CONFORMED COPY
EXHIBIT 10.17
CREDIT AGREEMENT
dated as of
March 6, 1997
among
CHICAGO BRIDGE & IRON COMPANY N.V.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
___________________________
CHASE SECURITIES INC.,
as Arranger
[CS&M # 6700-500]
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms............................ 1
SECTION 1.02. Classification of Loans and Borrowings... 25
SECTION 1.03. Terms Generally.......................... 26
SECTION 1.04. Accounting Terms; GAAP................... 26
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments.............................. 26
SECTION 2.02. Loans and Borrowings..................... 26
SECTION 2.03. Requests for Revolving Borrowings........ 28
SECTION 2.04. Competitive Bid Procedure................ 29
SECTION 2.05. Letters of Credit........................ 32
SECTION 2.06. Funding of Borrowings.................... 40
SECTION 2.07. Interest Elections....................... 41
SECTION 2.08. Termination and Reduction of
Commitments............................ 42
SECTION 2.09. Repayment of Loans; Evidence of Debt..... 43
SECTION 2.10. Prepayment of Loans...................... 44
SECTION 2.11. Fees..................................... 45
SECTION 2.12. Interest................................. 47
SECTION 2.13. Alternate Rate of Interest............... 48
SECTION 2.14. Increased Costs.......................... 49
SECTION 2.15. Break Funding Payments................... 51
SECTION 2.16. Taxes.................................... 52
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.................... 53
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders................................ 55
SECTION 2.19. Borrowing Subsidiaries................... 56
2
ARTICLE III
Representations and Warranties
------------------------------
the Subsidiaries.
SECTION 3.01. Organization; Powers..................... 57
SECTION 3.02. Authorization; Enforceability............ 57
SECTION 3.03. Governmental Approvals; No Conflicts..... 58
SECTION 3.04. Financial Condition; No Material Adverse
Change................................. 58
SECTION 3.05. Properties............................... 59
SECTION 3.06. Litigation and Environmental Matters..... 59
SECTION 3.07. Compliance with Laws and Agreements...... 60
SECTION 3.08. Investment and Holding Company Status.... 60
SECTION 3.09. Taxes.................................... 60
SECTION 3.10. ERISA.................................... 61
SECTION 3.11. Disclosure............................... 61
SECTION 3.12. Subsidiaries............................. 61
SECTION 3.13. Use of Proceeds.......................... 62
SECTION 3.14. Solvency................................. 62
SECTION 3.15. Federal Reserve Regulations.............. 62
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date........................... 63
SECTION 4.02. Each Credit Event........................ 65
SECTION 4.03. Initial Borrowing by Each Borrowing
Subsidiary............................. 65
ARTICLE V
Affirmative Covenants
---------------------
SECTION 5.01. Financial Statements and Other
Information............................ 66
SECTION 5.02. Notices of Material Events............... 68
SECTION 5.03. Existence; Conduct of Business........... 68
SECTION 5.04. Payment of Obligations................... 69
SECTION 5.05. Maintenance of Properties; Insurance..... 69
SECTION 5.06. Books and Records; Inspection Rights..... 69
SECTION 5.07. Compliance with Laws..................... 70
SECTION 5.08. Use of Proceeds and Letters of Credit.... 70
SECTION 5.09. Further Assurances....................... 70
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness............................. 71
SECTION 6.02. Liens.................................... 72
SECTION 6.03. Sale and Lease-Back Transactions......... 74
SECTION 6.04. Fundamental Changes...................... 74
SECTION 6.05. Investments, Loans, Advances,
Guarantees and Acquisitions............ 75
SECTION 6.06. Hedging Agreements....................... 75
3
SECTION 6.07. Restricted Payments and Issuances........ 76
SECTION 6.08. Transactions with Affiliates............. 76
SECTION 6.09. Restrictive Agreements................... 77
SECTION 6.10. Capital Expenditures..................... 77
SECTION 6.11. Consolidated Interest Coverage Ratio..... 78
SECTION 6.12. Consolidated Leverage Ratio.............. 78
SECTION 6.13. Consolidated Tangible Net Worth.......... 78
ARTICLE VII
Events of Default........................ 78
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ARTICLE VIII
The Administrative Agent................. 82
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ARTICLE IX
Guarantee................................ 85
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ARTICLE X
Miscellaneous
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SECTION 10.01. Notices.................................. 87
SECTION 10.02. Waivers; Amendments...................... 88
SECTION 10.03. Expenses; Indemnity; Damage Waiver....... 89
SECTION 10.04. Successors and Assigns................... 91
SECTION 10.05. Survival................................. 92
SECTION 10.06. Counterparts; Integration;
Effectiveness.......................... 93
SECTION 10.07. Severability 96
