreement or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Company, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date
including the fees agreed to in the Fee Letter dated August 9, 1999
between the Company and the Administrative Agent and, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder.
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(f) The Administrative Agent shall have received evidence
satisfactory to it of termination of the commitments and repayment of
all indebtedness under the Company's Credit Agreement dated March 6,
1997.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
10.02) at or prior to 2:00 p.m., Chicago time, on __________, 1999 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of each Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Company set
forth in this Agreement and, in the case of a Borrowing by a Borrowing
Subsidiary, the representations and warranties of such Borrowing
Subsidiary in its Borrowing Subsidiary Agreement and, if applicable,
Alternate Currency Addendum, shall be true and correct in all material
respects on and as of the date of such Borrowing (other than the
continuation or conversion of any Loan) or the date of issuance of such
Letter of Credit, as applicable (it being understood and agreed that
any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company and, if applicable, the relevant Borrowing Subsidiary on the date
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thereof as to the matters specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. Initial Borrowing by Each Borrowing Subsidiary.
The obligation of each Lender to make the initial Loan to, and the obligation of
any Issuing Bank to issue the initial Letter of Credit for the account of, any
Borrowing Subsidiary is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary and the
Company;
(b) receipt by the Administrative Agent of all documents it
may reasonably request relating to the existence of such Borrowing
Subsidiary, the corporate power and authority of such Borrowing
Subsidiary to enter into and the validity with respect to such
Borrowing Subsidiary of this Agreement and any other matters relevant
hereto, all in form and substance satisfactory to the Administrative
Agent; and
(c) with respect to any Foreign Subsidiary, receipt by the
Administrative Agent of any governmental and third party approvals
necessary in connection with the execution, delivery and performance by
such Borrowing Subsidiary of this Agreement.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Company covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related statements
of operations,
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stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Arthur Andersen or other
independent public accountants of recognized national standing (without
a "going concern" or like qualification or exception and without any
material qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Company and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Company (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto; (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.08, 6.09, 6.10 and 6.11; (iii) stating whether, to such officer's
knowledge, any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to
in Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate; and (iv) in the case of a delivery of financial statements
under clause (a) above, attaching
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a revised Schedule 1.01 identifying the Material Subsidiaries as of the
date of the balance sheet included in such financial statements;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Company or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange, or distributed by the Company to its shareholders generally,
as the case may be; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrowers or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. Promptly upon
obtaining knowledge thereof, the Company will furnish to the Administrative
Agent and each Lender written notice of the following:
(a) the occurrence of any Default that is continuing;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in
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liability of the Company and its Subsidiaries in an aggregate amount
exceeding $1,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of its Material Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of the business of the Company and its Subsidiaries,
taken as a whole; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.04 or the
liquidation, dissolution or disposition (including by means of a merger or
consolidation) of any Subsidiary that in the good faith judgment of the Board of
Directors of the Company is no longer necessary or useful to the conduct of the
business of the Company and the Subsidiaries.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of its Material Subsidiaries to, (a) keep and
maintain all property material to the conduct of the business of the Company and
its Subsidiaries, taken as a whole, in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance
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companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations and of the same or similar overall size.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of its Material Subsidiaries to, keep proper
books of record and account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and activities. The
Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property (including
ERISA), except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The
proceeds of the Loans will be used for general corporate purposes. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X. The Letters of Credit will be used for general
corporate purposes.
SECTION 5.09. Further Assurances. (a) The Company will cause
each Subsidiary that on the date of the initial Borrowing or issuance of a
Letter of Credit is a Material Subsidiary (other than any Excluded Foreign
Subsidiary) to execute and deliver to the Administrative Agent, prior to such
Borrowing or issuance, a Guarantor Agreement under which it shall become and
assume the obligations of a Guarantor hereunder. Promptly upon (i) the
acquisition or formation of any Material Subsidiary (other than an Excluded
Foreign Subsidiary), or (ii) any transfer of assets by the Company or one or
more Subsidiaries to any existing Subsidiary (other than an Excluded Foreign
Subsidiary) that results in such Subsidiary becoming a
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Material Subsidiary, and not later than the next date on which financial
statements are delivered pursuant to Section 5.01(a) after (x) any existing
Subsidiary (other than an Excluded Foreign Subsidiary) becomes a Material
Subsidiary other than as provided in clause (ii) above or (y) any Material
Subsidiary that has been an Excluded Foreign Subsidiary ceases to be an Excluded
Foreign Subsidiary, the Company will cause such Subsidiary to execute and
deliver to the Administrative Agent a Guarantor Agreement under which such
Subsidiary shall become and assume the obligations of a Guarantor hereunder.
(b) In the event any Subsidiary otherwise required to become a
Guarantor under paragraph (a) 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.
(c) Notwithstanding any other provision of this Agreement, for
purposes of paragraphs (a) and (b) above, until the 30th day following the date
of this Agreement, no Subsidiary shall be required to become a Guarantor
hereunder that would not have been so required in the absence of the proviso to
the definition of "Material Subsidiary" in Article I hereto (each such
Subsidiary being called a "Designated Subsidiary"), and the failure of any
Designated Subsidiary to be a Guarantor during such 30 day period shall not
result in a Default or Event of Default under any provision contained herein.
The Company agrees, by the 30th day following the date of this Agreement, to
cause each Designated Subsidiary to execute and deliver a Guarantor Agreement
and to become a Guarantor hereunder.
SECTION 5.10. Year 2000 Issues. The Company shall, and shall
cause each of its Material Subsidiaries to, take all actions reasonably
necessary to address the Year 2000 Issues so that any such Year 2000 Issues will
not have a Material Adverse Effect. The Company shall provide the Administrative
Agent and each of the Lenders information regarding the Company's and its
Subsidiaries' program to address Year 2000 Issues. The Company shall advise the
Administrative Agent if any Year 2000 Issues will have or would reasonably be
expected to have a Material Adverse Effect.
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ARTICLE VI
Negative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness. The Company will not permit any
Subsidiary to create, incur or assume, and will not permit to exist, any
Indebtedness of any Subsidiary, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 ("Existing Indebtedness");
(c) Unsecured Indebtedness of any Subsidiary to the Company or
any other Subsidiary (including any Indebtedness of or to Lealand
Finance Company, B.V., to or from any other Subsidiary but excluding
any other Indebtedness of a Subsidiary Guarantor to a Subsidiary that
is not a Guarantor);
(d) Performance bonds and letters of credit 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;
(e) Letters of credit in an aggregate face amount at any time
not to exceed $28,000,000, issued in the ordinary course of business to
secure obligations of the Company and the Subsidiaries under workers'
compensation and other social security programs, and Guarantees of any
such permitted letters of credit; and
(f) other Indebtedness in an aggregate principal amount for
all Subsidiaries not exceeding $20,000,000 at any time outstanding.
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For the avoidance of doubt, the parties agree that nothing in this Agreement
shall restrict the ability of the Company or any of its Subsidiaries (i) to
obtain, enter into or guarantee performance bonds and letters of credit 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 or (ii) to guarantee
the obligations of the Company or any Subsidiary under any Hedging Agreement not
prohibited by this Agreement.
SECTION 6.02. Liens. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or
asset of the Company or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary, as the
case may be and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof; and
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(d) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such
security interests secure only Indebtedness permitted under the terms
of this Agreement, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement,
(iii) the Indebtedness secured thereby does not exceed 80% of the cost
of acquiring, constructing or improving such fixed or capital assets
and (iv) such security interests shall not apply to any other property
or assets of the Company or any Subsidiary.
SECTION 6.03. Fundamental Changes. (a) The Company will not,
and will not permit any of its Subsidiaries to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) any assets (other than sales, assignments or other
dispositions of assets for not less than fair market value (as determined in
good faith by the Company's chief financial officer) and which, when combined
with all such other transactions (each such transaction being valued at book
value) during any one fiscal year, represents the disposition of not greater
than 10% of the Company's Total Assets or 10% of the Company's Consolidated
Adjusted Net Worth at the end of the fiscal year immediately preceding that in
which such transaction is proposed to be entered into, provided further that all
such transactions entered into during the period from the Effective Date to the
date of the applicable transaction represent the disposition of assets for not
more than $30,000,000), or any capital stock of any of its Subsidiaries, in each
case whether now owned or hereafter acquired, or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing (i) any Person may merge into the
Company in a transaction in which the Company is the surviving corporation, (ii)
any Person may merge into any Wholly Owned Subsidiary in a transaction in which
the surviving entity is a Wholly Owned Subsidiary, (iii) any Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to the Company or to a
Wholly Owned Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the
Company determines in good faith that such liquidation or dissolution is in the
best interests of the Company and (v) the Company and each
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Subsidiary may sell inventory and sell or dispose of used or surplus equipment
in the ordinary course of business; provided that any such merger involving a
Person that is not a Wholly Owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 6.04.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the date
of execution of this Agreement and businesses reasonably related or incidental
thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Company will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a Wholly Owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Company existing on the date hereof in
the capital stock of its Subsidiaries;
(c) loans or advances made by the Company to any Subsidiary
and made by any Subsidiary to the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section
6.01;
(e) Permitted Acquisitions; and
(f) Purchases of capital stock of the Company and the
Subsidiaries.
SECTION 6.05. Hedging Agreements. The Company will not, and
will not permit any of its Subsidiaries to, enter into any Hedging Agreement,
other than Hedging
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Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Company or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 6.06. Transactions with Affiliates. The Company will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) at prices and on terms and conditions not less
favorable to the Company or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) transactions between or
among the Company and its Subsidiaries not involving any other Affiliate, (c)
customary fees paid to members of the Supervisory or Management Board of the
Company or the Board of Directors of any Subsidiary and (d) customary
compensation including salaries and bonuses paid to officers and employees of
the Company and its Subsidiaries.
