EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 19, 2002
among
CHICAGO BRIDGE & IRON COMPANY N.V.,
the SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS
and
BANK ONE, NA,
(having its principal office in Chicago, Illinois),
as Administrative Agent
and
BANK OF AMERICA, N.A.,
as Syndication Agent
and
XXXXXX TRUST AND SAVINGS BANK
as Documentation Agent
================================================================================
BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and Sole Book Runner
================================================================================
SIDLEY XXXXXX XXXXX & XXXX
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS............................................................................ 1
1.1. Certain Defined Terms................................................................. 1
1.2. Singular/Plural References; Accounting Terms.......................................... 26
1.3. References............................................................................ 26
1.4. Supplemental Disclosure............................................................... 26
ARTICLE II: REVOLVING LOAN FACILITY............................................................... 27
2.1. Revolving Loans....................................................................... 27
(A) Amount of Revolving Loans...................................................... 27
(B) Borrowing/Election Notice...................................................... 27
(C) Making of Revolving Loans...................................................... 27
2.2. Swing Line Loans...................................................................... 27
(A) Amount of Swing Line Loans..................................................... 28
(B) Borrowing/Election Notice...................................................... 28
(C) Making of Swing Line Loans..................................................... 28
(D) Repayment of Swing Line Loans.................................................. 28
2.3. Rate Options for all Advances; Maximum Interest Periods............................... 29
2.4. Optional Payments; Mandatory Prepayments.............................................. 29
(A) Optional Payments.............................................................. 29
(B) Determination of Dollar Amounts of Letters of Credit; Mandatory
Prepayments of Revolving Loans................................................. 30
2.5. Changes in Commitments................................................................ 30
(A) Voluntary Commitment Reductions................................................ 31
(B) Mandatory Commitment Reductions................................................ 31
(C) Increase in Commitments........................................................ 31
2.6. Method of Borrowing................................................................... 34
2.7. Method of Selecting Types and Interest Periods for Advances........................... 34
2.8. Minimum Amount of Each Advance........................................................ 35
2.9. Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.............................................................. 35
(A) Right to Convert............................................................... 35
(B) Automatic Conversion and Continuation.......................................... 35
(C) No Conversion Post-Default or Post-Unmatured Default........................... 35
(D) Borrowing/Election Notice...................................................... 35
2.10. Default Rate.......................................................................... 36
2.11. Method of Payment..................................................................... 36
(A) Method of Payment.............................................................. 36
(B) Market Disruption.............................................................. 37
2.12. Evidence of Debt...................................................................... 37
(A) Loan Account................................................................... 37
(B) Register....................................................................... 37
(C) Entries in Loan Account and Register........................................... 37
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ii
(D) Noteless Transaction; Notes Issued Upon Request................................ 38
2.13. Telephonic Notices.................................................................... 38
2.14. Promise to Pay; Interest and Commitment Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts.............................. 38
(A) Promise to Pay................................................................. 38
(B) Interest Payment Dates......................................................... 38
(C) Commitment Fees; Additional Fees............................................... 39
(D) Interest and Fee Basis; Applicable Floating Rate Margins,
Applicable Eurodollar Margin, Applicable L/C Fee Percentage and
Applicable Commitment Fee Percentage........................................... 39
(E) Taxes.......................................................................... 41
2.15. Notification of Advances, Interest Rates, Prepayments and Aggregate
Commitment Reductions................................................................. 44
2.16. Lending Installations................................................................. 44
2.17. Non-Receipt of Funds by the Administrative Agent...................................... 44
2.18. Termination Date...................................................................... 45
2.19. Replacement of Certain Lenders........................................................ 45
2.20. Subsidiary Borrowers.................................................................. 46
2.21. Judgment Currency..................................................................... 46
2.22. Extension of Termination Date......................................................... 47
ARTICLE III: THE LETTER OF CREDIT FACILITY........................................................ 47
3.1. Obligation to Issue Letters of Credit................................................. 47
3.2. Transitional Provision................................................................ 48
3.3. Types and Amounts..................................................................... 48
3.4. Conditions............................................................................ 48
3.5. Procedure for Issuance of Letters of Credit........................................... 49
(A) Issuance....................................................................... 49
(B) Notice......................................................................... 49
(C) No Amendment................................................................... 49
3.6. Letter of Credit Participation........................................................ 49
3.7. Reimbursement Obligation.............................................................. 50
3.8. Letter of Credit Fees................................................................. 50
3.9. Borrower and Issuing Bank Reporting Requirements...................................... 51
3.10. Indemnification; Exoneration.......................................................... 51
(A) Indemnification................................................................ 51
(B) Risk Assumption................................................................ 52
(C) No Liability................................................................... 52
(D) Survival of Agreements and Obligations......................................... 52
3.11. Market Disruption..................................................................... 52
ARTICLE IV: CHANGE IN CIRCUMSTANCES............................................................... 53
4.1. Yield Protection...................................................................... 53
(A) Yield Protection............................................................... 53
(B) Non-U.S. Reserve Costs or Fees With Respect to Loans and
Letters of Credit to Borrowers................................................. 54
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iii
4.2. Changes in Capital Adequacy Regulations............................................... 54
4.3. Availability of Types of Advances..................................................... 55
4.4. Funding Indemnification............................................................... 55
4.5. Lender Statements; Survival of Indemnity.............................................. 55
ARTICLE V: CONDITIONS PRECEDENT................................................................... 56
5.1. Initial Advances and Letters of Credit................................................ 56
5.2. Initial Advance to Each New Subsidiary Borrower....................................... 56
5.3. Each Advance and Letter of Credit..................................................... 57
(A) No Defaults.................................................................... 57
(B) Representations and Warranties................................................. 57
(C) Maximum Amounts................................................................ 57
5.4. Effectiveness of this Agreement....................................................... 58
ARTICLE VI: REPRESENTATIONS AND WARRANTIES........................................................ 58
6.1. Organization; Corporate Powers........................................................ 59
6.2. Authority, Execution and Delivery; Transaction Documents.............................. 59
(A) Power and Authority............................................................ 59
(B) Execution and Delivery......................................................... 59
(C) Transaction Documents.......................................................... 59
6.3. No Conflict; Governmental Consents.................................................... 59
6.4. Financial Statements.................................................................. 60
(A) Pro Forma Financials........................................................... 60
(B) Audited Financial Statements................................................... 60
(C) Interim Financial Statements................................................... 60
6.5. No Material Adverse Change............................................................ 61
6.6. Taxes................................................................................. 61
(A) Tax Examinations............................................................... 61
(B) Payment of Taxes............................................................... 61
6.7. Litigation; Loss Contingencies and Violations......................................... 61
6.8. Subsidiaries.......................................................................... 62
6.9. ERISA................................................................................. 62
6.10. Accuracy of Information............................................................... 63
6.11. Securities Activities................................................................. 63
6.12. Material Agreements................................................................... 63
6.13. Compliance with Laws.................................................................. 63
6.14. Assets and Properties................................................................. 63
6.15. Statutory Indebtedness Restrictions................................................... 64
6.16. Insurance............................................................................. 64
6.17. Environmental Matters................................................................. 64
(A) Environmental Representations.................................................. 64
(B) Materiality.................................................................... 65
6.18. Representations and Warranties of each Subsidiary Borrower............................ 65
(A) Organization and Corporate Powers.............................................. 65
(B) Binding Effect................................................................. 65
(C) No Conflict; Government Consent................................................ 65
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iv
(D) Filing....................................................................... 65
(E) No Immunity.................................................................. 66
(F) Application of Representations and Warranties................................ 66
6.19. Benefits.............................................................................. 66
6.20. Solvency.............................................................................. 66
ARTICLE VII: COVENANTS............................................................................ 67
7.1. Reporting............................................................................. 67
(A) Financial Reporting............................................................ 67
(B) Notice of Default.............................................................. 68
(C) Lawsuits....................................................................... 68
(D) ERISA Notices.................................................................. 69
(E) Other Indebtedness............................................................. 70
(F) Other Reports.................................................................. 70
(G) Environmental Notices.......................................................... 70
(H) Other Information.............................................................. 71
7.2. Affirmative Covenants................................................................. 71
(A) Existence, Etc................................................................. 71
(B) Corporate Powers; Conduct of Business.......................................... 71
(C) Compliance with Laws, Etc...................................................... 71
(D) Payment of Taxes and Claims; Tax Consolidation................................. 71
(E) Insurance...................................................................... 71
(F) Inspection of Property; Books and Records; Discussions......................... 72
(G) ERISA Compliance............................................................... 72
(H) Maintenance of Property........................................................ 72
(I) Environmental Compliance....................................................... 72
(J) Use of Proceeds................................................................ 73
(K) Subsidiary Guarantors.......................................................... 73
(L) Foreign Employee Benefit Compliance............................................ 74
7.3. Negative Covenants.................................................................... 74
(A) Subsidiary Indebtedness........................................................ 74
(B) Sales of Assets................................................................ 75
(C) Liens.......................................................................... 76
(D) Investments.................................................................... 76
(E) Contingent Obligations......................................................... 77
(F) Conduct of Business; Subsidiaries; Permitted Acquisitions...................... 77
(G) Transactions with Shareholders and Affiliates.................................. 79
(H) Restriction on Fundamental Changes............................................. 79
(I) Sales and Leasebacks........................................................... 79
(J) Margin Regulations............................................................. 79
(K) ERISA.......................................................................... 79
(L) Corporate Documents............................................................ 80
(M) Fiscal Year.................................................................... 80
(N) Subsidiary Covenants........................................................... 80
(O) Hedging Obligations............................................................ 80
(P) Issuance of Disqualified Stock................................................. 80
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v
(Q) Non-Guarantor Subsidiaries..................................................... 80
(R) Intercompany Indebtedness...................................................... 81
(S) Letters of Credit.............................................................. 81
7.4. Financial Covenants................................................................... 81
(A) Maximum Leverage Ratio......................................................... 81
(B) Minimum Fixed Charge Coverage Ratio............................................ 81
(C) Minimum Interest Expense Coverage Ratio........................................ 82
(D) Minimum Consolidated Net Worth................................................. 82
ARTICLE VIII: DEFAULTS............................................................................ 83
8.1. Defaults.............................................................................. 83
(A) Failure to Make Payments When Due.............................................. 83
(B) Breach of Certain Covenants.................................................... 83
(C) Breach of Representation or Warranty........................................... 83
(D) Other Defaults................................................................. 83
(E) Default as to Other Indebtedness............................................... 83
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc........................... 84
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc............................. 84
(H) Judgments and Attachments...................................................... 84
(I) Dissolution.................................................................... 85
(J) Loan Documents................................................................. 85
(K) Termination Event.............................................................. 85
(L) Waiver of Minimum Funding Standard............................................. 85
(M) Change of Control.............................................................. 85
(N) Environmental Matters.......................................................... 85
(O) Guarantor Revocation........................................................... 85
ARTICLE IX: ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES........................................ 86
9.1. Termination of Commitments; Acceleration.............................................. 86
9.2. Amendments............................................................................ 86
9.3. Preservation of Rights................................................................ 87
ARTICLE X: GUARANTY............................................................................... 87
10.1. Guaranty.............................................................................. 87
10.2. Waivers; Subordination of Subrogation................................................. 88
10.3. Guaranty Absolute..................................................................... 88
10.4. Acceleration.......................................................................... 89
10.5. Marshaling; Reinstatement............................................................. 89
10.6. Termination Date...................................................................... 90
ARTICLE XI: GENERAL PROVISIONS.................................................................... 90
11.1. Survival of Representations........................................................... 90
11.2. Governmental Regulation............................................................... 90
11.3. Performance of Obligations............................................................ 90
11.4. Headings.............................................................................. 91
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vi
11.5. Entire Agreement...................................................................... 91
11.6. Several Obligations; Benefits of this Agreement....................................... 91
11.7. Expenses; Indemnification............................................................. 91
(A) Expenses....................................................................... 91
(B) Indemnity...................................................................... 92
(C) Waiver of Certain Claims; Settlement of Claims................................. 93
(D) Survival of Agreements......................................................... 93
11.8. Numbers of Documents.................................................................. 93
11.9. Accounting............................................................................ 93
11.10. Severability of Provisions............................................................ 94
11.11. Nonliability of Lenders............................................................... 94
11.12. GOVERNING LAW......................................................................... 94
11.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL............................... 94
(A) EXCLUSIVE JURISDICTION......................................................... 94
(B) OTHER JURISDICTIONS............................................................ 94
(C) VENUE.......................................................................... 95
(D) SERVICE OF PROCESS............................................................. 95
(E) WAIVER OF JURY TRIAL........................................................... 95
(F) ADVICE OF COUNSEL.............................................................. 95
11.14. Other Transactions.................................................................... 96
11.15. Subordination of Intercompany Indebtedness............................................ 96
11.16. Lender's Not Utilizing Plan Assets.................................................... 97
11.17. Collateral............................................................................ 97
ARTICLE XII: THE ADMINISTRATIVE AGENT............................................................. 97
12.1. Appointment; Nature of Relationship................................................... 97
12.2. Powers................................................................................ 98
12.3. General Immunity...................................................................... 98
12.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc.......................... 98
12.5. Action on Instructions of Lenders..................................................... 98
12.6. Employment of Agents and Counsel...................................................... 99
12.7. Reliance on Documents; Counsel........................................................ 99
12.8. The Administrative Agent's Reimbursement and Indemnification.......................... 99
12.9. Rights as a Lender.................................................................... 99
12.10. Lender Credit Decision................................................................ 99
12.11. Successor Administrative Agent........................................................ 100
12.12. Documentation Agent, Syndication Agent, and Arranger.................................. 100
ARTICLE XIII: SETOFF; RATABLE PAYMENTS............................................................ 100
13.1. Setoff................................................................................ 100
13.2. Ratable Payments...................................................................... 100
13.3. Application of Payments............................................................... 101
13.4. Relations Among Lenders............................................................... 102
(A) No Action Without Consent...................................................... 102
(B) Not Partners; No Liability..................................................... 000
Xxxxxx Xxxxxx Xxxxx & Xxxx
vii
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................................... 102
14.1. Successors and Assigns................................................................ 102
14.2. Participations........................................................................ 103
(A) Permitted Participants; Effect................................................. 103
(B) Voting Rights.................................................................. 103
(C) Benefit of Setoff.............................................................. 103
14.3. Assignments........................................................................... 104
(A) Permitted Assignments.......................................................... 104
(B) Effect; Effective Date......................................................... 104
(C) The Register................................................................... 105
(D) Designated Lender.............................................................. 105
14.4. Confidentiality....................................................................... 106
14.5. Dissemination of Information.......................................................... 107
ARTICLE XV: NOTICES............................................................................... 107
15.1. Giving Notice......................................................................... 107
15.2. Change of Address..................................................................... 107
ARTICLE XVI:COUNTERPARTS.......................................................................... 000
Xxxxxx Xxxxxx Xxxxx & Xxxx
viii
EXHIBITS AND SCHEDULES
Exhibits
EXHIBIT A -- Commitments (Definitions)
EXHIBIT B -- Form of Borrowing/Election Notice (Section 2.2 and Section
2.7 and Section 2.9)
EXHIBIT C -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT D -- Form of Assignment and Acceptance Agreement (Sections 2.19
and 14.3)
EXHIBIT E -- Form of Company's US Counsel's Opinion (Section 5.1)
EXHIBIT E-1 -- Form of Company's Foreign Counsel's Opinion (Section 5.1)
EXHIBIT E-2 -- Form of Counsel's Opinion for Subsidiary Borrowers
EXHIBIT F -- Form of Officer's Certificate (Sections 5.3 and
7.1(A)(iii))
EXHIBIT G -- Form of Compliance Certificate (Sections 5.3 and
7.1(A)(iii))
EXHIBIT H -- Form of Subsidiary Guaranty (Definitions)
EXHIBIT I -- Form of Revolving Loan Note
EXHIBIT J -- Form of Assumption Letter (Definitions)
EXHIBIT K -- Form of Designation Agreement (Section 14.3(D))
EXHIBIT L -- Form of Commitment and Acceptance (Section 2.5(C)(i))
Schedules
Schedule 1.1.1 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.2 -- Permitted Existing Investments (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 1.1.4 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.5 -- Material Subsidiaries and Foreign Subsidiaries that are
not Excluded Foreign Subsidiaries
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 6.4 -- Pro Forma Financial Statements (Section 6.4(A))
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.17 -- Environmental Matters (Section 6.17)
Schedule 7.3(N) -- Subsidiary Covenants (Section 7.3(N))
Sidley Xxxxxx Xxxxx & Xxxx
ix
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement dated as of
August 19, 2002 is entered into among Chicago Bridge & Iron Company N.V., a
corporation organized under the laws of The Kingdom of the Netherlands (the
"Company"), and one or more Subsidiaries of the Company (whether now existing or
hereafter formed collectively referred to herein as the "Subsidiary Borrowers"),
the institutions from time to time parties hereto as Lenders, whether by
execution of this Agreement or an Assignment Agreement pursuant to Section 14.3,
and Bank One, NA, in its capacity as contractual representative (the
"Administrative Agent") for itself and the other Lenders, to amend and restate
that certain Amended and Restated Credit Agreement, dated as of August 29, 2001,
by and among the Company, the Subsidiary Borrowers parties thereto, the Lenders
party thereto and Bank One, NA, as administrative agent (as amended, the
"Existing Credit Agreement"), and, from and after the Effective Date, the
Existing Credit Agreement is hereby amended and restated in its entirety. The
parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1. Certain Defined Terms. In addition to the terms defined
above, the following terms used in this Agreement shall have the following
meanings, applicable both to the singular and the plural forms of the terms
defined as used in this Agreement:
"Accounting Change" is defined in Section 11.9.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person, firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding Equity Interests of another Person.