SECTION 10.08. Right of Setoff 96
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process.................. 96
SECTION 10.10. WAIVER OF JURY TRIAL 97
SECTION 10.11. Headings 97
SECTION 10.12. Confidentiality 98
SECTION 10.13. Interest Rate Limitation 99
SECTION 10.14. Conversion of Currencies 99
SCHEDULES:
---------
Schedule 1.01 -- Material 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
4
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
CREDIT AGREEMENT dated as of March 6, 1997, among
CHICAGO BRIDGE & IRON COMPANY N.V., the BORROWING
SUBSIDIARIES party hereto, the LENDERS party hereto, and
THE CHASE MANHATTAN BANK, as Administrative 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 to repay the Praxair Indebtedness and 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
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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 The Chase Manhattan Bank, in its capacity as
--------------------
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
----------------------------
form supplied by the Administrative Agent.
2
"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 rate per annum equal to the
-------------------
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"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:
Consolidated Leverage Eurodollar Facility Fee L/C Participation Fees
--------------------- ---------- ------------ -----------------------
Categories: Ratio Spread Rate Performance L/Cs Standby L/Cs
---------- ----- ------ ---- ---------------- -------------
Category 1 Less than 1.0 to 1.0 .325% .175% .200% .325%
----------
Category 2 Greater than or equal to .625% .250% .400% .625%
---------- 1.0
Category 3 to 1.0 but less than 1.5 to .750% .250% .525% .750%
---------- to 1.0 but less than 2.0 to
1.0
Category 4 Greater than or equal to .875% .250% .650% .875%
---------- 2.0 to 1.0
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 June 30, 1997, the Eurodollar
Spread, Facility Fee
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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 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.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
------------
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"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) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
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"Borrowing Request" means a request by a Borrower for a Revolving Borrowing
-----------------
in accordance with Section 2.03.
"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 New York City 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.
"CBHI" means Chi Bridge Holdings, Inc., a direct, Wholly Owned Subsidiary
----
of Praxair.
"CBICBV" means Chicago Bridge & Iron Company B.V., a direct, Wholly Owned
------
Subsidiary of CBHI that, pursuant to the Reorganization, will become a direct,
Wholly Owned Subsidiary of the Company.
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) other than Praxair and its Affiliates, of shares
representing 25% or more of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Company; (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
5
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; or (c) after the Reorganization, New CBIC or CBICBV
shall cease to be a Wholly Owned Subsidiary of the Company.
"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
Competitive 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 to acquire participations in 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
6
Applicable Percentage of the total Committed LC Exposure at such time.
"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).
"Competitive Loan" means a Loan made pursuant to Section 2.04.
----------------
"Competitive Loan Bid" means an offer by a Lender to make a Competitive
--------------------
Loan in accordance with Section 2.04.
"Competitive Loan Bid Rate" means, with respect to any Competitive Bid, the
-------------------------
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Loan Bid Request" means a request by a Borrower for
----------------------------
Competitive Bids in accordance with Section 2.04.
"Consolidated Capital Expenditures" means, for any period, all additions to
---------------------------------
property, plant and equipment and other capital expenditures of the Company and
its
7
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 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 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.
"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
8
person's assets are acquired by the Company or any of the Subsidiaries.
"Consolidated Tangible Net Worth" means (a) total shareholders' equity of
-------------------------------
the Company and its consolidated Subsidiaries minus (b) the aggregate amount of
-----
all intangible assets of the Company and its consolidated Subsidiaries, all as
determined on a consolidated basis in accordance with GAAP.
"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.
------------ ----------
"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.
"dollars" or "$" refers to lawful money of the United States of America.