SECTION 6.07. Restrictive Agreements. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Company or any other
Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof and identified on
Schedule 6.09 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition),
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder, (iv) the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) the
foregoing
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shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof.
SECTION 6.08. Capital Expenditures. The Company will not
permit Consolidated Capital Expenditures to exceed $20,000,000 during any fiscal
year; provided, that the amount of Consolidated Capital Expenditures permitted
in any fiscal year shall be increased by the lesser of (i) any amount by which
permitted Consolidated Capital Expenditures during the immediately preceding
fiscal year exceeded actual Consolidated Capital Expenditures during such
preceding fiscal year and (ii) $5,000,000.
SECTION 6.09. Consolidated Interest Coverage Ratio. The ratio
for any period of four consecutive fiscal quarters of the sum of (a)
Consolidated EBIT plus (b) Rentals during such period to the sum of (x)
Consolidated Interest Expense plus (y) Rentals during such period shall not be
less than 2.00 to 1.00.
SECTION 6.10. Consolidated Leverage Ratio. The Company will
not permit the Consolidated Leverage Ratio as of the end of and for any period
of four consecutive fiscal quarters ending to be greater than 2.50 to 1.00.
SECTION 6.11. Consolidated Adjusted Net Worth. The Company
will not permit Consolidated Adjusted Net Worth at any time (a) prior to January
1, 2000 to be less than $80,000,000, (b) on or after January 1, 2000 and prior
to January 1, 2001 to be less than $80,000,000 minus an amount equal to the
reduction in Consolidated Adjusted Net Worth attributable to the purchase by the
Company of capital stock of the Company subsequent to January 1, 2000 (provided,
however, that the amount of the reduction of the amount of Consolidated Adjusted
Net Worth required by this Section 6.11 shall not exceed $10,000,000 even if the
Company purchases capital stock of the Company in an amount that reduces the
Consolidated Adjusted Net Worth of the Company by an amount greater than
$10,000,000) plus the amount of any recovery realized prior to January 1, 2001
on the Tuban Receivables (provided, however, that the amount of such increase
shall not exceed $25,000,000) and (c) at any time on or after January 1, 2001 to
be less than $80,000,000 minus an amount equal to the reduction in Consolidated
Adjusted Net Worth attributable to the purchase by the Company of capital stock
of the Company subsequent to January 1, 2000 (provided, however, that the amount
of the reduction of the amount of Consolidated Adjusted Net Worth
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required by this Section 6.11 shall not exceed $10,000,000 even if the Company
purchases capital stock of the Company in an amount that reduces the
Consolidated Adjusted Net Worth of the Company by an amount greater than
$10,000,000) plus 50% of Consolidated Net Income for each fiscal quarter during
which Consolidated Net Income is positive, commencing with the fiscal quarter
ending March 31, 2001 plus the amount of any recovery realized on the Tuban
Receivables (provided, however, that the amount of such increase shall not
exceed $25,000,000).
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) any Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or
any fee or other amount (other than an amount referred to in clause (a)
of this Article) payable by such Borrower under this Agreement, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any Subsidiary in or in connection with
this Agreement, any Borrowing Subsidiary Agreement or any amendment or
modification hereof or thereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with this Agreement, any Borrowing Subsidiary Agreement or
any amendment or modification hereof or thereof, shall prove to have
been incorrect in any material respect when made or deemed made;
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(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to
the Company's existence) or 5.08 or in Article VI;
(e) the Company shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any Borrowing
Subsidiary Agreement (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent to
the Company (which notice will be given at the request of any Lender);
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable (after giving effect to any grace period);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (after giving effect to any grace period) the holder
or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall
not apply to secured Indebtedness that becomes due solely as a result
of the voluntary sale or transfer of the property or assets securing
such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Borrower or any Subsidiary (other than a Foreign Subsidiary that is not
a Material Subsidiary) or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any such Subsidiary
or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an
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order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Company or any Borrower or any Subsidiary (other than
a Foreign Subsidiary that is not a Material Subsidiary) shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or such Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Company or any Subsidiary (other than a Foreign
Subsidiary that is not a Material Subsidiary) shall fail generally to
pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the
Company, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of the Company or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Company and its Subsidiaries in an aggregate amount exceeding
(i) $1,000,000 in any year or (ii) $5,000,000 for all periods;
(m) a Change in Control shall occur; or
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(n) the guarantee by any Guarantor of the Obligations shall
not be (or shall be claimed by such Guarantor not to be) valid and in
full force and effect;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Company, take either or both of
the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Borrower; and in case of any
event with respect to the Company described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower; and in the case of any
event with respect to any Borrowing Subsidiary described in clause (h) or (i) of
this Article, (i) the eligibility of such Borrowing Subsidiary to borrow shall
thereupon terminate and (ii) the Loans of such Borrowing Subsidiary shall become
immediately due and payable, together with accrued interest thereon and all fees
and other obligations of such Borrowing Subsidiary accrued hereunder, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrowing Subsidiary.
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ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 10.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Company or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent
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by a Borrower or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any Borrowing
Subsidiary Agreement, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any Borrowing
Subsidiary Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time
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by notifying the Lenders, the Issuing Banks and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall 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. The fees
payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
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In order to induce the Lenders to extend credit hereunder,
each Guarantor hereby irrevocably and unconditionally guarantees, severally and
jointly with the other Guarantors, as primary obligor and not merely as a
surety, the Obligations (to the extent such Obligations are not obligations of
such Guarantor in its capacity as a Borrower). Each Guarantor further agrees
that the due and punctual payment of the Obligations may be extended or renewed,
in whole or in part, without notice to or further assent from it, and that it
will remain bound upon its Guarantee hereunder notwithstanding any such
extension or renewal of any Obligation.
Each Guarantor waives presentment to, demand of payment from
and protest to any Borrower of any of the Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of a Guarantor hereunder shall not be affected by (a) the failure of
any Lender or the Administrative Agent to assert any claim or demand or to
enforce any right or remedy against any Borrower or any other Guarantor under
the provisions of this Agreement or otherwise; (b) change or increase in the
amount of any of the Obligations, whether or not consented to by such Guarantor,
or (c) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Agreement, any Borrowing Subsidiary Agreement or any other
agreement.
Each Guarantor further agrees that its agreement hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
any Borrower or any other person.
The obligations of the Guarantors hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantors hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative
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Agent or any Lender to assert any claim or demand or to enforce any remedy under
this Agreement or any other agreement, by any waiver or modification in respect
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or omission which may or
might in any manner or to any extent vary the risk of the Guarantors or
otherwise operate as a discharge of the Guarantors or any other Borrower as a
matter of law or equity.
Each Guarantor further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by the Administrative Agent or any Lender upon the
bankruptcy or reorganization of any Borrower or other Guarantor or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which the Administrative Agent or any Lender may have at law or in
equity against any Guarantor by virtue hereof, upon the failure of any Borrower
to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligation. Each Guarantor further agrees that if payment in respect
of any Obligation shall be due in a currency other than Dollars and/or at a
place of payment other than Chicago and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil disturbance or
similar event, payment of such Obligation in such currency or at such place of
payment shall be impossible or, in the judgment of any applicable Lender, not
consistent with the protection of its rights or interests, then, at the election
of any applicable Lender, such Guarantor shall make payment of such Obligation
in Dollars (based upon the currency exchange rate in effect for the applicable
currency on the date on which such Lender receives payment in immediately
available funds) and/or in Chicago, and shall indemnify such Lender against any
losses or expenses that it shall sustain as a result of such alternative
payment.
Upon payment by a Guarantor of any Obligation, each Lender
shall, in a reasonable manner, assign the amount of such Obligation owed to it
and so paid to the Guarantor,
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such assignment to be pro tanto to the extent to which the Obligation in
question was discharged by the Guarantor, or make such disposition thereof as
the Guarantor shall direct (all without recourse to any Lender and without any
representation or warranty by any Lender).
Upon payment by a Guarantor of any sums as provided above, all
rights of such Guarantor against any Borrower arising as a result thereof by way
of right of subrogation or otherwise shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full of all the
Obligations owed by such Borrower, whether in its capacity as a Borrower or as a
Guarantor, to the Lenders.
In the event that all the capital stock directly or indirectly
owned by the Company of any Guarantor shall be sold or otherwise transferred in
a transaction permitted hereunder with the result that such Guarantor shall no
longer be a Subsidiary, such Guarantor shall without further action on the part
of the Administrative Agent or the Lenders cease to be a party hereto and a
Guarantor hereunder, and the Administrative Agent is authorized to execute and
deliver all such instruments as shall be reasonably requested by the Company to
evidence the release of such Guarantor.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of the Chicago Bridge &
Iron Company at 1501 North Division Street, Plainfield, Illinois 60544,
Attention of the Treasurer, with a copy to the General Counsel
(Telecopy No. (815) 439-6600);
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(b) if to the Administrative Agent, to Bank One, NA, 1 Bank
One Plaza, Chicago, Illinois 60670 (Telecopy No. (312)________).