"Administrative Agent" means Bank One in its capacity as
contractual representative for itself and the Lenders pursuant to Article XII
hereof and any successor Administrative Agent appointed pursuant to Article XII
hereof.
"Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Loans made by some or all of the Lenders to the
applicable Borrower of the same Type and, in the case of Eurodollar Rate
Advances for the same Interest Period.
"Affected Lender" is defined in Section 2.19.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person is
the "beneficial owner" (as defined in Rule
Sidley Xxxxxx Xxxxx & Xxxx
1
13d-3 under the Securities Exchange Act of 1934) of greater than ten percent
(10.0%) or more of any class of voting securities (or other voting interests) of
the controlled Person or possesses, directly or indirectly, the power to direct
or cause the direction of the management or policies of the controlled Person,
whether through ownership of Capital Stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments
of all the Lenders, as may be adjusted from time to time pursuant to the terms
hereof. The Aggregate Commitment as of the Effective Date is One Hundred
Twenty-Five Million and 00/100 Dollars ($125,000,000).
"Agreed Currencies" means (i) Dollars and (ii) any other
Eligible Agreed Currency which the applicable Borrower requests the applicable
Issuing Bank to include as an Agreed Currency hereunder and which is acceptable
to such Issuing Bank and the Administrative Agent. For purposes of this
definition, "Eligible Agreed Currency" means any currency other than Dollars (i)
that is readily available, (ii) that is freely traded, (iii) in which deposits
are customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated.
"Agreement" means this Second Amended and Restated Credit
Agreement, as it may be amended, restated or otherwise modified and in effect
from time to time.
"Agreement Accounting Principles" means generally accepted
accounting principles as in effect in the United States from time to time,
applied in a manner consistent with that used in preparing the financial
statements of the Company referred to in Section 6.4(B) hereof; provided,
however, except as provided in Section 11.9, that with respect to the
calculation of financial ratios and other financial tests required by this
Agreement, "Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial
statements of the Company referred to in Section 6.4(B) hereof.
"Alternate Base Rate" means, for any day, a fluctuating rate
of interest per annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b)
one-half of one percent (0.5%) per annum.
"Applicable Commitment Fee Percentage" means, as at any date
of determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.14(C)(i) hereof determined in accordance with the
provisions of Section 2.14(D)(ii) hereof.
"Applicable Eurodollar Margin" means, as at any date of
determination, the rate per annum then applicable to Eurodollar Rate Loans
determined in accordance with the provisions of Section 2.14(D)(ii) hereof.
"Applicable Floating Rate Margins" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans,
determined in accordance with the provisions of Section 2.14(D)(ii) hereof.
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2
"Applicable L/C Fee Percentage" means, as at any date of
determination, (x) with respect to Performance Letters of Credit, the rate per
annum then applicable to Performance Letters of Credit, and (y) with respect to
Standby Letters of Credit, the rate per annum then applicable to Standby Letters
of Credit, in each case determined in accordance with the provisions of Section
2.14(D)(ii).
"Arranger" means Banc One Capital Markets, Inc., in its
capacity as the arranger for the loan transaction evidenced by this Agreement.
"Asset Sale" means, with respect to any Person, the sale,
lease, conveyance, disposition or other transfer by such Person of any of its
assets (including by way of a sale-leaseback transaction, and including the sale
or other transfer of any of the Equity Interests of any Subsidiary of such
Person, but not the Equity Interests of such Person) to any Person other than
the Company or any of its wholly-owned Subsidiaries other than (i) the sale of
inventory in the ordinary course of business and (ii) the sale or other
disposition of any obsolete equipment disposed of in the ordinary course of
business.
"Assignment Agreement" means an assignment and acceptance
agreement entered into in connection with an assignment pursuant to Section 14.3
hereof in substantially the form of Exhibit D.
"Assumption Letter" means a letter of a Subsidiary of the
Company addressed to the Lenders in substantially the form of Exhibit J hereto
pursuant to which such Subsidiary agrees to become a "Subsidiary Borrower" and
agrees to be bound by the terms and conditions hereof.
"Authorized Officer" means the Managing Director of the
Company, or such other Person as authorized by the Managing Director, acting
singly; provided, that the Administrative Agent shall have received a manually
signed certificate of the Secretary of the Company as to the incumbency of, and
bearing a manual specimen signature of, such duly authorized Person.
"Bank One" means Bank One, NA, having its principal office in
Chicago, Illinois, in its individual capacity, and its successors.
"Benefit Plan" means a defined benefit plan as defined in
Section 3(35) of ERISA (other than a Multiemployer Plan or Foreign Pension Plan)
in respect of which the Company or any other member of the Controlled Group is,
or within the immediately preceding six (6) years was, an "employer" as defined
in Section 3(5) of ERISA.
"Borrower" means, as applicable, any of the Company and the
Subsidiary Borrowers, together with their permitted respective successors and
assigns; and "Borrowers" shall mean, collectively, the Company and the
Subsidiary Borrowers.
"Borrowing Date" means a date on which an Advance or Swing
Line Loan is made hereunder.
"Borrowing/Election Notice" is defined in Section 2.7.
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3
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Loans bearing interest at the Eurodollar Rate, a
day (other than a Saturday or Sunday) on which banks are open for business in
Chicago, Illinois and New York, New York and on which dealings in Dollars and
the other Agreed Currencies are carried on in the London interbank market (and,
if the Letter of Credit which is the subject of such issuance or payment is
denominated in euro, a day upon which such clearing system as is determined by
the Administrative Agent to be suitable for clearing or settlement of the euro
is open for business) and (ii) for all other purposes a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York.
"Buying Lender" is defined in Section 2.5(C)(ii).
"Capital Expenditures" means, for any period, without
duplication, any expenditures (whether paid in cash or accrued as liabilities
and including Capitalized Leases and purchase money indebtedness) for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (i) expenditures of insurance proceeds to rebuild or replace any asset
after a casualty loss, (ii) leasehold improvement expenditures for which the
Company or a Subsidiary is reimbursed promptly by the lessor and (iii) up to
$6,000,000 of purchases of equipment in the ordinary course of business to the
extent the amount of such purchases is not in excess of the proceeds of sales
during the preceding 12 months of equipment no longer required in connection
with existing or completed projects.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Capitalized Lease" of a Person means any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which would be
capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalents" means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States government and backed
by the full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by S&P or A3 (or better) by Xxxxx'x, and which certificates of deposit
and time deposits are fully protected against currency
Sidley Xxxxxx Xxxxx & Xxxx
4
fluctuations for any such deposits with a term of more than ninety (90) days;
(iii) shares of money market, mutual or similar funds having assets in excess of
$100,000,000 and the investments of which are limited to (x) investment grade
securities (i.e., securities rated at least Baa by Xxxxx'x or at least BBB by
S&P) and (y) commercial paper of United States and foreign banks and bank
holding companies and their subsidiaries and United States and foreign finance,
commercial industrial or utility companies which, at the time of acquisition,
are rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx'x (all such
institutions being, "Qualified Institutions"); and (iv) commercial paper of
Qualified Institutions; provided that the maturities of such Cash Equivalents
shall not exceed three hundred sixty-five (365) days from the date of
acquisition thereof.
"Change" is defined in Section 4.2.
"Change of Control" means an event or series of events by
which:
(i) other than pursuant to the H-B Acquisition and the PDM
Acquisition, any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934) becomes the "beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934), directly or
indirectly, of twenty percent (20%) or more of the voting power
of the then outstanding Capital Stock of the Company entitled to
vote generally in the election of the directors of the Company;
or
(ii) the majority of the board of directors of the Company
fails to consist of Continuing Directors;
(iii) except as expressly permitted under the terms of this
Agreement, the Company or any Subsidiary Borrower consolidates
with or merges into another Person or conveys, transfers or
leases all or substantially all of its property to any Person, or
any Person consolidates with or merges into the Company or any
Subsidiary Borrower, in either event pursuant to a transaction in
which the outstanding Capital Stock of the Company or such
Subsidiary Borrower, as applicable, is reclassified or changed
into or exchanged for cash, securities or other property; or
(iv) except as otherwise expressly permitted under the terms
of this Agreement, the Company shall cease to own and control all
of the economic and voting rights associated with all of the
outstanding Capital Stock of each of the Subsidiary Guarantors or
shall cease to have the power, directly or indirectly, to elect
all of the members of the board of directors of each of the
Subsidiary Guarantors.
"Closing Date" means August 29, 2001, which date is the date
the Existing Credit Agreement became effective.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
Sidley Xxxxxx Xxxxx & Xxxx
5
"Commission" means the Securities and Exchange Commission of
the United States of America and any Person succeeding to the functions thereof.
"Commitment" means, for each Lender, the obligation of such
Lender to make Revolving Loans and to purchase participations in Letters of
Credit and to participate in Swing Line Loans not exceeding the amount set forth
on Exhibit A to this Agreement opposite its name thereon under the heading
"Commitment" or in the Assignment Agreement by which it became a Lender, as such
amount may be modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable Assignment Agreement.
"Commitment Increase Notice" is defined in Section 2.5(C)(i).
"Company" means Chicago Bridge & Iron Company N.V., a
corporation organized under the laws of The Kingdom of the Netherlands.
"Computation Date" is defined in Section 2.4(B).
"Consolidated Net Worth" means, at a particular date, all
amounts which would be included under shareholders' or members' equity on the
consolidated balance sheet for the Company and its consolidated Subsidiaries
plus any preferred stock of the Company to the extent that it has not been
redeemed for indebtedness, as determined in accordance with Agreement Accounting
Principles.
"Contaminant" means any waste, pollutant, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBs"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"Contingent Obligation", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the present value of the portion of the
obligation so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"Continuing Director" means, with respect to any person as of
any date of determination, any member of the board of directors of such Person
who (a) was a member of
Sidley Xxxxxx Xxxxx & Xxxx
6
such board of directors on the Closing Date, or (b) was nominated for election
or elected to such board of directors with the approval of the required majority
of the Continuing Directors who were members of such board at the time of such
nomination or election; provided that an individual who is so elected or
nominated in connection with a merger, consolidation, acquisition or similar
transaction shall not be a Continuing Director unless such individual was a
Continuing Director prior thereto.
"Contractual Obligation", as applied to any Person, means any
provision of any equity or debt securities issued by that Person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guaranty, contract, undertaking, agreement or instrument, in any case in
writing, to which that Person is a party or by which it or any of its properties
is bound, or to which it or any of its properties is subject.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Controlled Group" means the group consisting of (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code) as the Company; (ii) a
partnership or other trade or business (whether or not incorporated) which is
under common control (within the meaning of Section 414(c) of the Code) with the
Company; and (iii) a member of the same affiliated service group (within the
meaning of Section 414(m) of the Code) as the Company, any corporation described
in clause (i) above or any partnership or trade or business described in clause
(ii) above.
"Country Risk Event" means:
(i) any law, action or failure to act by any Governmental
Authority in the applicable Borrower's or Letter of Credit
beneficiary's country which has the effect of:
(a) changing the Obligations as originally agreed,
(b) changing the ownership or control by the applicable
Borrower or Letter of Credit beneficiary of its business, or
(c) preventing or restricting the conversion into or
transfer of the applicable Agreed Currency;
(ii) force majeure; and
(iii) any similar event
which, in relation to (i), (ii) and (iii), directly or indirectly, prevents or
restricts the payment or transfer of any amounts owing under the Obligations in
the applicable Agreed Currency into an account designated by the Administrative
Agent or applicable Issuing Bank and freely available to the Administrative
Agent or such Issuing Bank.
Sidley Xxxxxx Xxxxx & Xxxx
7
"Customary Permitted Liens" means:
(i) Liens (other than Environmental Liens and Liens in
favor of the IRS or the PBGC) with respect to the payment of
taxes, assessments or governmental charges in all cases which are
not yet due or (if foreclosure, distraint, sale or other similar
proceedings shall not have been commenced or any such proceeding
after being commenced is stayed) which are being contested in
good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves
or other appropriate provisions are being maintained in
accordance with Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen, service providers
or workmen and other similar Liens imposed by law created in the
ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and with respect to which
adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in
favor of the IRS or the PBGC) incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders,
sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; provided that (A)
all such Liens do not in the aggregate materially detract from
the value of the Company's or its Subsidiary's assets or property
taken as a whole or materially impair the use thereof in the
operation of the businesses taken as a whole, and (B) all Liens
securing bonds to stay judgments or in connection with appeals do
not secure at any time an aggregate amount exceeding $5,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the
value of the property subject thereto or interfere with the
ordinary conduct of the business of the Company or any of its
respective Subsidiaries;
(v) Liens of attachment or judgment with respect to
judgments, writs or warrants of attachment, or similar process
against the Company or any of its Subsidiaries which do not
constitute a Default under Section 8.1(H) hereof; and
(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Company or any
of its Subsidiaries in the ordinary course of business.
"Default" means an event described in Article VIII hereof.
Sidley Xxxxxx Xxxxx & Xxxx
8
"Designated Lender" means, with respect to each Designating
Lender, each Eligible Designee designated by such Designating Lender pursuant to
Section 14.3(D).
"Designating Lender" means, with respect to each Designated
Lender, the Lender that designated such Designated Lender pursuant to Section
14.3(D).
"Designation Agreement" is defined in Section 14.3(D).
"Disclosed Litigation" is defined in Section 6.7.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is ninety-one (91) days after the Termination Date.
"DOL" means the United States Department of Labor and any
Person succeeding to the functions thereof.
"Dollar" and "$" means dollars in the lawful currency of the
United States of America.
"Dollar Amount" of any currency at any date shall mean (i) the
amount of such currency if such currency is Dollars or (ii) the equivalent in
such currency of such amount of Dollars if such currency is any currency other
than Dollars, calculated on the basis of the arithmetical mean of the buy and
sell spot rates of exchange of the Administrative Agent for such currency on the
London market at 11:00 a.m., London time, on or as of the most recent
Computation Date provided for in Section 2.4(B).
"Domestic Subsidiary" means a Subsidiary of the Company
organized under the laws of a jurisdiction located in the United States of
America and substantially all of the operations of which are conducted within
the United States.
"EBIT" means, for any period, on a consolidated basis for the
Company and its Subsidiaries, the sum of the amounts for such period, without
duplication, calculated in each case in accordance with Agreement Accounting
Principles, of (i) Net Income, plus (ii) Interest Expense to the extent deducted
in computing Net Income, plus (iii) charges against income for foreign, federal,
state and local taxes to the extent deducted in computing Net Income, plus (iv)
any other non-recurring non-cash charges to the extent deducted in computing Net
Income, minus (v) any non-recurring non-cash credits to the extent added in
computing Net Income, plus (vi) non-recurring after-tax losses (or minus
non-recurring after-tax gains); provided, that for any date of determination
from and after January 1, 2001, the aggregate adjustment pursuant to clauses
(iv) through (vi) of this definition shall not exceed $3,000,000 for the
four-quarter period ending on such date (exclusive of any such adjustments for
periods ending prior to January 1, 2001).
"EBITDA" means, for any period, on a consolidated basis for
the Company and its Subsidiaries, the sum of the amounts for such period,
without duplication, calculated in each
Sidley Xxxxxx Xxxxx & Xxxx
9
case in accordance with Agreement Accounting Principles, of (i) EBIT plus (ii)
depreciation expense to the extent deducted in computing Net Income, plus (iii)
amortization expense, including, without limitation, amortization of goodwill
and other intangible assets to the extent deducted in computing Net Income.
"Effective Commitment Amount" is defined in Section 2.5(C)(i).
"Effective Date" means August [ ], 2002.
"Eligible Assignee" means a Person that is primarily engaged
in the business of commercial banking and that (A) is an affiliate of a Lender
or (B) shall have senior unsecured long-term debt ratings which are rated at
least BBB (or the equivalent) as publicly announced by S&P or Fitch Investors
Services, Inc. or Baa2 (or the equivalent) as publicly announced by Moody's, or
shall otherwise be reasonably acceptable to the Administrative Agent and the
Issuing Banks.
"Eligible Cash Equivalents" means Cash Equivalents consisting
of (i) marketable direct obligations issued or unconditionally guaranteed by the
United States government and backed by the full faith and credit of the United
States government, (ii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or
agencies, the long-term indebtedness of which institution at the time of
acquisition is rated A- (or better) by S&P or A3 (or better) by Moody's, and
which certificates of deposit and time deposits are fully protected against
currency fluctuations for any such deposits with a term of more than ninety (90)
days, (iii) commercial paper rated at least A-1 by Standard & Poor's Ratings
Services or P-1 by Xxxxx'x Investors Service, Inc. and maturing not more than
thirty (30) days from the date of issuance or (iv) debt securities other than
commercial paper, the issuer of which shall have a senior unsecured long-term
debt rating from Standard & Poor's Ratings Services of at least A and which debt
securities shall mature not more than thirty (30) days from the date of
issuance.