------- -
"Domestic Borrowing Subsidiary" means any Borrowing Subsidiary that is a
-----------------------------
Domestic Subsidiary.
"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).
"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.
"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,
9
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.
"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 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 (or, in the case of
a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article VII.
----------------
10
"Excluded Foreign Subsidiary" means any Foreign Subsidiary (a) that is
---------------------------
prohibited by applicable law from becoming, or the officers or directors of
which would incur civil or criminal liabilities or penalties under applicable
law in the event it became, a Guarantor, or (b) that cannot become a Guarantor
without incurring, or causing the Company or any of its Subsidiaries to incur,
tax or other liabilities that the Company and the Administrative Agent agree to
be excessive in relation to the benefits that would be conferred on the Lenders
by such Subsidiary becoming a Guarantor.
"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 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 (i) 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) or (ii) such withholding tax is imposed on payments by any Borrowing
Subsidiary that becomes a party to this Agreement after such Foreign Lender
becomes a party hereto 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
11
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.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
----------
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
---------------
Rate.
"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.
"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,
12
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 or (iv) guarantees of the obligations of the Company or any Subsidiary
under any Hedging Agreement not prohibited by this Agreement.
"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
13
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 and (j) all obligations, contingent
or otherwise, of such Person in respect of bankers' acceptances. 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 and (c) with respect to any Fixed
Rate 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 Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Loan Bid Request), each day prior to the last day of
such Interest Period that occurs at intervals of 90 days' duration after the
first day of such Interest Period, and any other dates that are specified in the
applicable Competitive Loan Bid Request as Interest Payment Dates with respect
to such Borrowing.
14
"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
Fixed Rate Borrowing, the period (which shall not be less than one day or more
than 360 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Loan Bid Request; 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 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.
15
"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 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 made by the Lenders to the Borrowers pursuant to
-----
this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest at a
------
rate based on the LIBO Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBO Rate to determine the rate of interest applicable
to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
"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.
16
"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 fifth anniversary of the date of this agreement.
-------------
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"New CBIC" means a newly organized Delaware corporation owned by CBHI that,
--------
pursuant to the Reorganization, will become a direct, Wholly Owned Subsidiary of
the Company.
17
"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, and (ii) all other monetary obligations of the
Borrowers and Guarantors hereunder and thereunder.
"Offering" means the sale by CBHI, following the Reorganization, of common
--------
shares representing at least a majority interest in the Company pursuant to an
initial public offering registered with the Securities and Exchange Commission.
"Old CBIC" means Chicago Bridge & Iron Company, a Delaware corporation and
--------
a direct, Wholly Owned Subsidiary of CBHI.
"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) and (b) the aggregate consideration (including the fair market value of
non-cash consideration) paid in connection with such acquisition, when taken
together with all previous Permitted Acquisitions, shall not exceed $5,000,000
during any fiscal year of the Company or $15,000,000 in the aggregate during the
term of this Agreement.
18
"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
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; and
(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
19
financial institution satisfying the criteria described in clause (c) above.
"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.
"Praxair" means Praxair, Inc., a Delaware corporation.
-------
"Praxair Indebtedness" means $53,900,000 of long-term Indebtedness owed by
--------------------
Old CBIC to Praxair or its Affiliates and reflected on the consolidated balance
sheet of Old CBIC as of December 31, 1996, included in the Registration
Statement, which Indebtedness will be assumed by New CBIC as part of the
Reorganization.
"Prime Rate" means the rate of interest per annum publicly announced from
----------
time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 10.04.
--------
"Registration Statement" means the Registration Statement relating to the
----------------------
Offering, as filed with the Commission on December 17, 1996, as amended by
Amendment No. 1 thereto, filed with the Commission on February 11, 1997, and
Amendment No. 2 thereto, filed with the Commission on February 28, 1997.
"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
20
jurisdiction imposing (or having the power to impose) withholding tax on
payments by the Company or such Borrowing Subsidiary under this Agreement.
"Reorganization" means, collectively, (i) the distribution by Old CBIC of
--------------
the capital stock of its non-United States subsidiaries to CBHI, (ii) the
contribution by CBHI of the capital stock of such non-United States subsidiaries
to the CBICBV, (iii) the distribution by Old CBIC of the capital stock of its
United States Subsidiaries to CBHI, (iv) the contribution by CBHI of the capital
stock of such United States Subsidiaries to New CBIC, (v) the contribution by
CBHI of the capital stock of New CBIC and CBICBV to the Company, and (vi) the
acquisition and assumption by New CBIC of any remaining assets and liabilities
of Old CBIC.