(c) if to any other Lender or to an Issuing Bank, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, the Issuing Banks or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Banks may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any Borrowing Subsidiary
Agreement nor any provision hereof or thereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Company and the Required Lenders or by the Company and the Administrative Agent
with the consent of the Required Lenders (and, in the case of a Borrowing
Subsidiary Agreement, the applicable Borrowing Subsidiary); provided that no
such agreement shall (i) increase the Commitment of
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any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.17(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, or (v) change any of the provisions
of this Section or the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder, make any determination or grant any consent
hereunder without the prior consent of each Lender or (vi) release the Company
or Guarantors representing a substantial part of the consolidated assets of the
Company from their obligations under Article IX, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or any Swing
Line Lender or any Issuing Bank hereunder without the prior written consent of
the Administrative Agent or such Swing Line Lender or such Issuing Bank, as the
case may be.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement, including the Alternate Currency Addenda,
or any Borrowing Subsidiary Agreement or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Bank or any
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Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement or any Borrowing Subsidiary Agreement, including
its rights under this Section, or in connection with the Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit, except to the extent such expenses are incurred as a result
of the gross negligence or willful misconduct of the Administrative Agent,
Lender or Issuing Bank.
(b) The Company shall indemnify the Administrative Agent, each
Swing Line Lender, each Issuing Bank and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement or any Borrowing
Subsidiary Agreement or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto or thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or
the use of the proceeds therefrom (including any refusal by any Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of
such Indemnitee or any representative thereof.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to the Administrative
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Agent or any Swing Line Lender or any Issuing Bank under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent or
such Swing Line Lender or such Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or such Swing Line Lender or such Issuing Bank
in its capacity as such.
(d) To the extent permitted by applicable law, no Borrower
shall assert, and each Borrower hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any Borrowing Subsidiary Agreement or
any agreement or instrument contemplated hereby or thereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto (including any Borrowing Subsidiaries) and their respective successors
and assigns permitted hereby (including any Affiliate of any Issuing Bank that
issues any Letter of Credit), except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder or under any Borrowing
Subsidiary Agreement without the prior written consent of each Lender (and any
attempted assignment or transfer by any Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
any Issuing Banks and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
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(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Federal Reserve Bank, a Lender or
an Affiliate of a Lender, each of the Company and the Administrative Agent must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Company and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Letters of Credit, (iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Company otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
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Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in Chicago a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent,
the Swing Line Lenders, the Issuing Banks and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Company, the
Swing Line Lenders, the Issuing Banks and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower, the
Administrative Agent, the Swing Line Lenders or the Issuing Banks sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Swing Line Lenders, the Issuing Banks and the other
Lenders shall continue to deal solely and directly with such Lender in
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connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.17(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the Borrowing
Subsidiary Agreements and the certificates or other instruments delivered in
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98
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Banks or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
including the Alternate Currency Addenda, and any separate letter agreements
with respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto (excluding any Borrowing Subsidiaries), and thereafter shall be binding
upon and inure to the benefit of the parties hereto (including any Borrowing
Subsidiaries) and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
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SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of any Borrower or Guarantor against any of and all the obligations of such
Borrower or Guarantor now or hereafter existing under this Agreement held by
such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of Illinois.
(b) Each Borrower and Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the state and federal courts in Cook County, Illinois, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in Illinois. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the Administrative
Agent, any Swing Line Lender, any Issuing Bank or any Lender may otherwise have
to bring
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any action or proceeding relating to this Agreement against any Borrower or
Guarantor or its properties in the courts of any jurisdiction.
(c) Each Borrower and Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement (including any Borrowing
Subsidiaries) irrevocably consents to service of process in the manner provided
for notices in Section 10.01, and the Company and each Borrower or Guarantor
located or organized outside of the State of Illinois hereby irrevocably
appoints Chicago Bridge & Iron Company at the address provided in Section 10.01,
as its agent for service of process out of any of the courts referred to in
paragraph (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.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
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SECTION 10.12. Confidentiality. Each of the Administrative
Agent, the Swing Line Lenders, the Issuing Banks and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Company or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent,
any Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Company. For the purposes of this Section, "Information" means all
information received from the Company relating to the Company or its business,
other than any such information that is available to the Administrative Agent,
any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
the Company; provided that, in the case of information received from the Company
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the
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102
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender
in respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto
(including any Borrowing Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement
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Currency, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Borrowers contained in this Section 10.14 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CHICAGO BRIDGE & IRON COMPANY N.V.
By: CHICAGO BRIDGE & IRON COMPANY
B.V.
Its: Managing Director
By: /s/ Gerald M. Glenn
------------------------------
Name: Gerald M. Glenn
----------------------------
Title: Managing Director
----------------------------
BANK ONE, NA, individually and as
Administrative Agent,
By: /s/ Deborah Stevens
------------------------------
Name: Deborah Stevens
Title: Senior Vice President
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104
BANK OF MONTREAL, as a Lender
By: /s/ L. A. Durning
------------------------------
Name: L. A. Durning
Title: Portfolio Manager
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105
BANK OF AMERICA, N.A., as a Lender
By: /s/ Charles F. Lilygren
------------------------------
Name: Charles F. Lilygren
Title: Managing Director
111
106
THE CHASE MANHATTAN BANK, as a Lender
By: /s/ Cornelius J. Droogan
------------------------------
Name: Cornelius J. Droogan
Title: Vice President
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107
ABN AMRO BANK N.V., as a Lender
By: /s/ Thomas F. Comfort
------------------------------
Name: Thomas F. Comfort
Title: Group Vice President
By: /s/ Denise L. Maple
------------------------------
Name: Denise L. Maple
Title: Vice President
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108
SCHEDULE 1.01
MATERIAL SUBSIDIARIES
- --------------------------------------------------------------------------------
COMPANY NAME INCORPORATED EQUITY
- ------------ ------------ ------
- --------------------------------------------------------------------------------
Chicago Bridge & Iron Company N.V. Netherlands 100.0%
- --------------------------------------------------------------------------------
Chicago Bridge & Iron Company B.V. Netherlands 100.0%
- --------------------------------------------------------------------------------
Chicago Bridge & Iron Company (Delaware) Delaware 100.0%
- --------------------------------------------------------------------------------
CB&I Constructors, Inc. Texas 100.0%
- --------------------------------------------------------------------------------
CBI Services, Inc. Delaware 100.0%
- --------------------------------------------------------------------------------
Horton CBI, Limited Canada 99.9%
- --------------------------------------------------------------------------------
CBI Venezolano, S.A. Venezuela 85.0%
- --------------------------------------------------------------------------------
CBI Eastern Anstalt Liechtenstein 100.0%
- --------------------------------------------------------------------------------
CBI Constructors S.A. (Proprietary) Limited South Africa 100.0%
- --------------------------------------------------------------------------------
CBI Constructors Pty. Ltd. Australia 100.0%
- --------------------------------------------------------------------------------
Arabian CBI Saudi Arabia 75.0%
- --------------------------------------------------------------------------------
Material Supply Companies 100.0%
- --------------------------------------------------------------------------------
FOREIGN SUBSIDIARIES THAT ARE NOT EXCLUDED FOREIGN SUBSIDIARIES:
- --------------------------------------------------------------------------------
COMPANY NAME INCORPORATED EQUITY
- ------------ ------------ ------
- --------------------------------------------------------------------------------
Chicago Bridge & Iron Company N.V. Netherlands 100.0%
- --------------------------------------------------------------------------------
Chicago Bridge & Iron Company B.V. Netherlands 100.0%
- --------------------------------------------------------------------------------
Lealand Finance Company B.V Netherlands
- --------------------------------------------------------------------------------
CBI (Europe) B.V. Netherlands
- --------------------------------------------------------------------------------
Horton CBI, Limited Canada 99.9%
- --------------------------------------------------------------------------------
CBI Venezolano, S.A. Venezuela 85.0%
- --------------------------------------------------------------------------------
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109
- --------------------------------------------------------------------------------
COMPANY NAME INCORPORATED EQUITY
- ------------ ------------ ------
- --------------------------------------------------------------------------------
CBI Eastern Anstalt Liechtenstein 100.0%
- --------------------------------------------------------------------------------
CBI Constructors S.A. (Proprietary) Limited South Africa 100.0%
- --------------------------------------------------------------------------------
CBI Constructors Pty. Ltd. Australia 100.0%
- --------------------------------------------------------------------------------
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110
SCHEDULE 2.01
- ---------------------------------------------------------------------------------------------
Name of Lender Commitment with Dollar Amount of Currency of Swing Line
respect to Revolving Swing Line Commitment
Loans and Committed Commitment
Letters of Credit
- ---------------------------------------------------------------------------------------------
Bank One, NA $25,000,000 $10,000,000 U.S. Dollars
and
$8,000,000 Australian Dollars
- ---------------------------------------------------------------------------------------------
Bank of Montreal $25,000,000 $8,000,000 Canadian Dollars
- ---------------------------------------------------------------------------------------------
The Chase Manhattan Bank $20,000,000
- ---------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. $15,000,000
- ---------------------------------------------------------------------------------------------
Bank of America, N.A. $15,000,000
- ---------------------------------------------------------------------------------------------
Aggregate Commitments $100,000,000
- ---------------------------------------------------------------------------------------------
116
Schedule 6.01
Chicago Bridge & Iron Company N.V.
Existing Indebtedness
Company Lender US$ Equiv.
- --------------------------- ---------------------- Outstanding
Chicago Bridge & Iron Company
CBI Constructors Pty. Ltd.