"Eligible Designee" means a special purpose corporation,
partnership, limited partnership or limited liability company that is
administered by a Lender or an Affiliate of a Lender and (i) is organized under
the laws of the United States of America or any state thereof, (ii) is engaged
primarily in making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business and (iii) issues (or the parent of which
issues) commercial paper rated at least A-1 or the equivalent thereof by S&P or
the equivalent thereof by Moody's.
"EMU" means Economic and Monetary Union as contemplated in the
Treaty on European Union.
"Environmental, Health or Safety Requirements of Law" means
all Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq., the Occupational Safety and Health Act of
1970, 29 U.S.C. Section 651 et seq., and the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Section
Sidley Xxxxxx Xxxxx & Xxxx
10
6901 et seq., in each case including any amendments thereto, any successor
statutes, and any regulations or guidance promulgated thereunder, and any state
or local equivalent thereof.
"Environmental Lien" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock). Equity
Interests will not include any Incentive Arrangements or obligations or payments
thereunder.
"Equivalent Amount" of any currency with respect to any amount
of Dollars at any date shall mean the equivalent in such currency of such amount
of Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, on the date on or as of which such amount is to be
determined.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time including (unless the context otherwise
requires) any rules or regulations promulgated thereunder.
"euro" and/or "EUR" means the euro referred to in Council
Regulation (EC) No. 1103/97 dated June 17, 1997 passed by the Council of the
European Union, or, if different, the then lawful currency of the member states
of the European Union that participate in the third stage of EMU.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Rate Advance for the relevant Interest Period, the applicable British Bankers'
Association Interest Settlement Rate for deposits in Dollars appearing on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen FRBD is not available to
the Administrative Agent for any reason, the applicable Eurodollar Reference
Rate for the relevant Interest Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in Dollars as
reported by any other generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, and (ii)
if no such British Bankers' Association Interest Settlement Rate is available,
the applicable Eurodollar Reference Rate for the relevant Interest Period shall
instead be the rate determined by the Administrative Agent to be the rate at
which Bank One offers to place deposits in Dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, in the approximate amount
of Bank One's relevant Eurodollar Loan and having a maturity equal to such
Interest Period.
"Eurodollar Rate" means, with respect to a Eurodollar Rate
Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to
Sidley Xxxxxx Xxxxx & Xxxx
11
such Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Interest Period, plus (ii) the then
Applicable Eurodollar Margin, changing as and when the Applicable Eurodollar
Margin changes.
"Eurodollar Rate Advance" means an Advance which bears
interest at a Eurodollar Rate.
"Eurodollar Rate Loan" means a Loan made on a fully syndicated
basis pursuant to Section 2.1, which bears interest at a Eurodollar Rate.
"Excluded Foreign Subsidiary" means any Foreign Subsidiary
other than those listed as Foreign Subsidiaries on Schedule 1.1.5.
"Extension Request" is defined in Section 2.22.
"Facility Termination Date" shall mean the date on which all
of the Termination Conditions have been satisfied.
"Federal Funds Effective Rate" means, for any day, an interest
rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such day is
not a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations at approximately 10:00 a.m.
(Chicago time) on such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Officer" means any of the chief financial officer,
principal accounting officer, treasurer or controller of the Company, acting
singly.
"Financing" means, with respect to any Person, the issuance or
sale by such Person of any Disqualified Stock, Equity Interests of such Person
or any Indebtedness consisting of debt securities of such Person.
"Fixed Charge Coverage Ratio" is defined in Section 7.4(B).
"Floating Rate" means, for any day for any Loan, a rate per
annum equal to the Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes, plus the then Applicable Floating Rate Margin.
"Floating Rate Advance" means an Advance which bears interest
at the Floating Rate.
"Floating Rate Loan" means a Loan, or portion thereof, which
bears interest at the Floating Rate.
"Foreign Employee Benefit Plan" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or contributed to
for the benefit of the employees of
Sidley Xxxxxx Xxxxx & Xxxx
12
the Company, any of its respective Subsidiaries or any members of its Controlled
Group and is not covered by ERISA pursuant to ERISA Section 4(b)(4).
"Foreign Pension Plan" means any employee benefit plan as
described in Section 3(3) of ERISA for which the Company or any member of its
Controlled Group is a sponsor or administrator and which (i) is maintained or
contributed to for the benefit of employees of the Company, any of its
respective Subsidiaries or any member of its Controlled Group, (ii) is not
covered by ERISA pursuant to Section 4(b)(4) of ERISA, and (iii) under
applicable local law, is required to be funded through a trust or other funding
vehicle.
"Foreign Subsidiary" means a Subsidiary of the Company which
is not a Domestic Subsidiary.
"Governmental Acts" is defined in Section 3.10(A).
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
authority or functions of or pertaining to government, including any authority
or other quasi-governmental entity established to perform any of such functions.
"Gross Negligence" means recklessness, or actions taken or
omitted with conscious indifference to or the complete disregard of consequences
or rights of others affected. Gross Negligence does not mean the absence of
ordinary care or diligence, or an inadvertent act or inadvertent failure to act.
If the term "gross negligence" is used with respect to the Administrative Agent
or any Lender or any indemnitee in any of the other Loan Documents, it shall
have the meaning set forth herein.
"Guaranteed Obligations" is defined in Section 10.1.
"Guarantor(s)" shall mean the Company and the Subsidiary
Guarantors.
"Guaranty" means each of (i) the guaranty by the Company and
each Subsidiary Borrower of all of the Obligations of Company and the Subsidiary
Borrowers pursuant to this Agreement and (ii) the Subsidiary Guaranty, in each
case, as amended, restated, supplemented or otherwise modified from time to
time.
"H-B Acquisition" means the acquisition by the Company of all
of the issued and outstanding Capital Stock of Xxxx-Xxxxx for consideration
including (i) a cash purchase price of up to $28,000,000, (ii) assumed
indebtedness of up to $5,700,000, (iii) the issuance of 8,100,000 shares of
Capital Stock of the Company, and otherwise on terms consistent in all material
respects with the terms disclosed to the Administrative Agent and set forth in
the H-B Acquisition Agreement.
"H-B Acquisition Agreement" means that certain Purchase
Agreement, dated as of July 30, 2000, by and between WEDGE Group Incorporated, a
Delaware corporation, and WGI Tyler, Inc. a Delaware corporation, collectively
as the seller, and the Company and CB&I
Sidley Xxxxxx Xxxxx & Xxxx
13
TylerCompany, a Delaware corporation, collectively as the buyer, as delivered to
the Administrative Agent on November 16, 2000.
"Hedging Arrangements" is defined in the definition of Hedging
Obligations below.
"Hedging Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i) any
and all agreements, devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants or any similar derivative
transactions ("Hedging Arrangements"), and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any of the foregoing.
"Xxxx-Xxxxx" means Xxxx-Xxxxx International, Inc., a Delaware
corporation.
"Incentive Arrangements" means any stock ownership, restricted
stock, stock option, stock appreciation rights, "phantom" stock plans,
employment agreements, non-competition agreements, subscription and stockholders
agreements and other incentive and bonus plans and similar arrangements made in
connection with the retention of executives, officers or employees of the
Company and its Subsidiaries.
"Indebtedness" of a Person means, without duplication, such
Person's (a) obligations for borrowed money (including, without limitation,
subordinated indebtedness and all assumed indebtedness of the Company evidenced
by the $5,700,000 term indebtedness issued by Xxxx-Xxxxx in favor of Air
Liquide), (b) obligations representing the deferred purchase price of property
or services (other than (i) accounts payable arising in the ordinary course of
such Person's business payable on terms customary in the trade, and (ii)
earnouts or other similar forms of contingent purchase prices), (c) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from property or assets now or hereafter owned or acquired by such
Person, (d) obligations which are evidenced by notes, acceptances, other
instruments, standby letters of credit or standby letter of credit reimbursement
arrangements, (e) Capitalized Lease Obligations, (f) Contingent Obligations, (g)
obligations with respect to letters of credit, (h) Off-Balance Sheet Liabilities
and (j) Disqualified Stock.
"Indebtedness for Borrowed Money" means, without duplication,
the sum of (x) Indebtedness of the Company and its Subsidiaries described in
clauses (a) of the definition of "Indebtedness", plus (y) standby letters of
credit, and reimbursement agreements in respect of standby letters of credit,
issued for the account of the Company or any of its Subsidiaries to support
Indebtedness of any Person (other than the Company or any of its Subsidiaries),
plus (z) all Disqualified Stock.
"Indemnified Matters" is defined in Section 11.7(B).
Sidley Xxxxxx Xxxxx & Xxxx
14
"Indemnitees" is defined in Section 11.7(B).
"Interest Expense" means, for any period, the total gross
interest expense of the Company and its consolidated Subsidiaries, whether paid
or accrued, including, without duplication, the interest component of
Capitalized Leases, commitment and letter of credit fees, the discount or
implied interest component of Off-Balance Sheet Liabilities, capitalized
interest expense, pay-in-kind interest expense, amortization of debt documents
and net payments (if any) pursuant to Hedging Arrangements relating to interest
rate protection, all as determined in conformity with Agreement Accounting
Principles.
"Interest Expense Coverage Ratio" is defined in Section
7.4(C).
"Interest Period" means with respect to a Eurodollar Rate
Loan, a period of one (1), two (2), three (3) months or six (6) months,
commencing on a Business Day selected by the applicable Borrower on which a
Eurodollar Rate Advance is made to such Borrower pursuant to this Agreement.
Such Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter; provided,
however, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
"Investment" means, with respect to any Person, (i) any
purchase or other acquisition by that Person of any Indebtedness, Equity
Interests or other securities, or of a beneficial interest in any Indebtedness,
Equity Interests or other securities, issued by any other Person, (ii) any
purchase by that Person of all or substantially all of the assets of a business
(whether of a division, branch, unit operation, or otherwise) conducted by
another Person; (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business; and
(iv) any non-arms length transaction by such Person with another Person or any
other transfer of assets by such Person in another Person, with the amount of
such Investment being an amount equal to the net benefit derived by such other
Person resulting from any such transactions.
"IRS" means the Internal Revenue Service and any Person
succeeding to the functions thereof.
"Issuing Banks" means Bank One or any of its Affiliates or any
of the other Lenders in its separate capacity as an issuer of Letters of Credit
pursuant to Section 3.1. The designation of any Lender as an Issuing Bank after
the Closing Date shall be subject to the prior written consent of the
Administrative Agent.
"L/C Documents" is defined in Section 3.4.
Sidley Xxxxxx Xxxxx & Xxxx
15
"L/C Draft" means a draft drawn on an Issuing Bank pursuant to
a Letter of Credit.
"L/C Interest" is defined in Section 3.6.
"L/C Obligations" means, without duplication, an amount equal
to the sum of (i) the aggregate of the Dollar Amount then available for drawing
under each of the Letters of Credit, (ii) the Dollar Amount equal to the stated
amount of all outstanding L/C Drafts corresponding to the Letters of Credit,
which L/C Drafts have been accepted by the applicable Issuing Bank, (iii) the
aggregate outstanding Dollar Amount of all Reimbursement Obligations at such
time and (iv) the aggregate Dollar Amount equal to the stated amount of all
Letters of Credit requested by the Borrowers but not yet issued (unless the
request for an unissued Letter of Credit has been denied).
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors and assigns.
"Lender Increase Notice" is defined in Section 2.5(C)(i).
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent listed on the signature pages of this Agreement for
such Lender, or on the administrative information sheets provided to the
Administrative Agent in connection herewith or otherwise selected by such Lender
or the Administrative Agent pursuant to Section 2.16.
"Letter of Credit" means the performance letters of credit and
standby letters of credit to be (a) issued by the Issuing Banks pursuant to
Section 3.1 hereof or (b) deemed issued by the Issuing Banks pursuant to Section
3.2 hereof.
"Leverage Ratio" is defined in Section 7.4(A).
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan Account" is defined in Section 2.12(A).
"Loan Documents" means this Agreement, each Assumption Letter
executed hereunder, the Subsidiary Guaranty and all other documents,
instruments, notes and agreements executed in connection therewith or
contemplated thereby, as the same may be amended, restated or otherwise modified
and in effect from time to time.
"Loan Parties" means, at any time, the Company, each
Subsidiary Borrower that is a party hereto as of such time and each of the
Guarantors.
Sidley Xxxxxx Xxxxx & Xxxx
16
"Loan(s)" means, with respect to a Lender, such Lender's
portion of any Advance made pursuant to Section 2.1 hereof, and in the case of
the Swing Line Bank, any Swing Line Loan made pursuant to Section 2.2 hereof,
and collectively all Revolving Loans and Swing Line Loans, whether made or
continued as or converted to Floating Rate Loans or Eurodollar Rate Loans.
"Margin Stock" shall have the meaning ascribed to such term in
Regulation U.
"Market Disruption" is defined in Section 2.11.
"Material Adverse Effect" means a material adverse effect upon
(a) the business, condition (financial or otherwise), operations, performance,
properties, results of operations or prospects of the Company, any other
Borrower, or the Company and its Subsidiaries, taken as a whole, (b) the
collective ability of the Company or any of its Subsidiaries to perform their
respective obligations under the Loan Documents, or (c) the ability of the
Lenders or the Administrative Agent to enforce the Obligations.
"Material Subsidiary" means, without duplication, (a) each
Borrowing Subsidiary and (b) any Subsidiary that directly or indirectly owns or
Controls any Borrowing Subsidiary or other Material Subsidiary and (c) any other
Subsidiary (i) the consolidated net revenues of which for the most recent fiscal
year of the Company for which audited financial statements have been delivered
pursuant to Section 7.01(A)(ii) were greater than three percent 3% of the
Company's consolidated net revenues for such fiscal year or (ii) the
consolidated tangible assets of which as of the end of such fiscal year were
greater than three percent 3% of the Company's consolidated tangible assets as
of such date; provided that, if at any time the aggregate amount of the
consolidated net revenues or consolidated tangible assets of all Subsidiaries
that are not Material Subsidiaries exceeds ten percent 10% of the Company's
consolidated net revenues for any such fiscal year or ten percent 10% of the
Company's consolidated tangible assets as of the end of any such fiscal year,
the Company (or, in the event the Company has failed to do so within 10 days,
the Administrative Agent) shall designate sufficient Subsidiaries as "Material
Subsidiaries" to eliminate such excess, and such designated Subsidiaries shall
for all purposes of this Agreement constitute Material Subsidiaries. For
purposes of making the determinations required by this definition, revenues and
assets of Foreign Subsidiaries shall be converted into Dollars at the rates used
in preparing the consolidated balance sheet of the Company included in the
applicable financial statements. The Material Subsidiaries on the Effective Date
are identified in Schedule 1.1.5 hereto.
"Material Indebtedness" is defined in Section 8.1(E).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "Multiemployer Plan" as defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Company or any member of the
Controlled Group.
"National Currency Unit" means the unit of currency (other
than a euro unit) of each member state of the European Union that participates
in the third stage of EMU.
Sidley Xxxxxx Xxxxx & Xxxx
17
"Net Cash Proceeds" means, with respect to any Asset Sale,
Sale and Leaseback Transaction or Financing by any Person, (a) cash or Cash
Equivalents (freely convertible into Dollars) received by such Person or any
Subsidiary of such Person from such Asset Sale or Sale and Leaseback Transaction
(including cash received as consideration for the assumption or incurrence of
liabilities incurred in connection with or in anticipation of such Asset Sale or
Sale and Leaseback Transaction) or Financing, after (i) provision for all income
or other taxes measured by or resulting from such Asset Sale, Sale and Leaseback
Transaction or Financing, (ii) payment of all brokerage commissions and other
fees and expenses and commissions related to such Asset Sale, Sale and Leaseback
Transaction or Financing, and (iii) all amounts used to repay Indebtedness (and
any premium or penalty thereon) secured by a Lien on any asset disposed of in
such Asset Sale or Sale and Leaseback Transaction or which is or may be required
(by the express terms of the instrument governing such Indebtedness or by
applicable law) to be repaid in connection with such Asset Sale or Sale and
Leaseback Transaction (including payments made to obtain or avoid the need for
the consent of any holder of such Indebtedness); and (b) cash or Cash
Equivalents payments in respect of any other consideration received by such
Person or any Subsidiary of such Person from such Asset Sale, Sale and Leaseback
Transaction or Financing upon receipt of such cash payments by such Person or
such Subsidiary.