"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 Loans and Competitive LC Exposures of the Lenders shall be included
in their respective Revolving Credit Exposures in determining the Required
Lenders.
"Restricted Payment" means any dividend or other distribution (whether in
------------------
cash, securities or other property) with respect to any shares of any class of
capital stock of the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of capital stock or any option, warrant or other
right to acquire any such shares of capital stock.
"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.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
--------------
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
---
Inc.
"Standby Letter of Credit" means any Letter of Credit other than a
------------------------
Performance Letter of Credit.
21
"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 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 (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) 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.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
-----
deductions, charges or withholdings imposed by any Governmental Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary market
-----------------------------
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day is not a Business Day, the next preceding Business
22
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"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 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, the Reorganization, the repayment of the Praxair
Indebtedness, the Offering and the other transactions contemplated hereby.
"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, the Alternate Base Rate or,
in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed 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.
"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.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
---------------------------------------
this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings
-----
23
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 mascu line,
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 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.
24
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 principal amount of outstanding Competitive Loans
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. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. 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 and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the applicable Borrower
may request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurodollar Loans or Fixed Rate 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
--------
25
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). Each
Competitive Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $4,000,000. 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
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City 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 contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City 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,
26
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. Competitive Loan Bid Procedure. (a) Subject to the
------------------------------
terms and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Loan Bids and may (but shall not
have any obligation to) accept Competitive Loan Bids and borrow Competitive
Loans; provided that the sum of the total Revolving Credit Exposures plus the
--------
aggregate principal amount of outstanding Competitive Loans plus the aggregate
Competitive L/C Exposures at any time shall not exceed the total Commitments.
To request Competitive Loan Bids, a Borrower shall notify the Administrative
Agent of such request by telephone, in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, four Business Days before the date of
the proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing; provided that the Borrowers may submit up to (but not more
--------
than) three Competitive Loan Bid Requests on the same day, but a Competitive
Loan Bid Request shall not be made within five Business Days after the date of
any previous Competitive Loan Bid Request, unless any and all such previous
Competitive Loan Bid Requests shall have been withdrawn or all Competitive Loan
Bids received in response thereto rejected. Each such telephonic Competitive
Loan Bid Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Loan Bid Request in a form
approved by the Administrative Agent and signed by the applicable Borrower.
Each such telephonic and written Competitive Loan Bid 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 a Eurodollar Borrowing or a
Fixed Rate Borrowing;
27
(iv) the Interest Period to be applicable to such Borrowing,
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.
Promptly following receipt of a Competitive Loan Bid Request in accordance with
this Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Loan Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Loan Bids to any Borrower in response to a Competitive Loan
Bid Request. Each Competitive Loan Bid by a Lender must be in a form approved by
the Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive Borrow
ing. Competitive Loan 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 Lender as
promptly as practicable. Each Competitive Loan Bid shall specify (i) the
principal amount (which shall be a minimum of $4,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competi tive Borrowing requested by the applicable Borrower) of the Competitive
Loan or Loans that the Lender is willing to make, (ii) the Competitive Loan Bid
Rate or Rates at which the Lender is prepared to make such Loan or Loans
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) and (iii) the Interest Period applicable to each such
Loan and the last day thereof.
(c) The Administrative Agent shall promptly and in no event later
than 10:15 a.m. New York time, on the proposed date of borrowing, notify the
relevant Borrower by telecopy of the Competitive Loan Bid Rate and the principal
amount specified in each Competitive Loan Bid and the identity of the Lender
that shall have made such Competitive Loan Bid.