CBI Overseas
Total Subsidiary Indebtedness
Subsidiaries acting as Guarantors of
the obligations of the Company and
its Subsidiaries, and the Company
acting as Guarantor of the obligations
of its Subsidiaries under the
Separation Agreement and the other
agreements listed on Schedule I to
Separation Agreement
117
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of September
__, 1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Chicago Bridge & Iron Company N.V., the Borrowing
Subsidiaries party thereto, the Lenders party thereto and Bank One, NA as
Administrative Agent. Capitalized terms used but not defined herein shall have
the meanings specified in the Credit Agreement.
1. The Assignor named below hereby sells and assigns, without
recourse to the Assignor, to the Assignee named below, and the Assignee hereby
purchases and assumes, without recourse to the Assignor, from the Assignor,
effective as of the Assignment Date set forth below, the interests set forth
below (collectively, the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth below in the Commitment of the Assignor on the Assignment
Date, and Revolving Loans and Swing Line Loans, owing to the Assignor which are
outstanding on the Assignment Date, together with the participations in Swing
Line Loans, Letters of Credit and LC Disbursements held by the Assignor on the
Assignment Date, but excluding accrued interest and fees to and excluding the
Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.16(e) of the Credit Agreement, and (ii) if the Assignee is not already a
Lender under the Credit Agreement, an Administrative Questionnaire in the form
provided by the Administrative Agent. The [Assignor/Assignee] shall pay the fee
payable to the Administrative Agent pursuant to Section 10.04(b) of the Credit
Agreement.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of Illinois.
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113
Date of Assignment:
---------------------------------------
Legal Name of Assignor:
------------------------------------
Legal Name of Assignee:
------------------------------------
Assignee's Address for Notices:
-------------------------------------
Effective Date of Assignment ("Assignment Date"):
-------
Percentage Assigned of
Commitment (set forth,
Principal Amount Assigned to at least 8 decimals, as a
Facility (and identifying information percentage of the aggregate
- -------- as to individual Competitive Commitments of
Loans, if any) all Lenders thereunder)
-------------- -----------------------
Commitment Assigned: $ %
Revolving Loans: $ %
Swing Line Loans: $
Committed Letters of Credit:
$ %
Competitive Letters of Credit:
$
The terms set forth herein
are hereby agreed to:
Accepted (if required):
____________________, as Assignor, CHICAGO BRIDGE & IRON
COMPANY N.V.
BY: CHICAGO BRIDGE & IRON B.V.
ITS: MANAGING DIRECTOR
By:
---------------------------
Name:
--------------------------
Title:
-------------------------
____________________, as Assignee, BANK ONE, NA, as
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114
Administrative Agent,
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
120
EXHIBIT B
1. Each Domestic Subsidiary that is a Borrower on the date
hereof or a Guarantor on the date hereof (a) is a corporation duly organized and
validly existing under the laws of the jurisdiction of its organization, (b) has
all requisite corporate power and authority to own its property and assets and
to carry on its business as now conducted and as proposed to be conducted and
(c) is duly qualified as a foreign corporation to transact business and is in
good standing in its jurisdiction of incorporation and each jurisdiction where
such qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Credit Agreement and any notes delivered by it pursuant to
Section 2.09(e) (the "Loan Documents") including, in the case of each Domestic
Borrowing Subsidiary, to borrow in accordance with the Credit Agreement.
2. The execution, delivery and performance of each of the Loan
Documents by each Domestic Subsidiary that is a Borrower on the date hereof or a
Guarantor on the date hereof and the borrowings thereunder to be made on the
date hereof by each Domestic Borrowing Subsidiary (a) have been duly authorized
by all requisite corporate action of such Domestic Subsidiary and (b) will not
(i) violate (A) any provision of the certificate of incorporation or by-laws of
such Domestic Subsidiary, (B) any applicable federal, Illinois or Delaware law,
statute, rule or regulation or any order of any Government Authority with
jurisdiction over such Domestic Subsidiary or its properties or (C) any
provision of any indenture or other material agreement or instrument known to us
to which such Domestic Subsidiary is a party or by which it or any of its
property may be bound, (ii) result in a default under any such indenture,
agreement or other instrument or (iii) result in the creation or imposition of
any Lien (other than Permitted Liens) upon or with respect to any property or
assets now owned or hereafter acquired by such Domestic Subsidiary except, in
the case of clauses (i) through (iii) above, for any of the foregoing that could
not reasonably be expected to result in a Material Adverse Effect or materially
and adversely to affect the rights or interests of the Lenders.
3. Each Loan Document has been duly executed and delivered by
each Domestic Subsidiary party thereto, and each Loan Document constitutes the
legal, valid and binding obligation of each such Domestic Subsidiary,
enforceable against such Subsidiary in accordance with its terms subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
4. No consent or approval of, registration or filing with, or
any other action by any Federal, state or other Governmental Authority located
in the United States with jurisdiction over the Domestic Subsidiaries is or will
be required in connection with the execution, delivery or performance of the
Loan Documents by the Loan Parties party thereto or the consummation of the
transactions contemplated thereby, other than any such authorizations and
approvals as have already been obtained and are in full force and effect
according to federal, Illinois and Delaware law.
121
5. To the best of our knowledge, there are no pending or
threatened actions, suits or proceedings at law or in equity or by or before any
Governmental Authority against or affecting the Company or any Subsidiary or any
business, property or rights of any such person that involve any Loan Documents
or the transactions contemplated thereby.
6. None of the Company or any of the Subsidiaries is an
investment company or a company controlled by an investment company within the
meaning of the Investment Company Act of 1940.
7. None of the Company or any of the Subsidiaries is a holding
company or a subsidiary company of a holding company within the meaning of the
Public Utility Holding Company Act of 1935.
8. The making of the Loans to the Borrowers and the
application of the proceeds thereof by the Borrowers pursuant to the terms of
the Credit Agreement will not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
122
EXHIBIT C
1. Each of Chicago Bridge & Iron Company N.V. ("the Company"),
Lealand Finance Company, B.V. ("Lealand"), Chicago Bridge & Iron Company B.V.
("CBICBV") and CBI (Europe) B.V. ("CBIE") (a) is a corporation duly organized,
validly existing under the laws of the Netherlands, and (b) has the corporate
power and authority to execute, deliver and perform each of its obligations
under each of the Credit Agreement, and where applicable an Additional Guarantor
Agreement, a Borrowing Subsidiary Agreement and any notes delivered by each of
them pursuant to Section 2.09(e) (the "Loan Documents",) and to borrow under the
Credit Agreement.
2. The execution, delivery and performance by the Company,
Lealand, CBICBV and CBIE of each of the Loan Documents to which each is a party
and the borrowings thereunder by the Company, Lealand, CBICBV and CBIE (a) have
been duly authorized by all requisite corporate and, if necessary, stockholder
action of the Company, Lealand, CBICBV and CBIE and (b) will not violate (A) any
provision of the certificate of incorporation or by-laws of the Company,
Lealand, CBICBV or CBIE (B) any law or statute.
3. Each Loan Document to which each of the Company, Lealand,
CBICBV and CBIE is a party has been duly executed and delivered by the Company,
Lealand, CBICBV and CBIE .
4. No authorization, action, consent or approval of,
registration or filing with or any other action by any Netherlands Governmental
Authority is or will be required in connection with the execution, delivery and
performance by the Company, Lealand, CBICBV or CBIE of the Loan Documents to
which each is a party or the consummation of the transactions contemplated
thereby, other than (i) [SPECIFY APPROVALS] and (ii) such authorizations and
approvals as have already been obtained and are in full force and effect.
5. The governing law clause set forth in Section 10.09 of the
Credit Agreement, subjecting the Credit Agreement to Illlinois law, is valid and
binding under the laws of the Netherlands and would be given effect by the
courts of the Netherlands. The provisions included in each of the Loan Documents
to which the Company, Lealand, CBICBV, CBIE and each Foreign Subsidiary is party
whereby it irrevocably submits to the jurisdiction of any Illinois State court
or Federal court of the United States of America sitting in Chicago, and any
appellate court from any thereof (collectively, the " Illinois Courts"), are
valid and binding on it under the laws of the Netherlands. The courts of the
Netherlands would award a judgment in United States Dollars to the extent
provided in the Credit Agreement.
6. It is not necessary under the laws of the Netherlands that
any of the Administrative Agent, the Issuing Banks, the Swing Line Lenders or
any Lender be licensed, qualified or entitled to carry on business in the
Netherlands (a) by reason of the execution or performance of the Credit
Agreement or any other Loan Document or (b) in order to enable any of them to
enforce their respective rights under the Credit Agreement or any other Loan
123
Document, and none of them is or will be deemed to be resident, domiciled,
carrying on business or subject to taxation in the Netherlands by reason of the
execution, performance or enforcement of the Credit Agreement or any other Loan
Document.
124
EXHIBIT D
[FORM OF]
BORROWING SUBSIDIARY AGREEMENT dated as of [ ], among
CHICAGO BRIDGE & IRON COMPANY N.V., a Netherlands corporation
(the "Company"), [Name of Borrowing Subsidiary], a [ ]
corporation (the "New Borrowing Subsidiary") and Bank One, NA,
as Administrative Agent (the "Administrative Agent").