"Net Income" means, for any period, the net earnings (or loss)
after taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"New Money Credit Event" means, with respect to any Issuing
Bank, any increase (directly or indirectly) in such Issuing Bank's exposure
(whether by way of additional credit or banking facilities or otherwise,
including as part of a restructuring) to the applicable Borrower, any
Governmental Authority in such Borrower's or any applicable Letter of Credit
beneficiary's country occurring by reason of (i) any law, action or requirement
of any Governmental Authority in such Borrower's or such Letter of Credit
beneficiary's country, or (ii) any request in respect of external indebtedness
of borrowers in such Borrowers or such Letter of Credit beneficiary's country
applicable to banks generally which conduct business with such borrowers, or
(iii) any agreement in relation to clause (i) or (ii), in each case to the
extent calculated by reference to the Obligations outstanding prior to such
increase.
"Notice of Assignment" is defined in Section 14.3(B).
"Obligations" means all Loans, L/C Obligations, advances,
debts, liabilities, obligations, covenants and duties owing, the Borrowers or
any of their Subsidiaries to the Administrative Agent, any Lender, the Swing
Line Bank, the Arranger, any Affiliate of the Administrative Agent or any
Lender, any Issuing Bank, any Indemnitee, of any kind or nature, present or
future, arising under this Agreement, the L/C Documents or any other Loan
Document, whether or not evidenced by any note, guaranty or other instrument,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, foreign exchange risk, guaranty, indemnification, or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, attorneys' fees and disbursements,
paralegals' fees (in each case
Sidley Xxxxxx Xxxxx & Xxxx
18
whether or not allowed), and any other sum chargeable to the Company or any of
its Subsidiaries under this Agreement or any other Loan Document.
"Off-Balance Sheet Liabilities" of a Person means (a) any
repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to Receivables sold by such Person or any of its Subsidiaries, (b)
any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated
balance sheet of such Person, (c) any liability of such Person or any of its
Subsidiaries under any financing lease or so-called "synthetic lease" or "tax
ownership operating lease" transaction, or (d) any obligations of such Person or
any of its Subsidiaries arising with respect to any other transaction which is
the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person and its
Subsidiaries.
"Other Taxes" is defined in Section 2.14(E)(ii).
"Participants" is defined in Section 14.2(A).
"Payment Date" means the last Business Day of each quarter,
the Termination Date and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Performance Letter of Credit" means a Letter of Credit issued
to secure ordinary course performance obligations of the Company or a Subsidiary
in connection with active construction projects (including projects about to be
commenced) or bids for prospective construction projects.
"Permitted Acquisition" is defined in Section 7.3(F).
"Permitted Existing Contingent Obligations" means the
Contingent Obligations of the Company and its Subsidiaries identified as such on
Schedule 1.1.4 to this Agreement.
"Permitted Existing Indebtedness" means the Indebtedness of
the Company and its Subsidiaries identified as such on Schedule 1.1.1 to this
Agreement.
"Permitted Existing Investments" means the Investments of the
Company and its Subsidiaries identified as such on Schedule 1.1.2 to this
Agreement.
"Permitted Existing Liens" means the Liens on assets of the
Company and its Subsidiaries identified as such on Schedule 1.1.3 to this
Agreement.
"Permitted Sale and Leaseback Transactions" means (i) any Sale
and Leaseback Transaction of the Company's Plainfield, Illinois headquarters
facility, and (ii) any Sale and Leaseback Transaction of all or any portion of
the Company's equipment fleet, in each case on terms acceptable to the
Administrative Agent and only to the extent that the aggregate amount of Net
Cash Proceeds from all such Permitted Sale and Leaseback Transactions is less
than or equal to $35,000,000.
Sidley Xxxxxx Xxxxx & Xxxx
19
"Person" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PDM Acquisition" means the acquisition by the Company of
substantially all of the assets comprising the water and engineered construction
divisions of Pitt-Des Moines, Inc. for consideration including (i) a cash
purchase price of up to $40,000,000 and (ii) the issuance of 2,848,172 shares of
Capital Stock of the Company, and otherwise on terms consistent in all material
respects with the terms disclosed to the Administrative Agent and set forth in
the PDM Acquisition Agreement.
"PDM Acquisition Agreement" means that certain Asset Purchase
Agreement, dated as of February 7, 2001, by and between Pitt-Des Moines, Inc., a
Pennsylvania corporation, as the seller, and the Company and CB&I Constructors,
Inc., as the buyers, as delivered to the Administrative Agent on February 5,
2001.
"Plan" means an employee benefit plan defined in Section 3(3)
of ERISA, other than a Multiemployer Plan, in respect of which the Company or
any member of the Controlled Group is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the prime rate of interest announced by
Bank One, NA or its parent from time to time (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate
changes.
"Proposed New Lender" is defined in Section 2.5(C)(i).
"Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (A) the Lender's Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions of
this Agreement) by (B) the Aggregate Commitment at such time; provided, however,
if the Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Share" means the percentage obtained by dividing (x) the sum of (A)
such Lender's Revolving Loans, plus (B) such Lender's share of the obligations
to purchase participations in Swing Line Loans and Letters of Credit, by (y) the
sum of (A) the aggregate outstanding amount of Revolving Loans, plus (B) the
aggregate outstanding amount of all Swing Line Loans and the Dollar Amount of
all Letters of Credit.
"Purchasers" is defined in Section 14.3(A)(i).
"Rate Option" means the Eurodollar Rate or the Floating Rate,
as applicable.
"Receivable(s)" means and includes all of the Company's and
its consolidated Subsidiaries' presently existing and hereafter arising or
acquired accounts, accounts receivable, and all present and future rights of the
Company or its Subsidiaries, as applicable, to payment for goods sold or leased
or for services rendered (except those evidenced by instruments or chattel
paper), whether or not they have been earned by performance, and all rights in
any merchandise
Sidley Xxxxxx Xxxxx & Xxxx
20
or goods which any of the same may represent, and all rights, title, security
and guaranties with respect to each of the foregoing, including, without
limitation, any right of stoppage in transit.
"Register" is defined in Section 14.3(C).
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by and to brokers and dealers of securities for the
purpose of purchasing or carrying margin stock (as defined therein).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks, non-banks and non-broker lenders for the
purpose of purchasing or carrying Margin Stock applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by foreign lenders for the purpose of purchasing or
carrying margin stock (as defined therein).
"Reimbursement Obligation" is defined in Section 3.7.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including the movement of
Contaminants through or in the air, soil, surface water or groundwater.
"Rentals" means the aggregate fixed amounts payable by the
Company and its Subsidiaries on a consolidated basis under any lease of real or
personal property having an original term (including any required renewals or
any renewals at the option of the lessor or lessee) of one year or more, but
does not include any amounts payable under Capitalized Leases.
"Replacement Lender" is defined in Section 2.19.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such section, with
respect to a Plan, excluding, however, such events as to which the PBGC by
regulation or otherwise waived the requirement of Section 4043(a) of ERISA that
it be notified within thirty (30) days after such event occurs, provided,
however, that a failure to meet the minimum funding standards of Section 412 of
the Code and of Section 302 of ERISA shall be a Reportable Event regardless of
the issuance of any such waiver of the notice requirement in accordance with
either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%); provided, however, that, if any
of the Lenders shall have failed to fund its Pro Rata Share of (i) any Revolving
Loan requested by the applicable Borrower, (ii) any Revolving Loan required to
be made in connection with reimbursement for any L/C
Sidley Xxxxxx Xxxxx & Xxxx
21
Obligations, (iii) any participation in any Swing Line Loan as requested by the
Administrative Agent, which such Lenders are obligated to fund under the terms
of this Agreement and any such failure has not been cured, then for so long as
such failure continues, "Required Lenders" means Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of such Revolving Loans
or any participation in Swing Line Loans has not been so cured) whose Pro Rata
Shares represent greater than fifty percent (50%) of the aggregate Pro Rata
Shares of such Lenders; provided further, however, that, if the Commitments have
been terminated pursuant to the terms of this Agreement, "Required Lenders"
means Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans and L/C Obligations
are greater than fifty percent (50%).
"Requirements of Law" means, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and any
law, rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurodollar liabilities.
"Response Date" is defined in Section 2.22.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any Equity Interests of the
Company or any of its Subsidiaries now or hereafter outstanding, except a
dividend payable solely in such Person's Capital Stock (other than Disqualified
Stock) or in options, warrants or other rights to purchase such Capital Stock,
(ii) any redemption, retirement, purchase or other acquisition for value, direct
or indirect, of any Equity Interests of the Company or any of its Subsidiaries
now or hereafter outstanding, other than in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a Subsidiary of the
Company) of other Equity Interests of the Company or any of its Subsidiaries
(other than Disqualified Stock), (iii) any payment or prepayment of principal
of, or interest (whether in cash or as payment-in-kind), premium, if any, fees
or other charges with respect to, any Indebtedness subordinated to the
Obligations, or any redemption, purchase, retirement, defeasance, prepayment or
other acquisition for value, direct or indirect, of any Indebtedness other than
(a) the Obligations and (b) any scheduled payments of principal of or interest
with respect to Company's Indebtedness issued pursuant to that certain Note
Purchase Agreement, dated as of July 1, 2001 among the Company and the
purchasers parties thereto, and (iv) any payment of a claim for the rescission
of the purchase or sale of, or for material damages arising from the purchase or
sale of, any Indebtedness (other than the Obligations) or any Equity Interests
of the Company or any of its Subsidiaries, or of a claim for reimbursement,
Sidley Xxxxxx Xxxxx & Xxxx
22
indemnification or contribution arising out of or related to any such claim for
damages or rescission, (v) any payment of management, consulting or investment
banking fees (or other fees of a similar nature) and (vi) any payment in respect
of a purchase price adjustment, earn-out or other similar form of contingent
purchase price.
"Revolving Credit Availability" means, at any particular time,
the amount by which the Aggregate Commitment at such time exceeds the Revolving
Credit Obligations outstanding at such time.
"Revolving Credit Obligations" means, at any particular time,
the sum of (i) the outstanding principal amount of the Revolving Loans at such
time, plus (ii) the outstanding principal amount of the Swing Line Loans at such
time, plus (iii) the outstanding L/C Obligations at such time.
"Revolving Loan" is defined in Section 2.1.
"Risk-Based Capital Guidelines" is defined in Section 4.2.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Sale and Leaseback Transaction" means any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (i) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Selling Lender" is defined in Section 2.5(C)(ii).
"Single Employer Plan" means a Plan maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair valuation
and at present fair saleable value) is equal to or in excess of
the total amount of its liabilities, including, without
limitation, contingent liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
Sidley Xxxxxx Xxxxx & Xxxx
23
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"Standby Letter of Credit" means any Letter of Credit other
than a Performance Letter of Credit.
"Subsidiary" of a Person means (i) any corporation more than
fifty percent (50%) of the outstanding securities having ordinary voting power
of which shall at the time be owned or controlled, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" means a Subsidiary of the
Company.
"Subsidiary Borrower" means any Subsidiaries of the Company
duly designated by the Company pursuant to Section 2.20 to request Advances
hereunder, which Subsidiary shall have delivered to the Administrative Agent an
Assumption Letter in accordance with Section 2.20 and such other documents as
may be required pursuant to this Agreement, in each case together with its
respective successors and assigns, including a debtor-in-possession on behalf of
such Subsidiary Borrower.
"Subsidiary Guarantor(s)" means (a) each Subsidiary Borrower,
(b) all of the Company's Material Subsidiaries (other than any Excluded Foreign
Subsidiary); (c) all New Subsidiaries which are Material Subsidiaries and which
have or are required to have satisfied the provisions of Section 7.2(K)(i); (d)
all of the Company's Subsidiaries which become Material Subsidiaries and which
have satisfied or are required to have satisfied the provisions of Section
7.2(K)(ii); and (e) all other Subsidiaries which become Subsidiary Guarantors in
satisfaction of the provisions of Section 7.2(K)(iii) or Section 7.3(Q), in each
case with respect to clauses (a) through (e) above, and together with their
respective successors and assigns.
"Subsidiary Guaranty" means that certain Amended and Restated
Subsidiary Guaranty, dated as of August 29, 2001 executed by each of Subsidiary
Guarantors as of such date (and any and all supplements thereto executed from
time to time by each additional Subsidiary Guarantor) in favor of the
Administrative Agent in substantially the form of Exhibit H attached hereto, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"Substantial Portion" means, with respect to the assets of the
Company and its Subsidiaries, assets which (i) represent more than 10% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Company and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
Sidley Xxxxxx Xxxxx & Xxxx
24
"Swing Line Bank" means Bank One or any other Lender as a
successor Swing Line Bank pursuant to the terms hereof.
"Swing Line Commitment" means the commitment of the Swing Line
Bank to make Swing Line Loans up to a maximum principal amount of Fifteen
Million and 00/100 Dollars ($15,000,000) at any one time outstanding.
"Swing Line Loan" means a Loan made available to the
applicable Borrower by the Swing Line Bank pursuant to Section 2.2 hereof.
"Taxes" is defined in Section 2.14(E)(i).
"Termination Conditions" is defined in Section 2.18.
"Termination Date" means the earlier of (a) August 29, 2006,
or any later date as may be specified as the Termination Date in accordance with
Section 2.22, and (b) the date of termination in whole of the Aggregate
Commitment pursuant to Section 2.5 hereof or the Commitments pursuant to Section
9.1 hereof.
"Termination Event" means (i) a Reportable Event with respect
to any Benefit Plan; (ii) the withdrawal of the Company or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Company or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (iii)
the imposition of an obligation on the Company or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan; (vi) that a foreign governmental authority shall
appoint or institute proceedings to appoint a trustee to administer any Foreign
Pension Plan in place of the existing administrator, or (vii) the partial or
complete withdrawal of the Company or any member of the Controlled Group from a
Multiemployer Plan or Foreign Pension Plan.
"364-Day Credit Agreement" means that certain Amended and
Restated 364-Day Credit Agreement dated as of the Effective Date among the
Company, the subsidiary borrowers from time to time parties thereto, the lenders
from time to time parties thereto, and Bank One, as the administrative agent
thereunder, as the same may be amended, restated, supplemented or otherwise
modified and as in effect from time to time.
"Transaction Documents" means the Loan Documents and, from and
after the consummation of the H-B Acquisition, the documents executed and
delivered by the Company or any of its Subsidiaries in connection with the H-B
Acquisition, including, without limitation, the H-B Acquisition Agreement, and,
from and after the consummation of the PDM Acquisition, the documents executed
and delivered by the Company or any of its Subsidiaries in connection with the
PDM Acquisition, including, without limitation, the PDM Acquisition Agreement.
Sidley Xxxxxx Xxxxx & Xxxx
25
"Transferee" is defined in Section 14.5.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992 and came into force on
November 1, 1993), as amended from time to time.
"Type" means, with respect to any Loan, its nature as a
Floating Rate Loan or a Eurodollar Rate Loan.
"Unfunded Liabilities" means (i) in the case of Single
Employer Plans, the amount (if any) by which the aggregate accumulated benefit
obligations exceeds the aggregate fair market value of assets of present value
of all vested nonforfeitable benefits under all Single Employer Plans as of the
most recent measurement date, all as determined under FAS 87 using the methods
and assumptions used by the Company for financial accounting purposes, and (ii)
in the case of Multiemployer Plans, the withdrawal liability that would be
incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"Unmatured Default" means an event which, but for the lapse of
time or the giving of notice, or both, would constitute a Default.
1.2. Singular/Plural References; Accounting Terms. The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. Any accounting terms used in this Agreement
which are not specifically defined herein shall have the meanings customarily
given them in accordance with Agreement Accounting Principles.
1.3. References. Any references to the Company's
Subsidiaries shall not in any way be construed as consent by the Administrative
Agent or any Lender to the establishment, maintenance or acquisition of any
Subsidiary, except as may otherwise be permitted hereunder.
1.4. Supplemental Disclosure. At any time at the request of
the Administrative Agent and at such additional times as the Company determines,
the Company shall supplement each schedule or representation herein or in the
other Loan Documents with respect to any matter hereafter arising which, if
existing or occurring at the date of this Agreement, would have been required to
be set forth or described in such schedule or as an exception to such
representation or which is necessary to correct any information in such schedule
or representation which has been rendered inaccurate thereby. Notwithstanding
that any such supplement to such schedule or representation may disclose the
existence or occurrence of events, facts or circumstances which are either
prohibited by the terms of this Agreement or any other Loan Documents or which
result in the breach of any representation or warranty, such supplement to such
schedule or representation shall not be deemed either an amendment thereof or a
waiver of such breach unless expressly consented to in writing by Administrative
Agent and the Required Lenders, and no such amendments, except as the same may
be consented to in a writing which expressly includes a waiver, shall be or be
deemed a waiver by the Administrative Agent or any Lender of any Default
disclosed therein. Any items disclosed in any such supplemental disclosures
shall be
Sidley Xxxxxx Xxxxx & Xxxx
26
included in the calculation of any limits, baskets or similar restrictions
contained in this Agreement or any of the other Loan Documents. ARTICLE II:
REVOLVING LOAN FACILITY
2.1. Revolving Loans.
(A) Amount of Revolving Loans. Upon the satisfaction of the
conditions precedent set forth in Sections 5.1, 5.2, 5.3 and 5.4,
as applicable, from and including the Closing Date and prior to the
Termination Date, each Lender severally and not jointly agrees, on
the terms and conditions set forth in this Agreement, to make
revolving loans to the Borrowers from time to time, in Dollars, in
an amount not to exceed such Lender's Pro Rata Share of Revolving
Credit Availability at such time (each individually, a "Revolving
Loan" and, collectively, the "Revolving Loans"); provided however,
at no time shall the amount of the Revolving Credit Obligations
exceed the Aggregate Commitment. Subject to the terms of this
Agreement, the Borrowers may borrow, repay and reborrow Revolving
Loans at any time prior to the Termination Date. The Revolving
Loans made on the Closing Date or on or before the third (3rd)
Business Day thereafter shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted
into Eurodollar Rate Loans in the manner provided in Section 2.9
and subject to the other conditions and limitations therein set
forth and set forth in this Article II and set forth in the
definition of Interest Period. Revolving Loans made after the third
(3rd) Business Day after the Closing Date shall be, at the option
of the applicable Borrower, either Floating Rate Loans or
Eurodollar Rate Loans selected in accordance with Section 2.9. On
the Termination Date, each of the Borrowers shall repay in full the
outstanding principal balance of the Revolving Loans made to it.