(d) Subject only to the provisions of this paragraph, a Borrower may
accept or reject any Competitive Loan Bid. The relevant Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopy in
28
a form approved by the Administrative Agent, whether and to what extent it has
decided to accept or reject each Competitive Loan Bid, in the case of a
Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before the date of the proposed Competitive Borrowing, and
in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the proposed date of the Competitive Borrowing; provided that (i) the
--------
failure of such Borrower to give such notice shall be deemed to be a rejection
of each Competitive Loan Bid, (ii) such Borrower shall not accept a Competitive
Loan Bid made at a particular Competitive Loan Bid Rate if such Borrower rejects
a Competitive Loan Bid made at a lower Competitive Loan Bid Rate for the same
Interest Period, (iii) the aggregate amount of the Competitive Loan Bids
accepted by such Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Loan Bid Request,
(iv) to the extent necessary to comply with clause (iii) above, such Borrower
may accept Competitive Loan Bids at the same Competitive Loan Bid Rate in part,
which acceptance, in the case of multiple Competitive Loan Bids at such
Competitive Loan Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Loan Bid, and (v) except pursuant to clause (iv) above,
no Competitive Loan Bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a minimum principal amount of $4,000,000 and an integral
multiple of $1,000,000; provided further that if a Competitive Loan must be in
----------------
an amount less than $4,000,000 because of the provisions of clause (iv) above,
such Competitive Loan may be for a minimum of $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Loan Bids at a particular Competitive Loan Bid
Rate pursuant to clause (iv) the amounts shall be rounded to integral multiples
of $1,000,000 in a manner determined by such Borrower. A notice given by any
Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Loan Bid has been accepted
(and, if so, the amount and Competitive Loan Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Loan Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Loan Bid in its capacity as a Lender, it shall submit such Competitive Loan Bid
directly to the relevant Borrower at least one quarter of an hour earlier than
the time by which the other Lenders are required to
29
submit their Competitive Loan Bids to the Administrative Agent pursuant to
paragraph (b) of this Section.
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
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 such Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or extension) a
notice 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
11:00 a.m., New York City time, six Business Days
30
before the date of the proposed issuance of the Competitive Letter of 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 re ceived by the Administrative
Agent by telecopy not later than 9:30 a.m., New York City 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 Competi tive 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 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
31
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 10:30 a.m., New York
City 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 extension (i) the LC
Exposure shall not exceed $35,000,000 and (ii) the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of outstanding Competitive
Loans 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 close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit or, in the case of any renewal or
extension thereof, one year after such renewal or extension
32
(it being understood that a Letter of Credit may provide for automatic year-to-
year renewals in the absence of a notice to the contrary from the applicable
Issuing Bank given not fewer than 30 days prior to the expiration date at any
time in effect) and (ii) 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 12:00 noon, New York City time, on the date that such LC
Disbursement is made, if such Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City 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 12:00 noon, New York City time, on (i) the Business Day that
such Borrower receives such notice, if such notice is received prior to 10:00
a.m., New York City
33
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.
(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,
34
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 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.
35
(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 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
36
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 12:00 noon, New York City 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 of the Company)
maintained with the Administrative Agent in New York City and designated by such
Borrower in the applicable Borrowing Request or Competitive Loan Bid Request;
provided that ABR 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.
(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
37
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 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. This Section shall
not apply to Competitive Borrowings, which may not be converted or continued.
(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
38
(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.
(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) In the event that on the third anniversary of the date hereof the
aggregate Commitments shall exceed $50,000,000, the Commitments shall be
automatically reduced on such date, pro rata in accordance with the respective
amounts thereof, to $50,000,000.
(c) 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 principal amount of
outstanding Competitive Loans plus the aggregate Competitive LC Exposure would
exceed the total Commitments.
39
(d) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (c) 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 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 Lender the then unpaid principal
amount of each Competitive Loan of such Lender made to such Borrower on the last
day of the Interest Period applicable to such Loan.
(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.
40
(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 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; provided that no Borrower shall have the right to prepay any
--------
Competitive Loan without the prior consent of the Lender thereof.
(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 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City 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 principal
amount of outstanding Competitive Loans 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
41
prepay Loans (and, if necessary, provide cash collateral to secure reimbursement
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 date
hereof 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, the rate separately agreed upon by such Issuing
Bank and the Company 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 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
42
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 shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for
the Interest Period in effect for such Borrowing plus (or minus, as applicable)
the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) 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.
43
(e) 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, 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.
(f) 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.