Reference is hereby made to the Credit Agreement dated as of
September __, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Company, the Borrowing Subsidiaries
party thereto, the Lenders party thereto and Bank One, NA, as Administrative
Agent. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. Under the Credit
Agreement, the Lenders have agreed, upon the terms and subject to the conditions
therein set forth, to make Loans to the Borrowing Subsidiaries, and the Company
and the New Borrowing Subsidiary desire that the New Borrowing Subsidiary become
a Borrowing Subsidiary. The Company represents that the New Borrowing Subsidiary
is a Wholly Owned Subsidiary of the Company. Each of the Company and the New
Borrowing Subsidiary represents and warrants that the representations and
warranties of the Company in the Credit Agreement relating to the Borrowing
Subsidiary and this Agreement are true and correct in all material respects on
and as of the date hereof. Upon execution of this Agreement by the Company, each
of the Guarantors, the New Borrowing Subsidiary and the Administrative Agent,
the New Borrowing Subsidiary shall be a party to the Credit Agreement and shall
constitute a "Borrowing Subsidiary" and a "Borrower" for all purposes thereof,
and the New Borrowing Subsidiary will to be bound by all provisions of the
Credit Agreement.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their authorized officers as of the date first
appearing above.
CHICAGO BRIDGE & IRON
COMPANY N.V.
125
BY: CHICAGO BRIDGE & IRON
COMPANY B.V.
BY:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
126
7
[NAME OF NEW BORROWING SUBSIDIARY]
By
---------------------------------
Name:
Title:
BANK ONE, NA, as Administrative Agent
By
---------------------------------
Name:
Title:
127
EXHIBIT E
FORM OF
BORROWING SUBSIDIARY TERMINATION
Bank One, NA
as Administrative Agent
for the Lenders referred to below
c/o Bank One, NA
1 Bank One Plaza
Chicago, Illinois 60670
[Date]
Ladies and Gentlemen:
The undersigned, Chicago Bridge & Iron Company N.V. (the
"Company"), refers to the Credit Agreement dated as of September __, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Company, the Borrowing Subsidiaries party thereto, the
Lenders party thereto and Bank One, NA, as Administrative Agent. Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
The Company hereby terminates the status of [ ] (the
"Terminated Borrowing Subsidiary") as a Borrowing Subsidiary under the Credit
Agreement. The Company represents and warrants that no Loans made to the
Terminated Borrowing Subsidiary are outstanding as of the date hereof and that
all amounts payable by the Terminated Borrowing Subsidiary in respect of
interest and/or fees (and, to the extent notified by the Administrative Agent or
any Lender, any other amounts payable under the Credit Agreement) pursuant to
the Credit Agreement have been paid in full on or prior to the date hereof.
This instrument shall be construed in accordance with and
governed by the laws of the State of Illinois.
128
9
Very truly yours,
CHICAGO BRIDGE & IRON COMPANY N.V.
BY: CHICAGO BRIDGE & IRON COMPANY
ITS: MANAGING DIRECTOR
By:
--------------------------------
Name:
-----------------------------
Title:
----------------------------
129
EXHIBIT F
[FORM OF]
GUARANTOR AGREEMENT dated as of [ ], among
CHICAGO BRIDGE & IRON COMPANY N.V., a Netherlands
corporation (the "Company"), [Name of Additional
Guarantor], a [ ] corporation (the "Additional
Guarantor"), and Bank One, NA, as Administrative
Agent for the Lenders under the Credit Agreement
referred to below.
A. Reference is made to the Credit Agreement dated as of
September __, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Chicago Bridge & Iron Company N.V., the
Borrowing Subsidiaries party thereto, the Lenders party thereto and Bank One,
NA, as Administrative Agent.
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
C. The Borrowers have entered into the Credit Agreement in
order to induce the Lenders to make Loans. The Additional Guarantor is executing
this Agreement in accordance with the requirements of the Credit Agreement to
become a Guarantor thereunder for the benefit of the Lenders and in order to
induce the Lenders to continue to extend credit and as consideration for credit
heretofore extended.
Accordingly, the Administrative Agent and the Additional
Guarantor agree as follows:
SECTION 1. The Additional Guarantor, by its signature below,
becomes a Guarantor under the Credit Agreement with the same force and effect as
if it were originally a party thereto and the Additional Guarantor hereby (a)
agrees to all the terms and provisions of the Credit Agreement applicable to it
as a Guarantor of the obligations of the Company and the other Borrowers
(including any Subsidiary becoming a Borrower after the date hereof) thereunder
including that the Guarantee of the Guarantors will apply to the Obligations of
each new Borrowing Subsidiary and (b) represents and warrants that the
representations and warranties contained in the Credit Agreement, insofar as
they relate to the Additional Guarantor, are true and correct in all material
respects on and as of the date hereof. Each reference to a "Guarantor" in the
Credit Agreement shall be deemed to include the Additional Guarantor.
SECTION 2. The Additional Guarantor represents and warrants to
the Administrative Agent that this Agreement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, fraudulent
130
conveyance, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement shall become
effective when the Administrative Agent shall have received counterparts of this
Agreement that, when taken together, bear the signatures of the Company, the
Additional Guarantor and the Administrative Agent. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 4. Except as expressly supplemented hereby, the
Credit Agreement shall remain in full force and effect.
SECTION 5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
SECTION 6. All communications and notices hereunder shall be
in writing and given as provided in Section 10.01 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Additional Guarantor Agreement as of the day and year first above written.
CHICAGO BRIDGE & IRON COMPANY N.V.,
BY: CHICAGO BRIDGE & IRON COMPANY B.V.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[NAME OF ADDITIONAL GUARANTOR],
By
----------------------------------
Name:
Title:
131
BANK ONE, NA,
as Administrative Agent,
By
----------------------------------
Name:
Title:
132
Exhibit G-1
ALTERNATE CURRENCY ADDENDUM
FOR AUSTRALIAN BORROWER
ADDENDUM (the "Addendum") dated as of September 30, 1999 to the Credit
Agreement (as defined below).
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Unless otherwise defined herein,
terms defined in the Credit Agreement shall have the same meanings in this
Addendum. As used in this Addendum, the following terms shall have the meanings
specified below:
"Alternate Currency Loan" shall mean any extension of credit,
denominated in Australian Dollars (or "A$") made to CBI Constructors Pty. Ltd.,
a limited liability company organized and existing under the laws of Australia
("Australian Borrower") pursuant to Section 2.04 of the Credit Agreement and
this Addendum. An Alternate Currency Loan shall bear interest at the rates
specified in Schedule II.
"Australian Base Rate" shall mean for any day, a fluctuating
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
publicly announced by Bank One, NA in Adelaide, Australia as its base rate (it
being acknowledged that such announced rate may not necessarily be the lowest
rate charged by Bank One, NA to any of its customers) in effect at its principal
office in Adelaide, Australia; each change in the Australian Base Rate shall be
effective on the date such change is publicly announced as being effective.
"Credit Agreement" shall mean the Credit Agreement dated as of
September 30, 1999, among Chicago Bridge & Iron Company N.V., the Borrowing
Subsidiaries from time to time parties thereto, the financial institutions from
time to time party thereto as Lenders, and Bank One, NA, as Administrative
Agent, and as the same may be amended, waived, modified or restated from time to
time.
"BBSY Bid Rate" means, with respect to any Alternate Currency
Loan for the relevant Interest Period, the rate determined by the Swing Line
Lender under this Addendum to be the Bid Rate quoted on the Reuters page "BBSY"
headed Bank Bid Swap Reference Rate, and set at approximately 9:45 a.m.
(Adelaide time) on the first day of such Interest Period, in the approximate
amount of the Alternate Currency Loan, and having a maturity approximately equal
to such Interest Period; provided, however, if in respect of any Interest Period
the BBSY Bid Rate cannot be determined in accordance with the foregoing
procedures, then the "BBSY Bid Rate" for that day or Interest Period shall be
the rate determined by the Swing Line Lender under this Addendum.
SECTION 1.02. Terms Generally. Unless otherwise defined
herein, terms defined in the Credit Agreement shall have the same meanings in
this Addendum. Wherever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Sections and Schedules shall be deemed
references to Sections of and Schedules to this Addendum unless the context
shall otherwise require.
133
ARTICLE II
THE CREDITS
SECTION 2.01. Alternate Currency Loans. (a) This Addendum (as
the same may be amended, waived, modified or restated from time to time) is an
"Alternate Currency Addendum" as defined in the Credit Agreement and is,
together with the borrowings made hereunder, subject in all respects to the
terms and provisions of the Credit Agreement except to the extent that the terms
and provisions of the Credit Agreement are modified by this Addendum. The Swing
Line Lender party to this Addendum are set forth on Schedule I.
(b) Any modifications to the Interest Payment Dates, Interest
Periods, interest rates and any other special provisions applicable to Alternate
Currency Loans under this Addendum are set forth on Schedule II. If Schedule II
states "Same as Credit Agreement" with respect to any item listed thereon, then
the corresponding provisions of the Credit Agreement, without modification,
shall govern this Addendum and the Alternate Currency Loans made pursuant to
this Addendum.
(c) Any special borrowing procedures or funding arrangements
for Alternate Currency Loans under this Addendum, any provisions for the
issuance of promissory notes to evidence the Alternate Currency Loans made
hereunder and any additional information requirements applicable to Alternate
Currency Loans under this Addendum are set forth on Schedule III. If no such
special procedures, funding arrangements, provisions or additional requirements
are set forth on Schedule III, then the corresponding procedures, funding
arrangements, provisions and information requirements set forth in the Credit
Agreement shall govern this Addendum.
SECTION 2.02. Maximum Borrowing Amounts. (a) The Alternate
Currency Commitment for the Swing Line Lender party to this Addendum is set
forth on Schedule I.