Each Advance under this Section 2.1 shall consist of Revolving
Loans made by each Lender ratably in proportion to such Lender's
respective Pro Rata Share.
(B) Borrowing/Election Notice. The applicable Borrower
shall deliver to the Administrative Agent a Borrowing/Election
Notice, signed by it, in accordance with the terms of Section 2.7.
(C) Making of Revolving Loans. Promptly after receipt of
the Borrowing/Election Notice under Section 2.7 in respect of
Revolving Loans, the Administrative Agent shall notify each Lender
by telecopy, or other similar form of transmission, of the
requested Revolving Loan. Each Lender shall make available its
Revolving Loan in accordance with the terms of Section 2.6. The
Administrative Agent will promptly make the funds so received from
the Lenders available to the applicable Borrower at the
Administrative Agent's office in Chicago, Illinois on the
applicable Borrowing Date and shall disburse such proceeds in
accordance with the applicable Borrower's disbursement instructions
set forth in such Borrowing/Election Notice. The failure of any
Lender to deposit the amount described above with the
Administrative Agent on the applicable Borrowing Date shall not
relieve any other Lender of its obligations hereunder to make its
Revolving Loan on such Borrowing Date.
2.2. Swing Line Loans.
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27
(A) Amount of Swing Line Loans. On the terms and conditions
set forth in this Agreement and upon the satisfaction of the
conditions precedent set forth in Section 5.1, 5.2, 5.3 and 5.4, as
applicable, from and including the Closing Date and prior to the
Termination Date, the Swing Line Bank agrees to make swing line
loans to the Borrowers from time to time, in Dollars, in an amount
not to exceed the Swing Line Commitment (each, individually, a
"Swing Line Loan" and collectively, the "Swing Line Loans");
provided, however, at no time shall the amount of the Revolving
Credit Obligations exceed the Aggregate Commitment; and provided,
further, that at no time shall the sum of (a) the Swing Line Bank's
Pro Rata Share of the Swing Line Loans, plus (b) the outstanding
amount of Revolving Loans made by the Swing Line Bank pursuant to
Section 2.1, plus (c) the Swing Line Bank's share of the
obligations to purchase participations in Letters of Credit, exceed
the Swing Line Bank's Commitment at such time. Subject to the terms
of this Agreement, the Borrowers may borrow, repay and reborrow
Swing Line Loans at any time prior to the Termination Date.
(B) Borrowing/Election Notice. The applicable Borrower
shall deliver to the Administrative Agent and the Swing Line Bank a
Borrowing/Election Notice, signed by it, not later than 12:00 p.m.
(Chicago time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall be a
Business Day and which may be the same date as the date the
Borrowing/Election Notice is given), and (ii) the aggregate amount
of the requested Swing Line Loan which shall be an amount not less
than $100,000 (and increments of $100,000 if in excess thereof).
(C) Making of Swing Line Loans. Promptly after receipt of
the Borrowing/Election Notice under Section 2.2(B) in respect of
Swing Line Loans the Administrative Agent shall notify each Lender
by telex or telecopy, or other similar form of transmission, of the
requested Swing Line Loan. Not later than 4:00 p.m. (Chicago time)
on the applicable Borrowing Date, the Swing Line Bank shall make
available its Swing Line Loan, in funds immediately available in
Chicago to the Administrative Agent at its address specified
pursuant to Article XV. The Administrative Agent will promptly make
the funds so received from the Swing Line Bank available to the
applicable Borrower on the Borrowing Date at the Administrative
Agent's aforesaid address. The Swing Line Loans shall be Floating
Rate Loans unless the applicable Borrower and the Swing Line Bank
agree otherwise.
(D) Repayment of Swing Line Loans. Each Swing Line Loan
shall be paid in full by the applicable Borrower on or before the
fifth (5th) Business Day after the Borrowing Date for such Swing
Line Loan. The applicable Borrower may at any time pay, without
penalty or premium, all outstanding Swing Line Loans or, in a
minimum amount of $100,000 and increments of $100,000 in excess
thereof, any portion of the outstanding Swing Line Loans, upon
notice to the Administrative Agent and the Swing Line Bank. In
addition, the Administrative Agent (i) may at any time in the sole
discretion of the Swing Line Bank with respect to any outstanding
Swing Line Loan, or (ii) shall on the fifth (5th) Business Day
after the Borrowing Date of any Swing Line Loan, require each
Lender (including the Swing Line Bank) to make a Revolving Loan in
the amount of such Lender's Pro Rata Share of such Swing Line Loan,
for the purpose of repaying such Swing Line Loan. Not later than
2:00 p.m. (Chicago time) on the date of
Sidley Xxxxxx Xxxxx & Xxxx
28
any notice received pursuant to this Section 2.2(D), each Lender
shall make available its required Revolving Loan or Revolving
Loans, in funds immediately available in Chicago to the
Administrative Agent at its address specified pursuant to Article
XV. Revolving Loans made pursuant to this Section 2.2(D) shall
initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Rate Loans in the
manner provided in Section 2.9 and subject to the other conditions
and limitations therein set forth and set forth in this Article II.
Unless a Lender shall have notified the Swing Line Bank, prior to
its making any Swing Line Loan, that any applicable condition
precedent set forth in Sections 5.1, 5.2, 5.3 and 5.4, as
applicable, had not then been satisfied, such Lender's obligation
to make Revolving Loans pursuant to this Section 2.2(D) to repay
Swing Line Loans shall be unconditional, continuing, irrevocable
and absolute and shall not be affected by any circumstances,
including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against the Administrative Agent, the Swing Line Bank or any other
Person, (b) the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or
otherwise) of the Company, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails
to make payment to the Administrative Agent of any amount due under
this Section 2.2(D), the Administrative Agent shall be entitled to
receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the
Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to
the Administrative Agent of any amount due under this Section
2.2(D), such Lender shall be deemed, at the option of the
Administrative Agent, to have unconditionally and irrevocably
purchased from the Swing Line Bank, without recourse or warranty,
an undivided interest and participation in the applicable Swing
Line Loan in the amount of such Revolving Loan, and such interest
and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand and ending on
the date such amount is received. On the Termination Date, each of
the Borrowers shall repay in full the outstanding principal balance
of all Swing Line Loans made to it.
2.3. Rate Options for all Advances; Maximum Interest
Periods. The Swing Line Loans shall be Floating Rate Loans unless the applicable
Borrower and the Swing Line Bank agree otherwise. The Revolving Loans may be
Floating Rate Advances or Eurodollar Rate Advances, or a combination thereof,
selected by the applicable Borrowers in accordance with Section 2.9. The
Borrowers may select, in accordance with Section 2.9, Rate Options and Interest
Periods applicable to portions of the Revolving Loans; provided that there shall
be no more than seven (7) Interest Periods in effect with respect to all of the
Loans at any time.
2.4. Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrowers may from time to time
and at any time upon at least one (1) Business Day's prior written
notice repay or prepay, without penalty or premium all or any part
of outstanding Floating Rate Advances in an aggregate minimum
amount of Four Million Dollars ($4,000,000) and in integral
multiples of One Million Dollars ($1,000,000) in excess thereof.
Eurodollar Rate Advances may be
Sidley Xxxxxx Xxxxx & Xxxx
29
voluntarily repaid or prepaid prior to the last day of the
applicable Interest Period, subject to the indemnification
provisions contained in Section 4.4, in an aggregate minimum amount
of Four Million and 00/100 Dollars ($4,000,000) and in integral
multiples of One Million and 00/100 Dollars ($1,000,000) in excess
thereof; provided, that the applicable Borrower may not so prepay
Eurodollar Rate Advances unless it shall have provided at least
three (3) Business Days' prior written notice to the Administrative
Agent of such prepayment and provided, further, all Eurodollar
Loans constituting part of the same Eurodollar Rate Advance shall
be repaid or prepaid at the same time.
(B) Determination of Dollar Amounts of Letters of Credit;
Mandatory Prepayments of Revolving Loans.
(i) The Administrative Agent will determine the Dollar
Amount of:
(a) each Letter of Credit on the date three (3)
Business Days prior to the issuance date, or, if applicable,
renewal date of such Letter of Credit; and
(b) all outstanding L/C Obligations on and as of the
last Business Day of each calendar month and on any other
Business Day elected by the Administrative Agent in its
discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Administrative Agent
determines Dollar Amounts as described in the preceding
clauses (a) and (b) is herein described as a "Computation
Date" with respect to each Letter of Credit for which a Dollar
Amount is determined on or as of such day.
(ii) If at any time and for any reason (other than as the
result of fluctuations in currency exchange rates) the Dollar
Amount of the Revolving Credit Obligations (calculated, with
respect to all L/C Obligations denominated in Agreed Currencies
other than Dollars, as of the most recent Computation Date with
respect to each such L/C Obligation) is greater than the
Aggregate Commitment, the Borrowers shall immediately make a
mandatory prepayment of the Obligations in an amount equal to
such excess. The Company shall also make all prepayments required
under Section 2.5(B).
(iii) If, on any Computation Date, as a result of
fluctuations in currency exchange rates the Dollar Amount of the
Revolving Credit Obligations exceeds one hundred five percent
(105%) of the Aggregate Commitment, the Administrative Agent
shall so notify the Company and the Lenders of such occurrence
and the Borrowers shall immediately repay Revolving Loans or
Swing Line Loans in an aggregate principal amount sufficient to
eliminate any such excess.
(iv) All of the mandatory prepayments made under this
Section 2.4(B) shall be applied first to Floating Rate Loans and
to any Eurodollar Rate Loans maturing on such date and then to
subsequently maturing Eurodollar Rate Loans.
2.5. Changes in Commitments.
Sidley Xxxxxx Xxxxx & Xxxx
30
(A) Voluntary Commitment Reductions. The Company may
permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders, in an aggregate minimum amount of Ten
Million and 00/100 Dollars ($10,000,000) and integral multiples of
One Million and 00/100 Dollars ($1,000,000) in excess of that
amount (unless the Aggregate Commitment is reduced in whole), upon
at least three (3) Business Day's prior written notice to the
Administrative Agent, which notice shall specify the amount of any
such reduction; provided, however, that the amount of the Aggregate
Commitment may not be reduced below the aggregate principal amount
of the outstanding Revolving Credit Obligations. All accrued
commitment fees shall be payable on the effective date of any
termination of all or any part of the obligations of the Lenders to
make Loans hereunder.
(B) Mandatory Commitment Reductions.
(i) [Reserved].
(ii) Financings.
(a) Except as provided in clause (ii)(b) below, upon
the consummation of any Financing in connection with the
issuance or sale of Disqualified Stock or Indebtedness by the
Company or any Subsidiary of the Company, within three (3)
Business Days after the Company's or any of its Subsidiaries'
receipt of any Net Cash Proceeds from such Financing, the
Company shall make a mandatory prepayment of the Obligations
in an amount equal to (x) at any time the Leverage Ratio
(determined as of the last day of the most recent fiscal
quarter for which a compliance certificate shall have been
delivered in accordance with Section 7.1(A)) shall be greater
than or equal to 1.00 to 1.00, 100% of such Net Cash Proceeds,
and (y) at any time the Leverage Ratio (determined as of the
last day of the most recent fiscal quarter for which a
compliance certificate shall have been delivered in accordance
with Section 7.1(A)) shall be less than 1.00 to 1.00, 50% of
such Net Cash Proceeds, and the Aggregate Commitment shall be
permanently reduced by an amount equal to such Net Cash
Proceeds.
(b) Notwithstanding the foregoing, Net Cash Proceeds
subject to clause (ii)(a) above shall not include Net Cash
Proceeds received in connection with (x) the issuance of any
Capital Stock of the Company or any Subsidiary of the Company,
other than Disqualified Stock, to any employee, executive,
director or officer pursuant to an Incentive Arrangement, or
(y) the issuance of Indebtedness permitted to be incurred
under Sections 7.3(A)(i) through (viii).
(C) Increase in Commitments.
(i) At any time, the Company (on behalf of itself and the
other Borrowers) may request that the Aggregate Commitment be
increased; provided that, without the prior written consent of
all of the Lenders, (a) the Aggregate Commitment shall at no time
exceed $200,000,000 minus the aggregate amount of all reductions
in the Aggregate Commitment previously made pursuant to Section
2.5(A) or (B); (b) the
Sidley Xxxxxx Xxxxx & Xxxx
31
Company shall not make any such request during the six month
period following any reduction in the Aggregate Commitment
previously made pursuant to Section 2.5(A) or (B); (c) the
Company shall not be entitled to make more than one such request
during the term of this Agreement; and (d) each such request
shall be in a minimum amount of at least $25,000,000 and
increments of $1,000,000 in excess thereof. Such request shall be
made in a written notice given to the Administrative Agent and
the Lenders by the Company not less than twenty (20) Business
Days prior to the proposed effective date of such increase, which
notice (a "Commitment Increase Notice") shall specify the amount
of the proposed increase in the Aggregate Commitment and the
proposed effective date of such increase. In the event of such a
Commitment Increase Notice, each of the Lenders shall be given
the opportunity to participate in the requested increase ratably
in proportions that their respective Commitments bear to the
Aggregate Commitment. No Lender shall have any obligation to
increase its Commitment pursuant to a Commitment Increase Notice.
On or prior to the date that is fifteen (15) Business Days after
receipt of the Commitment Increase Notice, each Lender shall
submit to the Administrative Agent a notice indicating the
maximum amount by which it is willing to increase its Commitment
in connection with such Commitment Increase Notice (any such
notice to the Administrative Agent being herein a "Lender
Increase Notice"). Any Lender which does not submit a Lender
Increase Notice to the Administrative Agent prior to the
expiration of such fifteen (15) Business Day period shall be
deemed to have denied any increase in its Commitment. In the
event that the increases of Commitments set forth in the Lender
Increase Notices exceed the amount requested by the Company in
the Commitment Increase Notice, the Administrative Agent and the
Arranger shall have the right, in consultation with the Company,
to allocate the amount of increases necessary to meet the
Company's Commitment Increase Notice. In the event that the
Lender Increase Notices are less than the amount requested by the
Company, not later than three (3) Business Days prior to the
proposed effective date the Company may notify the Administrative
Agent of any financial institution that shall have agreed to
become a "Lender" party hereto (a "Proposed New Lender") in
connection with the Commitment Increase Notice. Any Proposed New
Lender shall be consented to by the Administrative Agent (which
consent shall not be unreasonably withheld) and shall be a
commercial bank having capital and retained earnings of at least
$500,000,000. If the Company shall not have arranged any Proposed
New Lender(s) to commit to the shortfall from the Lender Increase
Notices, then the Company shall be deemed to have reduced the
amount of its Commitment Increase Notice to the aggregate amount
set forth in the Lender Increase Notices. Based upon the Lender
Increase Notices, any allocations made in connection therewith
and any notice regarding any Proposed New Lender, if applicable,
the Administrative Agent shall notify the Company and the Lenders
on or before the Business Day immediately prior to the proposed
effective date of the amount of each Lender's and Proposed New
Lenders' Commitment (the "Effective Commitment Amount") and the
amount of the Aggregate Commitment, which amounts shall be
effective on the following Business Day. Any increase in the
Aggregate Commitment shall be subject to the following conditions
precedent: (A) the Company shall have obtained the consent
thereto of each Guarantor and its reaffirmation of the
Sidley Xxxxxx Xxxxx & Xxxx
32
Loan Document(s) executed by it, which consent and reaffirmation
shall be in writing and in form and substance reasonably
satisfactory to the Administrative Agent, (B) as of the date of
the Commitment Increase Notice and as of the proposed effective
date of the increase in the Aggregate Commitment all
representations and warranties shall be true and correct in all
material respects as though made on such date and no event shall
have occurred and then be continuing which constitutes a Default
or Unmatured Default, (C) the Borrowers, the Administrative Agent
and each Proposed New Lender or Lender that shall have agreed to
provide a "Commitment" in support of such increase in the
Aggregate Commitment shall have executed and delivered a
"Commitment and Acceptance" substantially in the form of Exhibit
L hereto, (D) counsel for the Company and for the Guarantors
shall have provided to the Administrative Agent supplemental
opinions in form and substance reasonably satisfactory to the
Administrative Agent and (E) the Borrowers and the Proposed New
Lender shall otherwise have executed and delivered such other
instruments and documents as may be required under Article V or
that the Administrative Agent shall have reasonably requested in
connection with such increase. If any fee shall be charged by the
Lenders in connection with any such increase, such fee shall be
in accordance with then prevailing market conditions, which
market conditions shall have been reasonably documented by the
Administrative Agent to the Company. Upon satisfaction of the
conditions precedent to any increase in the Aggregate Commitment,
the Administrative Agent shall promptly advise the Company and
each Lender of the effective date of such increase. Upon the
effective date of any increase in the Aggregate Commitment that
is supported by a Proposed New Lender, such Proposed New Lender
shall be a party to this Agreement as a Lender and shall have the
rights and obligations of a Lender hereunder and thereunder.