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 (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) 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
44
any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, (ii) if
any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing
shall be made as an ABR Borrowing and (iii) any request by any Borrower for a
Eurodollar Competitive Borrowing shall be ineffective; provided that (A) if the
--------
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrowers for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) 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 Fixed
Rate Loans made by such Lender or any Letter of Credit or participation therein;
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 Fixed Rate 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 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 held by,
such Lender, or the Letters of Credit issued by such Issuing
45
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 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 Loan or 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 Loan Bid pursuant to which such Loan was made or the Competitive
Letter of Credit
46
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 Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (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 Section 2.10(b) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Loan Bid
to make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto 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,
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 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 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
47
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 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.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
offs. (a) Each Borrower shall
-----
48
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 12:00 noon, New York City
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 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to the
Issuing Bank 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.
(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 respect of any principal of or
interest on any of its Revolving Loans or participations in such 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 such 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 LC Disbursements in
respect of Committed Letters of Credit of other Lenders to the extent necessary
49
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 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 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
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.
50
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
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 Loans and 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 (and, if a Commitment is being assigned, the Issuing Banks), 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 (other than
Competitive Loans) and participations in 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
51
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.
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, Old CBIC's and 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
52
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.
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, 1996, and December 31, 1995, reported on
by Xxxxxx Xxxxxxxx LLP, 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) The Company has heretofore furnished to the Lenders (i) its
unaudited pro forma combined statements of financial position and combined
statements of operations as of and for the fiscal years 1993-1995 on a stand-
alone basis, and (ii) projections including income statement, balance sheet and
cash flow projections of the Company and the Subsidiaries for the fiscal years
1996 to 2001. Such
53
pro forma financial statements have been prepared in good faith by the Company
and present fairly in all material respects on a pro forma basis the combined
financial position and results of operations of the Company and the Subsidiaries
as of the dates and for the periods indicated. Such projections have been
prepared in good faith by the Company based on assumptions believed by the
management of the Company to be reasonable at the time such projections were
prepared (it being understood that no representation is made by the Company that
such projections will be achieved).
(c) Since December 31, 1996, 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 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 Registration Statement) or (ii) that involve this Agreement,
any Borrowing Subsidiary Agreement or the Transactions.
(b) Except as disclosed in Schedule 3.06 and matters disclosed in the
Registration Statement, 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
54
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 Registration Statement,
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 regula tion 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
55
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.
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. After the consummation of the Reorganization
---------
and the other Transactions to occur on or prior to the Effective Date, (a) the
fair value of the assets of the Company and the Subsidiaries 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 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
56
such debts and liabilities become absolute and matured; and (d) the Company and
the Subsidiaries will not have unreasonably small capital with which to conduct
the businesses in which they are engaged as such businesses 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 G, U or X.
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 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
57
Administrative Agent and the Lenders and dated the Effective Date) of Xxxxxx
Xxxxxx & Xxxxxxx, U.S. counsel for the Company and its Subsidiaries, and Loeff
Xxxxxx Xxxxxxx, 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 (at the time of and after giving effect
to the Transactions occurring on or prior to the Effective Date) and paragraph
(g) and (h) of this Section 4.01.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Company hereunder.
(f) The Lenders shall be satisfied with any changes to the material
terms of the Reorganization or of the agreements to be entered into between the
Company and its Subsidiaries on the one hand and Praxair and its subsidiaries on
the other hand in connection therewith from those set forth in the Registration
Statement.
(g) The Reorganization and the Offering shall have been completed in
accordance with applicable law and on terms consistent in all material respects
with the pro forma financial statements and projections furnished to the
Administrative Agent prior to the date hereof.
58
(h) The Praxair Indebtedness and any other Indebtedness owed by the
Company or its Subsidiaries to Praxair shall have been or shall
simultaneously be repaid in full and cancelled, and no Indebtedness of the
Company or its Subsidiaries (other than the Borrowings hereunder, the
Existing Indebtedness and 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) shall be
outstanding on the Effective Date.