(b) The undersigned Borrower may permanently reduce the
Alternate Currency Commitment under this Addendum in whole or in part, in an
aggregate minimum and integral amounts of 1,000,000 Australian Dollars upon at
least one Business Day's prior written notice to the Administrative Agent and
the Swing Line Lender party to this Addendum, which notice shall be given not
later than 11:00 a.m. (Adelaide time) and shall specify the amount of such
reduction; provided, however, that the amount of the Alternate Currency
Commitment may not be reduced below the aggregate principal amount of the
outstanding Alternate Currency Loans with respect thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations of the Australian Borrower. The
Australian Borrower party hereto represents and warrants to the Swing Line
Lender party to this Addendum that no Default or Event of Default has occurred
and is continuing, and no Default or Event of Default shall arise as a result of
the making of Alternate Currency Loans hereunder or any other transaction
contemplated hereby.
134
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment; Termination. (a) This Addendum
(including the Schedules hereto) may not be amended without the prior written
consent of the Company and the Swing Line Lender party to this Addednum.
(b) This Addendum may not be terminated without the prior
written consent of the Swing Line Lender party to this Addendum party hereto and
the Company unless there are no Alternate Currency Loans outstanding hereunder,
in which case no such consent of the Swing Line Lender party to this Addendum
shall be required; provided, however, that this Addendum shall terminate on the
date that the Credit Agreement terminates in accordance with its terms.
SECTION 4.02. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower under this Addendum, at:
--------------------
--------------------
--------------------
--------------------
(b) if to the Alternate Currency Bank, to it at:
Bank One, NA Australia Branch
Level 19
90 Collins Street
Melbourne Victoria 3000 Australia
Attention: Tim Blackmore
Facsimile: 61-3-9650-2721
with a copy to the Administrative Agent at its address or telecopy number
referenced in Section 10.01 of the Credit Agreement.
All notices and other communications given to any party hereto in accordance
with the provisions of this Addendum shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
SECTION 4.04. Applicable Law. THIS ADDENDUM SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to be duly executed by their duly authorized officers, all as of the
date and year first above written.
CBI CONSTRUCTORS PTY. LTD.
135
as the Borrower under this Addendum
By:
---------------------------------
Name:
Title:
BANK ONE, NA
as the Administrative Agent and as the Swing Line Lender
under this Addendum
By:
---------------------------------
Name:
Title:
Australian Borrower Addendum
136
SCHEDULE I
to Alternate Currency Addendum
for Australian Borrower
ALTERNATE CURRENCY BANK
ALTERNATE CURRENCY COMMITMENT
- ---------------------------------------------------------------------------
Alternate Currency Bank Name Dollar Amount of Alternate Currency
Commitment
- ---------------------------------------------------------------------------
Bank One, NA, Australia Branch U.S.$8,000,000
- ---------------------------------------------------------------------------
Australian Borrower Addendum
137
SCHEDULE II
to Alternate Currency Addendum
for Australian Borrower
MODIFICATIONS
1. Business Day Definition:
"Business Day" shall mean a day (other than a Saturday or Sunday) on
which banks are open for business in Adelaide, Australia.
2. Interest Payment Dates:
Interest shall be paid on each BBSY Rate Alternate Currency Loan at the
end of each Interest Period for each such Alternate Currency Loan. Interest
shall be payable on each Base Rate Alternate Currency Loan on the last day of
each March, June, September and December.
3. Interest Periods: Same as Credit Agreement.
4. Interest Rates:
(a) BBSY Rate Alternate Currency Loans. Each Alternate
Currency Loan to the Australian Borrower and for which an Interest
Period has been selected in accordance with the terms of Article II of
the Credit Agreement and this Addendum 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 a rate per
annum equal to the sum of (i) the BBSY Bid Rate for such Alternate
Currency Loan for such Interest Period plus (ii) the Applicable Rate
(Eurodollar Spread) as in effect from time to time during such Interest
Period; provided, however, after the occurrence and during the
continuance of a Default, the provisions of Section 2.12(d) of the
Credit Agreement shall be applicable.
(b) Base Rate Alternate Currency Loans. Each Alternate
Currency Loan to the Australian Borrower for which no Interest Period
has been selected in accordance with the terms of Article II of the
Credit Agreement and this Addendum shall bear interest from and
including the date such Alternate Currency Loan is made to (but not
including) the date such Alternate Currency Loan is repaid or converted
into a BBSY Rate Alternate Currency Loan in accordance with the terms
of Article II of the Credit Agreement and this Addendum at a rate per
annum equal to the Australian Base Rate as in effect from time to time,
changing as and when said Australian Base Rate changes; provided,
however, after the occurrence and during the continuance of a Default,
the provisions of Section 2.12(d) of the Credit Agreement shall be
applicable.
5. Modifications to Interest Period Selection and Conversion Contained in
Section 2.06:
Notice of selection of Interest Period or conversion or continuation
shall be given by the applicable Borrower as follows:
Alternate Currency Loans: 10:00 a.m (Adelaide time) two (2) Business
Days prior.
Australian Borrower Addendum
138
7. Other:
Additional Conditions Precedent: None.
Termination Date for Addendum: None.
Maximum Number of Interest Periods: None (other than as a result of
the minimum borrowing amounts and increments).
Prepayment Notices: The applicable Borrower shall be permitted to
prepay the Alternate Currency Loans provided notice thereof is given to
the Administrative Agent and the Alternate Currency Bank not later than
10:00 a.m. (Adelaide time) at least one (1) Business Day prior to the
date of such prepayment.
Australian Borrower Addendum
139
SCHEDULE III
to Alternate Currency Addendum
for Australian Borrower
OTHER PROVISIONS
1. Borrowing Procedures:
Notice of Borrowing shall be given by the applicable Borrower
to the Agent not later than 11:00 a.m. (Chicago time) three (3)
Business Days prior and the Agent shall give such notice to the
Alternate Currency Bank as follows:
Alternate Currency Loans: 11:00 a.m (Adelaide time) two (2)
Business Days prior.
2. Funding Arrangements:
Minimum amounts/increments for Alternate Currency Loans, repayments and
prepayments:
Minimum amounts of 100,000 Australian Dollars with increments
of 100,000 Australian Dollars in excess thereof.
3. Promissory Notes: None required.
Australian Borrower Addendum
140
Exhibit G-2
ALTERNATE CURRENCY ADDENDUM
FOR CANADIAN BORROWER
ADDENDUM (the "Addendum") dated as of ____________, ____ to the Credit
Agreement (as defined below).
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Unless otherwise defined herein,
terms defined in the Credit Agreement shall have the same meanings in this
Addendum. As used in this Addendum, the following terms shall have the meanings
specified below:
"ALTERNATE CURRENCY LOAN" shall mean any extension of credit,
denominated in Canadian Dollars (or "Cdn.$") made to the Canadian Borrower
pursuant to Section 2.04 of the Credit Agreement and this Addendum. An Alternate
Currency Loan shall bear interest at the rates specified in Schedule II.
"BA DISCOUNT RATE" means, in respect of any Bankers'
Acceptance to be accepted by the Swing Line Bank party to this Addendum and
purchased by it for its own account, the discount rate used by such Swing Line
Bank to determine the price at which it offers to purchase such Bankers'
Acceptance.
"BANKERS' ACCEPTANCE" means (a) a non-interest bearing bill of
exchange or depository bill subject to the Depository Bills and Notes Act in
Canadian Dollars, having a term of one (1), two (2), three (3) or six (6)
months, and (b) maturing on a Business Day (without allowing for days of grace),
drawn by the Borrower and accepted by the Swing Line Bank party to this Addendum
pursuant to this Addendum as evidenced by such Swing Line Bank's endorsement
thereof.
"BANKERS' ACCEPTANCE ADVANCE" means a Loan in Canadian Dollars
effected by the purchase by the Swing Line Bank party to this Addendum of
Bankers' Acceptances pursuant to the terms of this Addendum equal to the
discounted amount of such Bankers' Acceptances payable on the applicable
maturity dates.
"BANKERS' ACCEPTANCE LOAN" means a Loan, or portion thereof,
which is outstanding by way of Bankers' Acceptances.
"BANKERS' ACCEPTANCE PROCEEDS" means, in respect of each
Bankers' Acceptance Advance, funds (rounded to the nearest cent) in an amount
which is equal to:
Australian Borrower Addendum
141
Face Amount
--------------------
1+ (Rate x Term)
-------------
365
(where "FACE AMOUNT " is the face amount of the Bankers' Acceptance being
purchased, "RATE" is the BA Discount Rate divided by 100 and "TERM " is the
number of days in the term of the Bankers' Acceptance).
"CANADIAN BORROWER" means Horton CBI Limited, a corporation
organized and existing under the laws of Canada, together with its successors
and permitted assigns.
"CANADIAN PRIME RATE" means the rate of interest per annum
publicly announced from time to time by the Swing Line Lender party to this
Addendum at is principal office in Toronto, Ontario, as its "prime rate", as in
effect from time to time, which rate may not be the lowest rate charged by the
Swing Line Lender party to this Addendum to any of its customers and which
Canadian Prime Rate shall change simultaneously with any change in such
announced rate.
"CREDIT AGREEMENT" shall mean the Credit Agreement dated as of
September 30, 1999, among Chicago Bridge & Iron Company N.V., the Borrowing
Subsidiaries from time to time parties thereto, the financial institutions from
time to time party thereto as Lenders, and Bank One, NA, as Administrative
Agent, and as the same may be amended, waived, modified or restated from time to
time.
"STAMPING FEE" is defined in Section 2.02(d) hereof.
SECTION 1.02. Terms Generally. Unless otherwise defined
herein, terms defined in the Credit Agreement shall have the same meanings in
this Addendum. Wherever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Sections and Schedules shall be deemed
references to Sections of and Schedules to this Addendum unless the context
shall otherwise require.