Nothing contained herein shall constitute, or otherwise be deemed
to be, a commitment on the part of any Lender to increase its
Commitment hereunder at any time.
(ii) For purposes of this clause (ii), (A) the term "Buying
Lender(s)" shall mean (1) each Lender the Effective Commitment
Amount of which is greater than its Commitment prior to the
effective date of any increase in the Aggregate Commitment and
(2) each Proposed New Lender that is allocated an Effective
Commitment Amount in connection with any Commitment Increase
Notice and (b) the term "Selling Lender(s)" shall mean each
Lender whose Commitment is not being increased from that in
effect prior to such increase in the Aggregate Commitment.
Effective on the effective date of any increase in the Aggregate
Commitment pursuant to clause (i) above, each Selling Lender
hereby sells, grants, assigns and conveys to each Buying Lender,
without recourse, warranty, or representation of any kind, except
as specifically provided herein, an undivided percentage in such
Selling Lender's right, title and interest in and to its
outstanding Loans in the respective Dollar Amounts and
percentages necessary so that, from and after such sale, each
such Selling Lender's outstanding Loans shall equal such Selling
Lender's Pro Rata Share (calculated based upon the Effective
Commitment Amounts) of the outstanding Loans. Effective on the
effective date of the increase in the Aggregate Commitment
pursuant to clause (i) above, each Buying Lender hereby purchases
and accepts such grant, assignment and conveyance from the
Selling Lenders. Each Buying Lender hereby agrees that its
respective purchase price for the portion of the outstanding
Sidley Xxxxxx Xxxxx & Xxxx
33
Loans purchased hereby shall equal the respective Dollar Amount
necessary so that, from and after such payments, each Buying
Lender's outstanding Loans shall equal such Buying Lender's Pro
Rata Share (calculated based upon the Effective Commitment
Amounts) of the outstanding Loans. Such amount shall be payable
on the effective date of the increase in the Aggregate Commitment
by wire transfer of immediately available funds to the
Administrative Agent. The Administrative Agent, in turn, shall
wire transfer any such funds received to the Selling Lenders, in
same day funds, for the sole account of the Selling Lenders. Each
Selling Lender hereby represents and warrants to each Buying
Lender that such Selling Lender owns the Loans being sold and
assigned hereby for its own account and has not sold, transferred
or encumbered any or all of its interest in such Loans, except
for participations which will be extinguished upon payment to
Selling Lender of an amount equal to the portion of the
outstanding Loans being sold by such Selling Lender. Each Buying
Lender hereby acknowledges and agrees that, except for each
Selling Lender's representations and warranties contained in the
foregoing sentence, each such Buying Lender has entered into its
Commitment and Acceptance with respect to such increase on the
basis of its own independent investigation and has not relied
upon, and will not rely upon, any explicit or implicit written or
oral representation, warranty or other statement of the Lenders
or the Administrative Agent concerning the authorization,
execution, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan
Documents. The Company hereby agrees to compensate each Selling
Lender for all losses, expenses and liabilities incurred by each
Lender in connection with the sale and assignment of any
Eurodollar Loan hereunder on the terms and in the manner as set
forth in Section 3.4.
2.6. Method of Borrowing. On each Borrowing Date, each
Lender shall make available its Revolving Loan or Revolving Loans, if any, not
later than noon, Chicago time, in Federal or other funds immediately available
to the Administrative Agent, in Chicago, Illinois at its address specified in or
pursuant to Article XV. Unless the Administrative Agent determines that any
applicable condition specified in Article V has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders available
to the applicable Borrower at the Administrative Agent's aforesaid address.
2.7. Method of Selecting Types and Interest Periods for
Advances. The applicable Borrower shall select the Type of Advance and, in the
case of each Eurodollar Rate Advance, the Interest Period applicable to each
Advance from time to time. The applicable Borrower shall give the Administrative
Agent irrevocable notice in substantially the form of Exhibit B hereto (a
"Borrowing/Election Notice") not later than 10:00 a.m. (Chicago time) (a) on or
before the Borrowing Date of each Floating Rate Advance, (b) three (3) Business
Days before the Borrowing Date for each Eurodollar Rate Advance. The Borrowers
shall select Interest Periods so that, to the best of their knowledge, it will
not be necessary to prepay all or any portion of any Eurodollar Rate Loan prior
to the last day of the applicable Interest Period in order to make mandatory
prepayments as required pursuant to the terms hereof. Each Floating Rate Advance
and all Obligations other than Loans shall bear interest from and including the
date of the making of such Advance, in the case of Loans, and the date such
Obligation is due and owing in the case of such other Obligations, to (but not
including) the date of repayment
Sidley Xxxxxx Xxxxx & Xxxx
34
thereof at the Floating Rate changing when and as such Floating Rate changes.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Loan will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurodollar Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such Eurodollar Rate Advance and shall change as and when the
Applicable Eurodollar Margin changes.
2.8. Minimum Amount of Each Advance. Each Advance (other
than an Advance to repay Swing Line Loans or a Reimbursement Obligation) shall
be in the minimum amount of Four Million Dollars ($4,000,000) and in multiples
of One Million Dollars ($1,000,000) if in excess thereof, provided, however,
that any Floating Rate Advance may be in the amount of the unused Aggregate
Commitment.
2.9. Method of Selecting Types and Interest Periods for
Conversion and Continuation of Advances.
(A) Right to Convert. The applicable Borrower may elect
from time to time, subject to the provisions of Section 2.3 and
this Section 2.9, to convert all or any part of a Loan of any Type
into any other Type or Types of Loans; provided that any conversion
of any Eurodollar Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate
Loans shall continue as Floating Rate Loans unless and until such
Floating Rate Loans are converted into Eurodollar Rate Loans.
Eurodollar Rate Loans shall continue as Eurodollar Rate Loans until
the end of the then applicable Interest Period therefor, at which
time such Eurodollar Rate Loans shall be automatically converted
into Floating Rate Loans unless such Eurodollar Rate Loans shall
have been repaid or the Company shall have given the Administrative
Agent notice in accordance with Section 2.9 (D) requesting that, at
the end of such Interest Period, such Eurodollar Rate Loans
continue as a Eurodollar Rate Loan.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section
2.9(A) or Section 2.9(B), no Loan may be converted into or
continued as a Eurodollar Rate Loan (except with the consent of the
Required Lenders) when any Default or Unmatured Default has
occurred and is continuing.
(D) Borrowing/Election Notice. The Company shall give the
Administrative Agent an irrevocable Borrowing/Election Notice of
each conversion of a Floating Rate Loan into a Eurodollar Rate Loan
or continuation of a Eurodollar Rate Loan not later than 10:00 a.m.
(Chicago time) (x) one (1) Business Day prior to the date of the
requested conversion or continuation, with respect to any Loan to
be converted to or continued as a Floating Rate Advance, and (y)
three (3) Business Days prior to the date of the requested
conversion or continuation, with respect to any Loan to be
converted or continued as a Eurodollar Rate Loan, specifying: (1)
the requested date (which shall be a Business Day)
Sidley Xxxxxx Xxxxx & Xxxx
35
of such conversion or continuation; (2) the amount and Type of the
Loan to be converted or continued; and (3) if applicable, the
amount of Eurodollar Rate Loan(s) into which such Loan is to be
converted or continued and the duration of the Interest Period
applicable thereto.
2.10. Default Rate. After the occurrence and during the
continuance of a Default, at the option of the Administrative Agent or at the
direction of the Required Lenders the interest rate(s) applicable to the
Obligations and all other fees (including the fees payable under Section 3.8
with respect to Letters of Credit) shall be equal to (x) the interest rates and
fees calculated based on the maximum Applicable Floating Rate Margins,
Applicable Eurodollar Margin and Applicable Commitment Fee Percentage, as
applicable, under the pricing grid set forth in Section 2.14(D)(ii) plus (y) two
percent (2.00%) per annum for all such Obligations and fees; provided that
during the continuation of a bankruptcy or insolvency default such interest rate
and fee increases shall be automatically applicable without any election of the
Administrative Agent or action of the Required Lenders.
2.11. Method of Payment.
(A) Method of Payment. All payments of principal, interest,
fees, reimbursements, commissions, L/C Obligations and other
Obligations hereunder shall be made, without setoff, deduction or
counterclaim (unless indicated otherwise in Section 2.14(E)), in
immediately available funds to the Administrative Agent at the
Administrative Agent's address specified pursuant to Article XV, or
at any other Lending Installation of the applicable Issuing Bank
specified in writing by such Issuing Bank to the applicable
Borrower in connection with any Letter of Credit issued in an
Agreed Currency other than Dollars. Each Advance shall be repaid or
prepaid in Dollars in the amount equal to the amount borrowed and
interest payable thereon shall also be paid in Dollars. Each L/C
Obligation denominated in an Agreed Currency other than Dollars
shall be repaid, and all interest and fees to be paid in respect
thereof shall be paid, in the currency in which the related Letter
of Credit was issued or, where such currency has converted to euro,
in euro. All payments to be made by any Borrower hereunder in any
currency other than Dollars shall be made in such currency on the
date due in such funds as may then be customary for the settlement
of international transactions in such currency for the account of
the Administrative Agent or applicable Issuing Bank, as applicable,
at its designated Lending Installation for such currency. Each
payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent
to such Lender in the same type of funds that the Administrative
Agent received at its address specified pursuant to Article XV or
at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is
hereby authorized to charge any account of the applicable Borrower
maintained with Bank One or any of its Affiliates for each payment
of principal, interest and fees as it becomes due hereunder. Each
reference to the Administrative Agent in this Section 2.11 shall
also be deemed to refer, and shall apply equally, to each Issuing
Bank, in the case of payments required to be made by any Borrower
to any Issuing Bank pursuant to Article III.
Sidley Xxxxxx Xxxxx & Xxxx
36
(B) Market Disruption. If, after the designation by the
applicable Issuing Bank and the Administrative Agent of any
currency as an Agreed Currency, in the reasonable opinion of any
Borrower, any Issuing Bank, the Required Lenders or the
Administrative Agent, (x) there shall occur any change in national
or international financial, political or economic conditions or
currency exchange rates or currency control or other exchange
regulations are imposed in the country which issues such currency
with the result that it shall be impractical for any L/C Obligation
to be denominated in such currency or different types of such
currency are introduced, (y) such currency is no longer readily
available or freely traded or (z) an Equivalent Amount of such
currency is not readily calculable (any such event a "Market
Disruption"), such Borrower, such Issuing Bank, the Required
Lenders or the Administrative Agent, as applicable, shall promptly
notify the Lenders, the Issuing Banks, the Administrative Agent and
the Borrowers, and such currency shall no longer be an Agreed
Currency until such time as the Administrative Agent and any
applicable Issuing Bank agrees to reinstate such currency as an
Agreed Currency, and all payments to be made by the applicable
Borrower hereunder in such currency shall instead be made when due
in Dollars in an amount equal to the Dollar Amount (as of the date
of repayment) of such payment due, it being the intention of the
parties hereto that the Borrowers take all risks of the imposition
of any such currency control or exchange regulations. For purposes
of this Section 2.11(B), the commencement of the third stage of the
European Economic and Monetary Union shall not constitute the
imposition of currency control or exchange regulations.
2.12. Evidence of Debt.
(A) Loan Account. Each Lender shall maintain in accordance
with its usual practice an account or accounts (a "Loan Account")
evidencing the indebtedness of the Borrowers to such Lender owing
to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to
time hereunder.
(B) Register. The Register maintained by the Administrative
Agent pursuant to Section 14.3(C) shall include a control account,
and a subsidiary account for each Lender and each Borrower, in
which accounts (taken together) shall be recorded (i) the date and
the amount of each Loan made hereunder, the Type thereof and the
Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable
from each of the Borrowers to each Lender hereunder, (iii) the
effective date and amount of each Assignment Agreement delivered to
and accepted by it and the parties thereto pursuant to Section
14.3, (iv) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's
share thereof, and (v) all other appropriate debits and credits as
provided in this Agreement, including, without limitation, all
fees, charges, expenses and interest.
(C) Entries in Loan Account and Register. The entries made
in the Loan Account, the Register and the other accounts maintained
pursuant to clauses (A) or (B) of this Section shall be prima facie
evidence thereof for all purposes, absent manifest error, unless
the applicable Borrower objects to information contained in the
Loan Accounts, the Register or the other accounts within thirty
(30) days of the applicable Borrower's
Sidley Xxxxxx Xxxxx & Xxxx
37
receipt of such information; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans in accordance with the terms of this
Agreement.
(D) Noteless Transaction; Notes Issued Upon Request. Any
Lender may request that the Revolving Loans made or to be made by
it each be evidenced by a promissory note in substantially the form
of Exhibit I to evidence such Lender's Revolving Loans. In such
event, the Borrowers shall prepare, execute and deliver to such
Lender a promissory note for such Loans payable to the order of
such Lender. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after
assignment pursuant to Section 14.3) be represented by one or more
promissory notes in such form payable to the order of the payee
named therein.
2.13. Telephonic Notices. The Borrowers authorize the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the applicable Borrower. Each of
the Subsidiary Borrowers authorizes the Company to make requests and give
notices hereunder on behalf of such Subsidiary Borrowers. The Borrowers agree to
deliver promptly to the Administrative Agent a written confirmation, signed by
an Authorized Officer, if such confirmation is requested by the Administrative
Agent or any Lender, of each telephonic notice. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error. In case of disagreement concerning such
notices, if the Administrative Agent has recorded telephonic borrowing notices,
such recordings will be made available to the applicable Borrower upon its
request therefor.
2.14. Promise to Pay; Interest and Commitment Fees; Interest
Payment Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. All Advances shall be paid in full by
the applicable Borrowers on the Termination Date. Each Borrower
unconditionally promises to pay when due the principal amount of
each Loan and all other Obligations incurred by it, and to pay all
unpaid interest accrued thereon, in accordance with the terms of
this Agreement and the other Loan Documents, and confirms that all
Borrowers (other than Borrowers which are Foreign Subsidiaries)
shall be jointly and severally liable for all of the Obligations.
(B) Interest Payment Dates. Interest accrued on each
Floating Rate Loan shall be payable on each Payment Date,
commencing with the first such date to occur after the Closing
Date, upon any prepayment whether by acceleration or otherwise, and
at maturity (whether by acceleration or otherwise). Interest
accrued on each Eurodollar Rate Loan shall be payable on the last
day of its applicable Interest Period, on any date on which the
Eurodollar Rate Loan is prepaid, whether by acceleration or
otherwise, and at maturity; provided, interest accrued on each
Eurodollar Rate Loan having an Interest Period longer
Sidley Xxxxxx Xxxxx & Xxxx
38
than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest accrued
on the principal balance of all other Obligations shall be payable
in arrears (i) on the last day of each calendar quarter, commencing
on the first such day following the incurrence of such Obligation,
(ii) upon repayment thereof in full or in part, and (iii) if not
theretofore paid in full, at the time such other Obligation becomes
due and payable (whether by acceleration or otherwise).
(C) Commitment Fees; Additional Fees.
(i) The Company shall pay to the Administrative Agent, for
the account of the Lenders in accordance with their Pro Rata
Shares, from and after the Closing Date until the date on which
the Aggregate Commitment shall be terminated in whole, a
commitment fee at the rate of the then Applicable Commitment Fee
Percentage multiplied by the average amount by which (A) the
Aggregate Commitment in effect from time to time exceeds (B) the
Revolving Credit Obligations (excluding the outstanding principal
amount of the Swing Line Loans) in effect from time to time
during each fiscal quarter of the Company. All such commitment
fees payable under this clause (C) shall be payable quarterly on
the last day of each fiscal quarter of the Company occurring
after the Closing Date (with the first such payment being
calculated for the period from the Closing Date and ending on
September 30, 2002), and, in addition, on any date on which the
Aggregate Commitment shall be terminated in whole.
(ii) The Company agrees to pay or to cause the Borrowers to
pay to the Administrative Agent for the sole account of the
Administrative Agent and the Arranger (unless otherwise agreed
between the Administrative Agent and the Arranger and any Lender)
the fees set forth in the letter agreement between the
Administrative Agent, the Arranger and the Company dated August [
], 2002, payable at the times and in the amounts set forth
therein.