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 3:00 p.m., New York City time, on
April 15, 1997 (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 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
59
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,
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 Xxxxxx Xxxxxxxx LLP or other independent public accountants
of recognized national standing (without a "going concern" or like
60
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 6.10, 6.11, 6.12 and 6.13; (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 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);
61
(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
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
62
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 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,
63
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 to repay the Praxair Indebtedness and 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 G, 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 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 shall be an Excluded Foreign Subsidiary,
promptly furnish to the Administrative Agent a notice identifying such
Subsidiary and explaining in reasonable detail the factors that prevent it from
becoming a Guarantor, and, if the Administrative Agent shall so request, cause
such Subsidiary to execute and deliver any modified or partial guarantee of the
Obligations that can be executed and delivered by such Subsidiary without any of
the adverse consequences set forth in the definition of "Excluded Foreign
Subsidiary".
(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
64
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.
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 Xxxxxxx 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;
65
(f) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; provided that (i) such Indebtedness exists at the time such
--------
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (d) shall not
exceed $5,000,000 at any time outstanding;
(g) Indebtedness of the Subsidiaries in an aggregate amount not to
exceed $15,000,000 secured by Liens referred to in Section 6.02(d); and
(h) other unsecured Indebtedness in an aggregate principal amount for
all Subsidiaries not exceeding $5,000,000 at any time outstanding.
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
66
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;
(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; and
(e) Liens arising or deemed to arise in connection with sale and
lease-back transactions permitted under Section 6.03.
SECTION 6.03. Sale and Lease-Back Transactions. The Company will not,
---------------------------------
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into any arrangement with any Person whereby it shall sell or transfer any
property used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred; provided; that the Company and the Subsidiaries may
--------
enter into such transactions with respect to property with an aggregate book
value at the time of transfer not in excess of $1,000,000.
SECTION 6.04. 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 (i) assets with a book value of
approximately $19,000,000 identified in the Registration Statement, as being
held for sale and (ii) other assets with a book value not in excess of
$5,000,000 during any fiscal year of the Company or $15,000,000 during the term
of this Agreement), or any capital stock of any of its Subsidiaries, in each
case whether now owned or here
67
after 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, (v) the Company and each Subsidiary may sell inventory and sell or
dispose of used or surplus equipment in the ordinary course of business and (vi)
the Company and any Subsidiary may dispose of assets owned or formerly owned by
Cooperheat, Inc. with a book value not in excess of approximately $2,400,000 in
the aggregate; 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 6.05.
(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 6.05. 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 or existing immediately following the
Reorganization in the capital stock of corporations that will become
Subsidiaries pursuant to the Reorganization;
(c) loans or advances made by the Company to any Subsidiary and made
by any Subsidiary to the Company or any other Subsidiary;
68
(d) Guarantees constituting Indebtedness permitted by Section 6.0 1;
(e) Permitted Acquisitions; and
(f) Purchases of capital stock of the Company and the Subsidiaries
permitted under Section 6.07.
SECTION 6.06. Hedging Agreements. The Company will not, and will not
-------------------
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging 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 6.07. Restricted Payments; Issuances of Capital Stock by
--------------------------------------------------
Subsidiaries. The Company will not, and will not permit any of its Subsidiaries
-------------
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that (a) any Subsidiary may make Restricted Payments
to the Company or any other Subsidiary, (b) the Company may declare and pay
dividends with respect to its capital stock payable (i) in additional shares of
its common stock or (ii) so long as no Default shall be continuing at the time
thereof or after giving effect thereto, in cash in an aggregate amount not to
exceed (A) prior to December 31, 1997, $5,000,000 and (B) during any fiscal year
of the Company thereafter, $5,000,000 plus 10% of Consolidated Net Income for
the immediately preceding fiscal year, (c) the Company and its Subsidiaries may
make Restricted Payments pursuant to and in accordance with stock option plans
or other benefit plans for management or employees of the Company and its
Subsidiaries, (d) the Company or any Subsidiary may purchase capital stock
representing any minority interest held by one or more third parties in any
Subsidiary; provided that the aggregate amount of all such Restricted Payments
--------
permitted under this clause (d) shall not exceed $2,000,000 and (e) after the
aggregate amount of the Commitments shall have been reduced to $50,000,000 or
less, so long as no Default shall be continuing at the time thereof or after
giving effect thereto, the Company may make additional repurchases of shares of
its capital stock during any fiscal year in an aggregate amount not to exceed
10% of Consolidated Net Income for the immediately preceding fiscal year. The
Company will not permit any Subsidiary to issue shares of its capital stock
other than to the Company or another Subsidiary (except to the extent such
issuance is required in order to comply with applicable foreign law).