ARTICLE II
THE CREDITS
SECTION 2.01. Alternate Currency Loans. (a) This Addendum (as
the same may be amended, waived, modified or restated from time to time) is an
"Alternate Currency Addendum" as defined in the Credit Agreement and is,
together with the borrowings made hereunder, subject in all respects to the
terms and provisions of the Credit Agreement except to the extent that the terms
and provisions of the Credit Agreement are modified by this Addendum. The Swing
Line Lender party to this Addendum are set forth on Schedule I. For purposes of
this Addendum, "Alternate Currency Loans" shall include Bankers' Acceptance
Advances made pursuant to Section 2.03 hereof.
(b) Any modifications to the Interest Payment Dates, Interest
Periods, interest rates and any other special provisions applicable to Alternate
Currency Loans under this Addendum are set forth on Schedule II. If Schedule II
states "Same as Credit Agreement" with respect to any item listed thereon, then
the corresponding provisions of the Credit Agreement, without modification,
shall govern this Addendum and the Alternate Currency Loans made pursuant to
this Addendum.
Australian Borrower Addendum
142
(c) Any special borrowing procedures or funding arrangements
for Alternate Currency Loans under this Addendum, any provisions for the
issuance of promissory notes to evidence the Alternate Currency Loans made
hereunder and any additional information requirements applicable to Alternate
Currency Loans under this Addendum are set forth on Schedule III. If no such
special procedures, funding arrangements, provisions or additional requirements
are set forth on Schedule III, then the corresponding procedures, funding
arrangements, provisions and information requirements set forth in the Credit
Agreement shall govern this Addendum.
SECTION 2.02. Maximum Borrowing Amounts. (a) The Alternate
Currency Commitment for the Swing Line Lender party to this Addendum is set
forth on Schedule I.
(b) The undersigned Borrower may permanently reduce the
Alternate Currency Commitment under this Addendum in whole or in part, in an
aggregate minimum and integral amounts of 1,000,000 Canadian Dollars upon at
least one Business Day's prior written notice to the Administrative Agent and
the Swing Line Lender party to this Addendum, which notice shall be given not
later than 11:00 a.m. (Toronto time) and shall specify the amount of such
reduction; provided, however, that the amount of the Alternate Currency
Commitment may not be reduced below the aggregate principal amount of the
outstanding Alternate Currency Loans with respect thereto.
SECTION 2.03. Bankers' Acceptances. (a) Subject to the terms
and conditions of the Credit Agreement and this Addendum, the undersigned
Borrower shall be entitled to receive the Bankers' Acceptance Proceeds of
Bankers' Acceptance Advances denominated in Canadian Dollars in accordance with
the provisions of Section 2.04 of the Credit Agreement and this Addendum. For
the purposes of this Addendum, the full face value of Bankers' Acceptances,
without discount, shall be used when calculations are made to determine the
amount of Alternate Currency Loans outstanding. Each determination by the Swing
Line Bank party to this Addendum of the Stamping Fee, the BA Discount Rate and
the Bankers' Acceptance Proceeds shall, in the absence of manifest error be
final, conclusive and binding on the Borrower.
(b) Conditions Applicable to Bankers' Acceptances
(i) Schedule II and Schedule III below set forth
additional conditions applicable to Bankers'
Acceptances.
(ii) Procedures for the Issue of Bankers' Acceptances.
(A) Bankers' Acceptances issued pursuant to this
Addendum shall be denominated in Canadian
Dollars shall mature on or before the
Termination Date, and will be purchased by
the Swing Line Bank party to this Addendum
for its own account, such Swing Line Bank
reserving the right to sell or trade them in
the money market either directly or through
stock brokers or dealers.
(B) Subject to the limitations of Article II of
the Credit Agreement and this Addendum, the
Swing Line Bank party to this Addendum shall
accept the aggregate face amount of the
Bankers' Acceptances requested by the
Borrower. The Swing Line Bank party to this
Addendum shall, on the applicable borrowing
date, notify the undersigned Borrower of the
applicable BA Discount Rate.
Australian Borrower Addendum
143
(iii) In the event that the Borrower shall either (x) fail
to notify the Swing Line Bank party to this Addendum
within two (2) days prior to the date of maturity of
any Bankers' Acceptance of the means pursuant to
which it shall repay the Obligations in respect of
such Bankers' Acceptance, or (y) shall fail to repay
the Obligations in respect of any Bankers' Acceptance
at maturity, in either case, on such maturity date
the Borrower shall be deemed to have elected to
borrow a Canadian Prime Rate Alternate Currency Loan
from the Swing Line Bank party to this Addendum as of
such maturity date, equal in amount to the face
amount of such Bankers' Acceptance. Such Canadian
Prime Rate Alternate Currency Loan shall be made as
of the date of maturity of such Bankers' Acceptance,
automatically, without notice from the Borrower and
without any requirement to satisfy the conditions
precedent otherwise applicable to a Loan. The
proceeds of such Canadian Prime Rate Alternate
Currency Loan shall be used to repay such Bankers'
Acceptance.
(c) Issuance of Bankers' Acceptances
(i) Delivery of Blank Drafts - To facilitate the
acceptance of Bankers' Acceptances pursuant to this
Addendum the Borrower shall from time to time as
required by the Swing Line Bank party to this
Addendum, provide to such Swing Line Bank drafts duly
endorsed in blank by the Borrower in quantities
sufficient for such Swing Line Bank to fulfil its
obligations hereunder. Alternatively, to facilitate
availment of the Loans by way of Bankers'
Acceptances, the Borrower hereby appoints the Swing
Line Bank party to this Addendum as its agent to sign
and endorse on its behalf, in handwriting or by
facsimile or mechanical signature as and when deemed
necessary by such Swing Line Bank, blank forms of
Bankers' Acceptances in order to allow such Swing
Line Bank to complete and accept from time to time
such instruments in the aggregate and face amounts
and for the maturities chosen by the Borrower. The
Borrower recognizes and agrees that all Bankers'
Acceptances signed and/or endorsed on its behalf by
the Swing Line Bank party to this Addendum shall bind
the Borrower as fully and effectually as if signed in
the handwriting of and duly issued by the proper
signing officers of the Borrower. The Swing Line Bank
party to this Addendum shall not be responsible or
liable for any failure to issue a Bankers' Acceptance
as required hereunder if the cause of such failure
is, in whole or in part, due to the failure of the
Borrower to provide requested drafts to such Swing
Line Bank on a timely basis, nor shall such Swing
Line Bank be liable for any demand, loss or other
claim arising by reason of any loss or improper use
of any such draft except a loss or improper use
arising by reason of the failure of such Swing Line
Bank to exercise the same degree of care with respect
to such draft as it exercises for its own securities.
(ii) Execution of Documentation - Drafts of the Borrower
to be accepted as Bankers' Acceptances hereunder
shall be signed as set forth in Section 2.03(c)(i)
above. Notwithstanding that any person whose
signature appears on any Bankers' Acceptance may no
longer be an authorized signatory for the Borrower at
the date of issuance of a Bankers' Acceptance, such
signature shall nevertheless be valid and sufficient
for all purposes as if such authority had remained in
force at the time of such issuance and any such
Bankers' Acceptance so signed shall be binding on the
Borrower.
Australian Borrower Addendum
144
(iii) Depository Bills and Notes Act - All Bankers'
Acceptances accepted by the Swing Line Bank party to
this Addendum under this Addendum shall be issued in
the form of a "depository bill" (as defined in the
Depository Bills and Notes Act ("DBNA")), deposited
with the Canadian Depository for Securities ("CDS"),
and will be made payable to CDS & Co. At that time,
the Swing Line Bank party to this Addendum shall, and
is hereby authorized by the Borrower, to effect the
following and establish and notify the Borrower of
any additional procedures, consistent with the terms
of this Addendum and the requirements of the DBNA, as
are reasonably necessary to accomplish the parties'
intention:
(A) a phrase will be inserted in the drafts held
by the Swing Line Bank party to this
Addendum to the effect that the Bankers'
Acceptance is issued pursuant to the DBNA;
(B) any reference to authentication of a Bankers'
Acceptance will be removed; and
(C) any reference to bearer will be removed and
the Bankers' Acceptances will be payable to
CDS & Co.
(d) Stamping Fees on Bankers' Acceptance The Borrower shall pay, in
respect of each draft accepted by the Swing Line Bank party to this Addendum as
a Bankers' Acceptance, a per annum stamping fee (the "STAMPING FEE") equal to
(1) the Applicable Rate (Eurodollar Spread), changing when and as such
Applicable Rate (Eurodollar Spread) shall change, multiplied by (2) the face
amount of such Bankers' Acceptance, and calculated based on the number of days
to maturity of such Bankers' Acceptance divided by 365. Such Stamping Fee shall
be payable in advance on the date of issuance of the Bankers' Acceptance. The
Borrower authorizes and directs the Swing Line Bank party to this Addendum to
deduct from the Bankers' Acceptance Proceeds of Bankers' Acceptances purchased
by the Swing Line Bank party to this Addendum for its own account, the amount of
each such Stamping Fee upon the issue of each Bankers' Acceptance.