(D) Interest and Fee Basis; Applicable Floating Rate
Margins, Applicable Eurodollar Margin, Applicable L/C Fee
Percentage and Applicable Commitment Fee Percentage.
(i) Interest on all fees, Eurodollar Rate Loans and
Alternate Base Rate Loans calculated by reference to the Federal
Fund Effective Rate shall be calculated for actual days elapsed
on the basis of a 360-day year; provided, that the Applicable L/C
Fee Percentage applicable to Letters of Credit issued in British
Pounds Sterling, if any, shall be calculated for actual days
elapsed on the basis of a 365-day year. Interest on all Alternate
Base Rate Loans calculated by reference to the Prime Rate shall
be calculated for actual days elapsed on the basis of a
365/366-day year. Interest shall be payable for the day an
Obligation is incurred but not for the day of any payment on the
amount paid if payment is received prior to 2:00 p.m. (Chicago
time or local time, as applicable) at the place of payment. If
any payment of principal of or interest on a Loan or any payment
of any other Obligations shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such
extension of
Sidley Xxxxxx Xxxxx & Xxxx
39
time shall be included in computing interest, fees and
commissions in connection with such payment.
(ii) The Applicable Floating Rate Margins, Applicable
Eurodollar Margin, Applicable L/C Fee Percentage and Applicable
Commitment Fee Percentage shall be determined from time to time
by reference to the table set forth below, on the basis of the
then applicable Leverage Ratio as described in this Section
2.14(D)(ii):
GREATER THAN OR GREATER THAN OR
EQUAL TO 1.00 EQUAL TO 1.50 TO GREATER THAN OR
LESS THAN 1.00 TO 1.00 AND LESS 1.00 BUT LESS EQUAL TO 2.00 TO
LEVERAGE RATIO TO 1.00 THAN 1.50 TO 1.00 THAN 2.00 TO 1.00 1.00
-----------------------------------------------------------------------------------------------------------------
Commitment Fee 0.30% 0.35% 0.40% 0.45%
-----------------------------------------------------------------------------------------------------------------
Applicable L/C Fee for
Performance Letters of
Credit 1.0000% 1.1667% 1.3333% 1.5000%
-----------------------------------------------------------------------------------------------------------------
Applicable L/C Fee for
Standby Letters of
Credit 1.50% 1.75% 2.00% 2.25%
-----------------------------------------------------------------------------------------------------------------
Applicable Eurodollar
Margin 1.50% 1.75% 2.00% 2.25%
-----------------------------------------------------------------------------------------------------------------
Applicable Floating
Rate Margin 0.25% 0.50% 0.75% 1.00%
-----------------------------------------------------------------------------------------------------------------
For purposes of this Section 2.15(D)(ii), the Leverage Ratio
shall be calculated as provided in Section 7.4(A). Upon receipt
of the financial statements delivered pursuant to Sections
7.1(A)(i) and (ii), as applicable, the Applicable Floating Rate
Margins, Applicable Eurodollar Margin, Applicable L/C Fee
Percentage and Applicable Commitment Fee Percentage shall be
adjusted, such adjustment being effective five (5) Business Days
following the date such financial statements and the compliance
certificate required to be delivered in connection therewith
pursuant to Section 7.1(A)(iii) shall be due; provided, that if
the Company shall not have timely delivered its financial
statements in accordance with Section 7.1(A)(i) or (ii), as
applicable, then commencing on the date upon which such financial
statements should have been delivered and continuing until five
(5) Business Days following the date such financial statements
are actually delivered, the Applicable Floating Rate Margins,
Applicable Eurodollar Margin, Applicable L/C Fee Percentage and
Applicable Commitment Fee Percentage shall be the maximum
Applicable Floating Rate Margins, Applicable Eurodollar Margin
and Applicable Commitment Fee
Sidley Xxxxxx Xxxxx & Xxxx
40
Percentage, as applicable, under the pricing grid set forth in
Section 2.14(D)(ii).
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder
(whether in respect of principal, interest, fees or otherwise)
shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges
or withholdings or any interest, penalties and liabilities with
respect thereto including those arising after the Closing Date as
a result of the adoption of or any change in any law, treaty,
rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application
thereof by a Governmental Authority but excluding, in the case of
each Lender and the Administrative Agent, such taxes (including
income taxes, franchise taxes and branch profit taxes) as are
imposed on or measured by such Lender's or the Administrative
Agent's, as the case may be, net income by the United States of
America or any Governmental Authority of the jurisdiction under
the laws of which such Lender or the Administrative Agent, as the
case may be, is organized (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which
the Administrative Agent or a Lender determines to be applicable
to this Agreement, the other Loan Documents, the Commitments, the
Loans or the Letters of Credit being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable
hereunder or under the other Loan Documents to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions or
withholdings (including deductions applicable to additional sums
payable under this Section 2.14(E)) such Lender or Administrative
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions or withholdings been
made, (ii) the applicable Borrower shall make such deductions or
withholdings, and (iii) the applicable Borrower shall pay the
full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law.
If a withholding tax of the United States of America or any other
Governmental Authority shall be or become applicable (y) after
the date of this Agreement, to such payments by the applicable
Borrower made to the Lending Installation or any other office
that a Lender may claim as its Lending Installation, or (z) after
such Lender's selection and designation of any other Lending
Installation, to such payments made to such other Lending
Installation, such Lender shall use reasonable efforts to make,
fund and maintain the affected Loans through another Lending
Installation of such Lender in another jurisdiction so as to
reduce the applicable Borrower's liability hereunder, if the
making, funding or maintenance of such Loans through such other
Lending Installation of such Lender does not, in the judgment of
such Lender, otherwise adversely affect such Loans, or
obligations under the Commitment of such Lender.
(ii) In addition, the Borrowers agree to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment
made hereunder, from the issuance of Letters of Credit hereunder,
or from the execution, delivery or registration of, or otherwise
with respect
Sidley Xxxxxx Xxxxx & Xxxx
41
to, this Agreement, the other Loan Documents, the Commitments,
the Loans or the Letters of Credit (hereinafter referred to as
"Other Taxes").
(iii) The Company and each Subsidiary Borrower shall
indemnify each Lender and the Administrative Agent for the full
amount of Taxes and Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any Governmental Authority on
amounts payable under this Section 2.14(E)) paid by such Lender
or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the
date such Lender or the Administrative Agent (as the case may be)
makes written demand therefor. If the Taxes or Other Taxes with
respect to which the Company or any Subsidiary Borrower has made
either a direct payment to the taxation or other authority or an
indemnification payment hereunder are subsequently refunded to
any Lender, such Lender will return to the applicable Borrower,
if no Event of Default has occurred and is continuing, an amount
equal to the lesser of the indemnification payment or the
refunded amount. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this
Section 2.14(E) submitted to the applicable Borrower and the
Administrative Agent (if a Lender is so submitting) by such
Lender or the Administrative Agent shall show in reasonable
detail the amount payable and the calculations used to determine
such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. With respect to
such deduction or withholding for or on account of any Taxes and
to confirm that all such Taxes have been paid to the appropriate
Governmental Authorities, the applicable Borrower shall promptly
(and in any event not later than thirty (30) days after receipt)
furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in
the reasonable judgment of such Lender or the Administrative
Agent) to establish any tax credit to which such Lender or the
Administrative Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment
of Taxes or Other Taxes by the Company or any Subsidiary
Borrower, the Company shall furnish to the Administrative Agent
the original or a certified copy of a receipt evidencing payment
thereof.
(v) Without prejudice to the survival of any other
agreement of the Company and the Subsidiary Borrowers hereunder,
the agreements and obligations of the Borrowers contained in this
Section 2.14(E) shall survive the payment in full of all
Obligations, the termination of the Letters of Credit and the
termination of this Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each
a "Non-U.S. Lender") shall deliver to the Company and the
Administrative Agent on or before the Closing Date, or, if later,
the date on which such Lender becomes a Lender pursuant to
Section 14.3 hereof (and from time to
Sidley Xxxxxx Xxxxx & Xxxx
42
time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S.
Lender is legally entitled to do so), either (1) two (2) duly
completed copies of either (A) IRS Form W-8BEN, or (B) IRS Form
W-8ECI, or in either case an applicable successor form; or (2) in
the case of a Non-U.S. Lender that is not legally entitled to
deliver the forms listed in clause (vi)(1), (x) a certificate of
a duly authorized officer of such Non-U.S. Lender to the effect
that such Non-U.S. Lender is not (A) a "bank" within the meaning
of Section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Company or any Subsidiary Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an "Exemption Certificate") and (y) two (2) duly
completed copies of IRS Form W-8BEN or applicable successor form.
Each such Lender further agrees to deliver to the Company and the
Administrative Agent from time to time a true and accurate
certificate executed in duplicate by a duly authorized officer of
such Lender in a form satisfactory to the Company and the
Administrative Agent, before or promptly upon the occurrence of
any event requiring a change in the most recent certificate
previously delivered by it to the Company and the Administrative
Agent pursuant to this Section 2.14(E)(vi). Further, each Lender
which delivers a form or certificate pursuant to this clause (vi)
covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the
expiration of such form, for so long as this Agreement is still
in effect, another such certificate and/or two (2) accurate and
complete original newly-signed copies of the applicable form (or
any successor form or forms required under the Code or the
applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be
reasonably required by any Borrower or the Administrative Agent
to establish any exemption from or reduction of any Taxes or
Other Taxes required to be deducted or withheld and which may be
obtained without undue expense to such Lender. Notwithstanding
any other provision of this Section 2.14(E), no Borrower shall be
obligated to gross up any payments to any Lender pursuant to
Section 2.14(E)(i), or to indemnify any Lender pursuant to
Section 2.14(E)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the
failure of such Lender to deliver to the Company the form or
forms and/or an Exemption Certificate, as applicable to such
Lender, pursuant to Section 2.14(E)(vi), (y) such form or forms
and/or Exemption Certificate not establishing a complete
exemption from U.S. federal withholding tax or the information or
certifications made therein by the Lender being untrue or
inaccurate on the date delivered in any material respect, or (z)
the Lender designating a successor Lending Installation at which
it maintains its Loans which has the effect of causing such
Lender to become obligated for tax payments in excess of those in
effect immediately prior to such designation; provided, however,
that the applicable Borrower shall be obligated to gross up any
payments to any such Lender pursuant to Section 2.14(E)(i), and
to indemnify any such Lender pursuant to Section 2.14(E)(iii), in
respect of United States federal withholding taxes if (i) any
such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or exemption
certificate to establish a complete exemption from U.S. federal
Sidley Xxxxxx Xxxxx & Xxxx
43
withholding tax or inaccuracy or untruth contained therein
resulted from a change in any applicable statute, treaty,
regulation or other applicable law or any interpretation of any
of the foregoing occurring after the Closing Date, which change
rendered such Lender no longer legally entitled to deliver such
form or forms or Exemption Certificate or otherwise ineligible
for a complete exemption from U.S. federal withholding tax, or
rendered the information or the certifications made in such form
or forms or Exemption Certificate untrue or inaccurate in any
material respect, (ii) the redesignation of the Lender's Lending
Installation was made at the request of the Company or (iii) the
obligation to gross up payments to any such Lender pursuant to
Section 2.14(E)(i), or to indemnify any such Lender pursuant to
Section 2.14(E)(iii), is with respect to a Purchaser that becomes
a Purchaser as a result of an assignment made at the request of
the Company.
(vii) Upon the request, and at the expense of the Company,
each Lender to which any Borrower is required to pay any
additional amount pursuant to this Section 2.14(E), shall
reasonably afford the applicable Borrower the opportunity to
contest, and shall reasonably cooperate with the applicable
Borrower in contesting, the imposition of any Tax giving rise to
such payment; provided, that (i) such Lender shall not be
required to afford the applicable Borrower the opportunity to so
contest unless the applicable Borrower shall have confirmed in
writing to such Lender its obligation to pay such amounts
pursuant to this Agreement; and (ii) the Company shall reimburse
such Lender for its reasonable attorneys' and accountants' fees
and disbursements incurred in so cooperating with the applicable
Borrower in contesting the imposition of such Tax.
2.15. Notification of Advances, Interest Rates, Prepayments
and Aggregate Commitment Reductions. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each Aggregate
Commitment reduction notice, Borrowing/Election Notice, and repayment notice
received by it hereunder. The Administrative Agent will notify the applicable
Borrower and each Lender of the interest rate applicable to each Eurodollar Rate
Loan promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.16. Lending Installations. Each Lender will book its Loans
or Letters of Credit at the appropriate Lending Installation listed on the
administrative information sheets provided to the Administrative Agent in
connection herewith or such other Lending Installation designated by such Lender
in accordance with the final sentence of this Section 2.16. All terms of this
Agreement shall apply to any such Lending Installation. Each Lender may, by
written or facsimile notice to the Administrative Agent and the Company,
designate a Lending Installation through which Loans will be made by it and for
whose account Loan payments and/or payments of L/C Obligations are to be made.
2.17. Non-Receipt of Funds by the Administrative Agent.
Unless a Borrower or a Lender, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of any Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not intend
to make such
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44
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the applicable Borrower, as the case may be, has
not in fact made such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in
the case of payment by a Borrower, the interest rate applicable to the relevant
Loan.
2.18. Termination Date. This Agreement shall be effective
until the Termination Date. Notwithstanding the termination of this Agreement,
until (A) all financing arrangements among the Borrowers and the Lenders shall
have been terminated and (B) all of the Letters of Credit shall have expired,
been cancelled or terminated, or cash collateralized pursuant to the terms of
this Agreement or supported by a letter of credit acceptable to the
Administrative Agent (collectively, the "Termination Conditions"), all of the
rights and remedies under this Agreement and the other Loan Documents shall
survive.
2.19. Replacement of Certain Lenders. In the event a Lender
("Affected Lender") shall have: (i) failed to fund its Applicable Pro Rata Share
of any Advance requested by the applicable Borrower, or to fund a Revolving Loan
in order to repay Swing Line Loans pursuant to Section 2.2(D), which such Lender
is obligated to fund under the terms of this Agreement and which failure has not
been cured, (ii) requested compensation from any Borrower under Sections
2.14(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other additional costs
incurred by such Lender which are not being incurred generally by the other
Lenders, (iii) delivered a notice pursuant to Section 4.3 claiming that such
Lender is unable to extend Eurodollar Rate Loans to any Borrower for reasons not
generally applicable to the other Lenders or (iv) has invoked Section 11.2;
then, in any such case, after engagement of one or more "Replacement Lenders"
(as defined below) by the Company and/or the Administrative Agent, the Company
or the Administrative Agent may make written demand on such Affected Lender
(with a copy to the Administrative Agent in the case of a demand by the Company
and a copy to the Company in the case of a demand by the Administrative Agent)
for the Affected Lender to assign, and such Affected Lender shall use
commercially reasonable efforts to assign pursuant to one or more duly executed
Assignment Agreements five (5) Business Days after the date of such demand, to
one or more financial institutions that comply with the provisions of Section
14.3(A) which the Company or the Administrative Agent, as the case may be, shall
have engaged for such purpose ("Replacement Lender"), all of such Affected
Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Commitment, all Loans owing to it,
all of its participation interests in existing Letters of Credit, L/C Drafts and
unreimbursed drawings under Letters of Credit, and its obligation to participate
in additional Letters of Credit and Swing Line Loans hereunder) in accordance
with Section 14.3. The Administrative Agent agrees, upon the occurrence of such
events with respect to an Affected Lender and upon the written request of the
Company, to use its reasonable efforts to obtain the commitments from one or
more financial institutions to act as a Replacement Lender. The Administrative
Agent is authorized to execute one or more of such assignment agreements
Sidley Xxxxxx Xxxxx & Xxxx
45
as attorney-in-fact for any Affected Lender failing to execute and deliver the
same within five (5) Business Days after the date of such demand. Further, with
respect to such assignment the Affected Lender shall have concurrently received,
in cash, all amounts due and owing to the Affected Lender hereunder or under any
other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
Sections 2.14(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under Section 2.14(C) in the event of any replacement of
any Affected Lender under clause (ii) or clause (iii) of this Section 2.19;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14(E), 4.1, 4.2, 4.4, and 11.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Section 12.8.
2.20. Subsidiary Borrowers. The Company may at any time or
from time to time, with the consent of the Administrative Agent add as a party
to this Agreement any Subsidiary to be a Subsidiary Borrower hereunder by the
execution and delivery to the Administrative Agent and the Lenders of (a) a duly
completed Assumption Letter by such Subsidiary, with the written consent of the
Company at the foot thereof, (b) such guaranty and subordinated intercompany
indebtedness documents as may be reasonably required by the Administrative Agent
and such other opinions, documents, certificates or other items as may be
required by Section 5.2, such documents with respect to any additional
Subsidiaries to be substantially similar in form and substance to the Loan
Documents executed on or about the Closing Date by the Subsidiaries parties
hereto as of the Closing Date. Upon such execution, delivery and consent such
Subsidiary shall for all purposes be a party hereto as a Subsidiary Borrower as
fully as if it had executed and delivered this Agreement. So long as the
principal of and interest on any Advances made to any Subsidiary Borrower under
this Agreement shall have been repaid or paid in full, all Letters of Credit
issued for the account of such Subsidiary Borrower have expired or been returned
and terminated and all other obligations of such Subsidiary Borrower under this
Agreement shall have been fully performed, the Company may, by not less than
five (5) Business Days' prior notice to the Administrative Agent (which shall
promptly notify the Lenders thereof), terminate such Subsidiary Borrower's
status as a "Subsidiary Borrower". The Administrative Agent shall give the
Lenders written notice of the addition of any Subsidiary Borrowers to this
Agreement.