SECTION 6.08. Transactions with Affiliates. The Company will not,
-----------------------------
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any
69
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) the
Reorganization and the Offering, (d) any Restricted Payment permitted by Section
6.07, (e) customary fees paid to members of the Supervisory or Management Board
of the Company or the Board of Directors of any Subsidiary and (f) customary
compensation including salaries and bonuses paid to officers and employees of
the Company and its Subsidiaries.
SECTION 6.09. 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 shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof.
SECTION 6.10. Capital Expenditures. The Company will not permit
---------------------
Consolidated Capital Expenditures to exceed (a) $22,500,000 during the fiscal
year ending December 31, 1997, or (b) $20,000,000 during any fiscal year
thereafter; 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
70
Expenditures during such preceding fiscal year and (ii) $5,000,000.
SECTION 6.11. Consolidated Interest Coverage Ratio. The ratio of
-------------------------------------
Consolidated EBITDA to Consolidated Interest Expense for any period of four
consecutive fiscal quarters shall not be less than 5.00 to 1.00.
SECTION 6.12. Consolidated Leverage Ratio. The Company will not
----------------------------
permit the Consolidated Leverage Ratio as of the end of and for (a) any period
of four consecutive fiscal quarters ending on or prior to March 31, 1998 to be
greater than 2.75 to 1.00 or (b) any period of four consecutive fiscal quarters
ending thereafter to be greater than 2.50 to 1.00.
SECTION 6.13. Consolidated Tangible Net Worth. The Company will not
--------------------------------
permit Consolidated Tangible Net Worth at any time to be less than (a)
Consolidated Net Worth as of December 31, 1996 minus (b) $10,000,000 plus (c)
50% of Consolidated Net Income for each fiscal year, commencing with the fiscal
year ending December 31, 1997, during which Consolidated Net Income is positive.
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
71
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;
(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 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 order or
72
decree approving or ordering any of the foregoing shall be entered;
(i) the Company 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
(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
73
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.
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
74
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 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
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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 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 which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. 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
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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
---------
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.
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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 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 New York 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 New York, and shall indemnify such Lender against any
losses or expenses that it shall sustain as a result of such alternative
payment.
78
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, 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 Company at 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention of the Treasurer, with
a copy to the General Counsel (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (212) (552-5658),
with a copy to Chase Securities Inc., 00 Xxxxx XxXxxxx Xxxxxx, 00xx xxxxx,
Xxxxxxx, Xxxxxxxx
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60603-1097, Attention of Xxx Xxxxxx (Telecopy No. (000) 000-0000);
(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 Agree ment
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 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
80
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 Issuing
Bank hereunder without the prior written consent of the Administrative Agent 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 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 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 Adminis trative Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such
81
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 any 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 Agent or any Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent 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 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.
82
(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.
(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 (and, in
the case of an assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its LC Exposure, the Issuing Banks) 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
Loans, (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
----------------
83
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 obliga tions
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 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 The City of New York 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 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 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.
84
(e) Any Lender may, without the consent of any Borrower, the
Administrative Agent 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 Issuing
Banks and the other Lenders shall continue to deal solely and directly with such
Lender in 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
85
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 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
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.
86
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 New York.
(b) Each Borrower and Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, 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 such New York State or, to the extent
permitted by law, in such Federal court. 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 Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against any Borrower or
Guarantor or its properties in the courts of any jurisdiction.
87
(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 New York hereby irrevocably
appoints CT Corporation System at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, 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 AGREE MENT 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.
SECTION 10.12. Confidentiality. Each of the Administrative Agent,
----------------
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
88
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 "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,
89
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 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
/s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
90
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
BANK OF MONTREAL,
by
/s/ Xxxx X. Xxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
THE FIRST NATIONAL BANK OF
CHICAGO,
by
/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Agent
CREDIT SUISSE FIRST BOSTON,
by
/s/ Xxxx Xxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
by
/s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH,
by
/s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Vice President
by
/s/ Xxx Xxxxxxxx
-------------------------
Name: Xxx Xxxxxxxx
Title: Corporate Banking