(e) Alternative Basis of Borrowing. If at any time during the term of
this Addendum the Swing Line Bank party to this Addendum determines in good
faith (which determination shall be final, conclusive and binding upon the
Borrower) that by reason of circumstances or changes affecting the market for
Bankers' Acceptances the market for Bankers' Acceptances no longer exists, is
too weak for its normal use by such Swing Line Bank or is not capable in the
normal course of business to absorb Bankers' Acceptances accepted by such Swing
Line Bank, then, the Swing Line Bank party to this Addendum shall immediately
notify the Borrower of its determination in writing. For so long as the
circumstances referred to in the foregoing sentence shall continue, the Swing
Line Bank party to this Addendum shall not be obliged to make any further Loans
available by way of Bankers' Acceptances and thereafter, until notice to the
contrary is given to the Borrower by such Swing Line Bank, such Swing Line Bank
shall only be obligated to make other types of Loans available to the Borrower
hereunder, and the principal amount of all Loans outstanding by way of Bankers'
Acceptances owed to the Swing Line Bank party to this Addendum shall, at the
expiry of the related Bankers' Acceptances, be converted without novation into
Canadian Prime Rate Alternate Currency Loans.
(f) Waiver of Claim. The Borrower shall not have the right to set up as
against the Swing Line Bank party to this Addendum any defense or right of
action, of indemnification or of set-off or compensation or any similar claim of
any nature whatsoever which the Borrower may have had at any
Australian Borrower Addendum
145
time or may have in the future with respect to any holder of one or more
Bankers' Acceptance(s) issued hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations of the Canadian Borrower. The
Canadian Borrower party hereto represents and warrants to the Swing Line Lender
party to this Addendum that no Default or Event of Default has occurred and is
continuing, and no Default or Event of Default shall arise as a result of the
making of Alternate Currency Loans hereunder or any other transaction
contemplated hereby.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment; Termination. (a) This Addendum
(including the Schedules hereto) may not be amended without the prior written
consent of the Company and the Swing Line Lender party to this Addendum.
(b) This Addendum may not be terminated without the prior
written consent of each Swing Line Lender party hereto and the Canadian Borrower
unless there are no Alternate Currency Loans outstanding hereunder, in which
case no such consent of the Swing Line Lender party to this Addendum shall be
required; provided, however, that this Addendum shall terminate on the date that
the Credit Agreement terminates in accordance with its terms.
SECTION 4.02. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrowers under this Addendum, at:
--------------------
--------------------
--------------------
--------------------
(b) if to the Swing Line Bank party to this Addendum, to it at:
--------------------
--------------------
--------------------
--------------------
with a copy to the Administrative Agent at its address or telecopy number
referenced in Section 10.01 of the Credit Agreement.
All notices and other communications given to any party hereto in accordance
with the provisions of this Addendum shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
Canadian Borrower Addendum
146
SECTION 4.04. Applicable Law. THIS ADDENDUM SHALL BE CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to be duly executed by their duly authorized officers, all as of the
date and year first above written.
HORTON CBI LIMITED
as the Borrower under this Addendum
By:
------------------------------
Name:
Title:
BANK ONE, NA
as the Administrative Agent
By:
------------------------------
Name:
Title:
BANK OF MONTREAL
as the Swing Line Lender under this Addendum
By:
------------------------------
Name:
Title:
Canadian Borrower Addendum
147
SCHEDULE I
to Alternate Currency Addendum
for Canadian Borrower
ALTERNATE CURRENCY BANK
ALTERNATE CURRENCY COMMITMENT
- ---------------------------------------------------------------------
Swing Line Bank Name Dollar Amount of Alternate Currency
Commitment
- ---------------------------------------------------------------------
Bank of Montreal U.S.$8,000,000
- ---------------------------------------------------------------------
Canadian Borrower Addendum
148
SCHEDULE II
to Alternate Currency Addendum
for Canadian Borrower
MODIFICATIONS
1. Business Day Definition:
"Business Day" shall mean a day (other than a Saturday or Sunday) on
which banks are open for business in Toronto, Canada.
2. Interest Payment Dates:
Interest shall be payable on each Canadian Prime Rate Alternate
Currency Loan on the last Business Day of each calendar month.
3. Interest Periods: Same as Credit Agreement.
4. Interest Rates:
(a) Canadian Prime Rate Alternate Currency Loans. Each
Alternate Currency Loan to the Canadian Borrower for which no Interest
Period has been selected in accordance with the terms of Article II of
the Credit Agreement and this Addendum shall bear interest from and
including the date such Alternate Currency Loan is made to (but not
including) the date such Alternate Currency Loan is repaid or converted
into a Bankers' Acceptance Loan in accordance with the terms of Article
II of the Credit Agreement and this Addendum at a rate per annum equal
to the Canadian Prime Rate as in effect from time to time, changing as
and when said Canadian Prime Rate changes; provided, however, after the
occurrence and during the continuance of a Default, the provisions of
Section 2.12(d) of the Credit Agreement shall be applicable.
(b) Interest Act (Canada). Notwithstanding any other provision
of the Credit Agreement or this Addendum, if and to the extent that the
laws of Canada are applicable to interest payable under the Credit
Agreement or this Addendum, no interest on the credit advanced will be
payable in excess of that permitted by the laws of Canada. If the
effective annual rate of interest calculated in accordance with
generally accepted actuarial practices and principles, would exceed 60%
per annum (or such other rate as the Parliament of Canada may determine
from time to time as the criminal rate) on the credit advanced under
the Credit Agreement and this Addendum, then, (a) the amount of any
charges for the use of money, expenses, fees or other charges payable
in connection therewith will be reduced to the extent necessary to
eliminate such excess, (b) any remaining excess that has been paid will
be credited towards repayment of the principal amount and (c) any
overpayment that may remain after such crediting will be returned
forthwith on demand to the undersigned Borrower. In this provision, the
terms "interest", "criminal rate" and "credit advanced" have the
meaning ascribed to them in Section 347 of the Criminal Code of Canada.
If and to the extent that the laws of Canada are applicable to interest
payable under the Credit Agreement or this Addendum for the purpose of
the Interest Act (Canada) the yearly rate of interest to which interest
calculated on the basis of a 360- or 365-day year is equivalent, is the
rate of
Canadian Borrower Addendum
149
interest as determined herein multiplied by the number of days in such
year divided by 360 or 365, as the case may be.
5. Modifications to Interest Period Selection and Conversion Contained in
Section 2.06:
Notice of selection of Interest Period or conversion or continuation
shall be given by the applicable Borrower as follows:
Alternate Currency Loans: 10:00 a.m (Toronto time) two (2) Business
Days prior.
Any Conversion of a Bankers' Acceptance Advance shall be made on, and
only on, the maturity date applicable thereto. In the event that a
Bankers' Acceptance Advance is to be continued as a Bankers' Acceptance
Advance, the Bankers' Acceptance Proceeds arising from the continued
Bankers' Acceptance Advance shall be retained by the Swing Line Bank
party to this Addendum to be applied by it to the face amount of the
Bankers' Acceptance maturing on the date of such advance, and the
Borrower shall pay to the Swing Line Bank party to this Addendum, on
such date, an amount equal to the difference between the face amount at
maturity of the maturing Bankers' Acceptance and the Bankers'
Acceptance Proceeds of the Bankers' Acceptance to be issued.
Notwithstanding anything to the contrary contained in the Credit
Agreement or this Addendum, no Loan may be converted into or continued
as a Bankers' Acceptance Advance when any Default or Event of Default
has occurred and is continuing.
6. Other:
Additional Conditions Precedent: None.
Termination Date for Addendum: None.
Maximum Number of Interest Periods: None (other than as a result of the
minimum borrowing amounts and increments).
Prepayment Notices: The applicable Borrower shall be permitted to
prepay the Alternate Currency Loans (other than Loans by way of
Bankers' Acceptances) provided notice thereof is given to the
Administrative Agent and the Swing Line Bank party to this Addendum not
later than 10:00 a.m. (Toronto time) at least one (1) Business Day
prior to the date of such prepayment. The applicable Borrower shall not
be permitted to prepay Loans made by way of Bankers' Acceptances.
Canadian Borrower Addendum
150
SCHEDULE III
to Alternate Currency Addendum
for Canadian Borrower
OTHER PROVISIONS
1. Borrowing Procedures:
(A) Notice of Borrowing of an Alternate Currency Loan hereunder
(other than Loans by way of Bankers' Acceptances) shall be
given by the applicable Borrower to the Administrative Agent
not later than 11:00 a.m. (Chicago time) three (3) Business
Days prior and the Administrative Agent shall give such notice
to the Swing Line Lender party to this Addendum as follows:
Alternate Currency Loans: 11:00 a.m (Toronto time)
two (2) Business Days prior.
(B) Notice of Borrowing of (i) Loans to be made by way of Bankers'
Acceptances, (ii) conversion of outstanding Canadian Prime
Rate Alternate Currency Loans into Bankers' Acceptances, and
(iii) renewal of Loans outstanding by way of Bankers'
Acceptances (which renewals shall be in the same form of Loan)
shall be given by the applicable Borrower to the
Administrative Agent and the Swing Line Bank party to this
Addendum not later than 11:00 a.m. (Toronto time) two (2)
Business Days prior. Such notice shall also state the term
applicable to such Bankers' Acceptance.
2. Funding Arrangements:
(A) Minimum amounts/increments for Alternate Currency Loans (other
than Loans by way of Bankers' Acceptances), repayments and
prepayments:
Minimum amounts of 100,000 Canadian Dollars with
increments of 100,000 Canadian Dollars in excess
thereof.
(B) Minimum amounts/increments for Loans by way of Bankers'
Acceptances and repayments:
Minimum amounts of 1,000,000 Canadian Dollars with
increments of 100,000 Canadian Dollars in excess
thereof.
3. Promissory Notes: None required.
Canadian Borrower Addendum