2.21. Judgment Currency. If, for the purposes of obtaining
judgment in any court, it is necessary to convert a sum due from any Borrower
hereunder in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative
Agent could purchase the specified currency with such other currency at the
Administrative Agent's main office in Chicago, Illinois on the Business Day
preceding that on which the final, non-appealable judgment is given. The
obligations of each Borrower in respect of any sum due to any Lender, any
Issuing Bank or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day following receipt by such Lender, such
Issuing Bank or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in such other currency such Lender, such Issuing Bank or
the Administrative Agent (as the case may be) may in accordance
Sidley Xxxxxx Xxxxx & Xxxx
46
with normal, reasonable banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Lender, such Issuing Bank or the
Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to reimburse such
Lender, such Issuing Bank or the Administrative Agent, as the case may be, for
any such loss; and if no Default or Unmatured Default shall have occurred and is
continuing and the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Lender, any Issuing Bank or the Administrative Agent,
as the case may be, in the specified currency and (b) any amounts shared with
other Lenders as a result of allocations of such excess as a disproportionate
payment to such Lender or Issuing Bank under Section 14.2, such Lender, such
Issuing Bank or the Administrative Agent, as the case may be, agrees to remit
such excess to such Borrower.
2.22. Extension of Termination Date. The Company, on behalf
of itself and the other Borrowers, may request one-year extensions of the
Termination Date by submitting a request for an extension to the Administrative
Agent (each, an "Extension Request") no more than ninety (90) and no less than
thirty (30) days prior to each anniversary of the Effective Date, which
Extension Request shall specify (i) the new Termination Date requested by the
Borrowers, which shall be a date that is one year after the then effective
Termination Date and (ii) the date (which must be not more than thirty (30) days
nor less than fifteen (15) days prior to such anniversary of the Effective Date)
as of which the Lenders must respond to the Extension Request (the "Response
Date"). Promptly upon receipt of an Extension Request, the Administrative Agent
shall notify each Lender thereof and shall request each Lender to approve the
Extension Request. Each Lender approving the Extension Request shall deliver its
written consent no later than the Response Date (and the failure to provide such
written consent by such date shall be deemed to be a decision not to extend).
The Commitment of each Lender that declines to extend with respect to the
Aggregate Commitment may, at the option of the Company, be replaced in
accordance with Section 14.3 (but only to the extent a replacement Lender is
then available) or the Aggregate Commitment reduced. All Obligations due to each
Lender that declines to extend its Commitment under this Section 2.22 shall be
paid in full by the Borrowers to the Administrative Agent for the account of
each such Lender on the then effective Termination Date (without giving effect
to any such requested extension thereto). The Required Lenders and the Borrowers
must agree to any extension with respect to the Termination Date for any such
extension to become effective, and the Administrative Agent shall promptly
notify the Borrowers and each Lender of any new Termination Date.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1. Obligation to Issue Letters of Credit. Subject to the
terms and conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrowers herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary Borrower
through such Issuing Bank's branches as it and the Company may jointly agree,
one or more Letters of Credit denominated in an Agreed Currency in accordance
with this Article III, from time to time during the period, commencing on the
Closing Date and ending on the fifth (5th) Business Day prior to the Termination
Date; provided, however, if an Issuing Bank is requested to issue Letters of
Credit with respect to a jurisdiction such Issuing Bank deems, in its sole
discretion, may at any time subject it to a New Money
Sidley Xxxxxx Xxxxx & Xxxx
47
Credit Event, the Company shall, at the request of such Issuing Bank, guaranty
and indemnify such Issuing Bank against any and all costs, liabilities and
losses resulting from any New Money Credit Event in a form and substance
satisfactory to such Issuing Bank.
3.2. Transitional Provision. Subject to the satisfaction of
the conditions contained in Sections 5.1, 5.2, 5.3 and 5.4, from and after the
Effective Date each of the letters of credit identified on Schedule 3.2 hereto
and issued for the account of the Company and its Subsidiaries pursuant to the
Existing Credit Agreement (or deemed to be issued as of the Closing Date under
the Existing Credit Agreement) shall be deemed to be Letters of Credit issued
pursuant to this Article III.
3.3. Types and Amounts. No Issuing Bank shall have any
obligation to and no Issuing Bank shall:
(i) issue (or amend) any Letter of Credit if on the date of
issuance (or amendment), before or after giving effect to the
Letter of Credit requested hereunder, the Dollar Amount of the
Revolving Credit Obligations at such time would exceed the
Aggregate Commitment at such time (as such amount may be
increased from time to time as provided in Section 2.5(C))
calculated as of the date of issuance of any Letter of Credit; or
(ii) issue (or amend) any Letter of Credit which has an
expiration date later than the date which is five (5) Business
Days immediately preceding the Termination Date; provided, that
any Letter of Credit may provide for the renewal thereof for
additional periods (which in no event shall extend beyond the
fifth (5th) Business Day prior to the Termination Date).
3.4. Conditions. In addition to being subject to the
satisfaction of the conditions contained in Sections 5.1, 5.2, 5.3 and 5.4, the
obligation of an Issuing Bank to issue any Letter of Credit is subject to the
satisfaction in full of the following conditions:
(i) the applicable Borrower shall have delivered to the
applicable Issuing Bank (at such times and in such manner as such
Issuing Bank may reasonably prescribe) and the Administrative
Agent, a request for issuance of such Letter of Credit in
substantially the form of Exhibit C hereto, duly executed
applications for such Letter of Credit and such other documents,
instructions and agreements as may be required pursuant to the
terms thereof (all such applications, documents, instructions,
and agreements being referred to herein as the "L/C Documents"),
and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuing Bank as to form and content; and
(ii) as of the date of issuance no order, judgment or decree
of any court, arbitrator or Governmental Authority shall purport
by its terms to enjoin or restrain the applicable Issuing Bank
from issuing such Letter of Credit and no law, rule or regulation
applicable to such Issuing Bank and no request or directive
(whether or not having the force of law) from a Governmental
Authority with jurisdiction over such
Sidley Xxxxxx Xxxxx & Xxxx
48
Issuing Bank shall prohibit or request that such Issuing Bank
refrain from the issuance of Letters of Credit generally or the
issuance of that Letter of Credit.
3.5. Procedure for Issuance of Letters of Credit.
(A) Issuance. Subject to the terms and conditions of this
Article III and provided that the applicable conditions set forth
in Sections 5.1, 5.2, 5.3 and 5.4 hereof have been satisfied, the
applicable Issuing Bank shall, on the requested date, issue a
Letter of Credit on behalf of the Company or a Subsidiary Borrower,
as applicable in accordance with such Issuing Bank's usual and
customary business practices and, in this connection, such Issuing
Bank may assume that the applicable conditions set forth in Section
5.3 hereof have been satisfied unless it shall have received notice
to the contrary from the Administrative Agent or a Lender or has
knowledge that the applicable conditions have not been met. To the
extent that there shall be any conflict between the provisions of
any L/C Document and the provisions of this Agreement, the
provisions of this Agreement shall prevail.
(B) Notice. The applicable Issuing Bank shall give the
Administrative Agent written or telex notice, or telephonic notice
confirmed promptly thereafter in writing, of the issuance of a
Letter of Credit, provided, however, that the failure to provide
such notice shall not result in any liability on the part of such
Issuing Bank.
(C) No Amendment. No Issuing Bank shall extend or amend any
Letter of Credit unless the requirements of this Section 3.5 are
met as though a new Letter of Credit was being requested and
issued.
3.6. Letter of Credit Participation. On the date of this
Agreement, with respect to the Letters of Credit identified in Section 3.2, and
immediately upon the issuance of each Letter of Credit hereunder, each Lender
shall be deemed to have automatically, irrevocably and unconditionally purchased
and received from the applicable Issuing Bank an undivided interest and
participation in and to such Letter of Credit, the obligations of the applicable
Borrower in respect thereof, and the liability of such Issuing Bank thereunder
(collectively, an "L/C Interest") in an amount equal to the Dollar Amount
available for drawing under such Letter of Credit multiplied by such Lender's
Pro Rata Share. Each Issuing Bank will notify the Administrative Agent and each
Lender promptly upon presentation to it of an L/C Draft or upon any other draw
under a Letter of Credit, which notice shall also state the Agreed Currency and
face amount of such L/C Draft or other draw. On or before the Business Day on
which an Issuing Bank makes payment of each such L/C Draft or, in the case of
any other draw on a Letter of Credit, on demand by the Administrative Agent or
the applicable Issuing Bank, each Lender shall make payment to the
Administrative Agent, for the account of the applicable Issuing Bank, in
immediately available funds in Dollars in an amount equal to such Lender's Pro
Rata Share of the Dollar Amount of such payment or draw. The obligation of each
Lender to reimburse the Issuing Banks under this Section 3.6 shall be
unconditional, continuing, irrevocable and absolute. In the event that any
Lender fails to make payment to the Administrative Agent of any amount due under
this Section 3.6, the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent receives such payment
from such Lender or such obligation is
Sidley Xxxxxx Xxxxx & Xxxx
49
otherwise fully satisfied; provided, however, that nothing contained in this
sentence shall relieve such Lender of its obligation to reimburse the applicable
Issuing Bank for such amount in accordance with this Section 3.6.
3.7. Reimbursement Obligation. Each of the Borrowers agree
unconditionally, irrevocably and absolutely to pay immediately to the
Administrative Agent, for the account of the Lenders, the amount of each advance
drawn under or pursuant to a Letter of Credit issued to it or an L/C Draft
related thereto (such obligation of such Borrower to reimburse the
Administrative Agent for an advance made under a Letter of Credit or L/C Draft
being hereinafter referred to as a "Reimbursement Obligation" with respect to
such Letter of Credit or L/C Draft), each such reimbursement to be made by the
applicable Borrower no later than the Business Day on which the applicable
Issuing Bank makes payment of each such L/C Draft or, if the applicable Borrower
shall have received notice of a Reimbursement Obligation later than 12:00 p.m.
(Chicago time), on any Business Day or on a day which is not a Business Day, no
later than 12:00 p.m. (Chicago time), on the immediately following Business Day
or, in the case of any other draw on a Letter of Credit, the date specified in
the demand of such Issuing Bank. If any Borrower at any time fails to repay a
Reimbursement Obligation at the time specified in the preceding sentence, such
unpaid Reimbursement Obligation shall at that time be automatically converted
into an obligation denominated in Dollars and such Borrower shall be deemed to
have elected to borrow Revolving Loans from the Lenders, as of the date of the
advance giving rise to the Reimbursement Obligation, equal in amount to the
Dollar Amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall
be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an Advance of Revolving Loans.
Such Revolving Loans shall constitute a Floating Rate Advance, the proceeds of
which Advance shall be used to repay such Reimbursement Obligation. If, for any
reason, any Borrower fails to repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason, the Lenders are unable to
make or have no obligation to make Revolving Loans, then such Reimbursement
Obligation shall bear interest from and after such day, until paid in full, at
the interest rate applicable to a Floating Rate Advance (or, in the case of a
Reimbursement Obligation denominated in an Agreed Currency other than Dollars,
at the rate determined by the applicable Issuing Bank in good faith to represent
such Issuing Bank's cost of overnight or short-term funds in the applicable
Agreed Currency plus the then effective Applicable Eurodollar Margin). The
Borrowers agree to indemnify each Issuing Bank against any loss or expense
determined by such Issuing Bank in good faith to have resulted from any
conversion pursuant to this Section 3.7 by reason of the inability of such
Issuing Bank to convert the Dollar Amount received from the applicable Borrower
or from the Lenders, as applicable, into an amount in the applicable Agreed
Currency of such Letter of Credit equal to the amount of such Reimbursement
Obligation.
3.8. Letter of Credit Fees. The Borrowers agree to pay:
(i) quarterly, in arrears, to the Administrative Agent for
the ratable benefit of the Lenders, a letter of credit fee at a
rate per annum equal to the Applicable L/C Fee Percentage for
Performance Letters of Credit and Standby Letters of Credit, as
applicable, on the average daily outstanding Dollar Amount
available for drawing under all Performance Letters of Credit and
Standby Letters of Credit, respectively;
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50
(ii) quarterly, in arrears, to the applicable Issuing Bank,
a letter of credit fronting fee equal to 0.125% per annum on the
average daily outstanding stated amount available for drawing
under all Letters of Credit issued by such Issuing Bank; and
(iii) to the applicable Issuing Bank, all customary fees and
other issuance, amendment, cancellation, document examination,
negotiation, transfer and presentment expenses and related
charges in connection with the issuance, amendment, cancellation,
presentation of L/C Drafts, negotiation, transfer and the like
customarily charged by such Issuing Banks with respect to
standby, performance and commercial letters of credit, including,
without limitation, standard commissions with respect to
Performance Letters of Credit, payable at the time of invoice of
such amounts.
3.9. Borrower and Issuing Bank Reporting Requirements. The
Company shall, at any time as requested by the Administrative Agent or the
Required Lenders but in any event no later than the tenth Business Day following
the last day of each month, provide to the Administrative Agent schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, Agreed Currency and amount in such Agreed
Currency, Issuing Bank, expiration date and the reference number of each Letter
of Credit issued hereunder outstanding at any time during such month. In
addition to the notices required by Section 3.5(B), each Issuing Bank shall, at
any time as requested by the Administrative Agent or the Required Lenders but in
any event no later than the tenth Business Day following the last day of each
month, provide to the Administrative Agent schedules, in form and substance
reasonably satisfactory to the Administrative Agent, showing the date of issue,
account party, Agreed Currency and amount in such Agreed Currency, expiration
date and the reference number of each Letter of Credit issued by it outstanding
at any time during such month and the aggregate amount payable by the applicable
Borrower during such month. In addition, upon the request of the Administrative
Agent, each Issuing Bank shall furnish to the Administrative Agent copies of any
Letter of Credit and any application for or reimbursement agreement with respect
to a Letter of Credit to which the Issuing Bank is party and such other
documentation as may reasonably be requested by the Administrative Agent. Upon
the request of any Lender, the Administrative Agent will provide to such Lender
information concerning such Letters of Credit as the Administrative Agent has
received from the Issuing Banks.
3.10. Indemnification; Exoneration.
(A) Indemnification. In addition to amounts payable as
elsewhere provided in this Article III, each Borrower hereby agrees
to protect, indemnify, pay and save harmless the Administrative
Agent, each Issuing Bank and each Lender from and against any and
all liabilities and costs which the Administrative Agent, such
Issuing Bank or such Lender may incur or be subject to in any way
directly connected with (i) the issuance of any Letter of Credit
other than, in the case of the applicable Issuing Bank, as a result
of its Gross Negligence or willful misconduct, as determined by the
final judgment of a court of competent jurisdiction, or (ii) the
failure of the applicable Issuing Bank to honor a drawing under a
Letter of Credit as a result of any act or omission,
Sidley Xxxxxx Xxxxx & Xxxx
51
whether rightful or wrongful, of any present or future de jure or
de facto Governmental Authority (all such acts or omissions herein
called "Governmental Acts").
(B) Risk Assumption. As among the Borrowers, the Lenders,
the Administrative Agent and the Issuing Banks, the Borrowers
assume all risks of the acts and omissions of, or misuse of such
Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit applications and Letter of
Credit reimbursement agreements executed by the Borrowers at the
time of request for any Letter of Credit, neither the
Administrative Agent, any Issuing Bank nor any Lender shall be
responsible (in the absence of Gross Negligence or willful
misconduct in connection therewith, as determined by the final
judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application
for and issuance of the Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii)
for failure of the beneficiary of a Letter of Credit to comply duly
with conditions required in order to draw upon such Letter of
Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex, or other similar form of teletransmission or
otherwise; (v) for errors in interpretation of technical trade
terms; (vi) for any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any
Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Banks and the Lenders, including,
without limitation, any Governmental Acts. None of the above shall
affect, impair, or prevent the vesting of any Issuing Bank's rights
or powers under this Section 3.10.
(C) No Liability. In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any
action taken or omitted by any Issuing Bank under or in connection
with the Letters of Credit or any related certificates shall not,
in the absence of Gross Negligence or willful misconduct, as
determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Administrative
Agent or any Lender under any resulting liability to any Borrower
or relieve any Borrower of any of its obligations hereunder to any
such Person.
(D) Survival of Agreements and Obligations. Without
prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Borrowers
contained in this Section 3.10 shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of
Credit and the termination of this Agreement.
3.11. Market Disruption. Notwithstanding the satisfaction of
all conditions referred to in Article II, Article III and Article V with respect
to any Letter of Credit to be issued
Sidley Xxxxxx Xxxxx & Xxxx
52
in any Agreed Currency other than Dollars, if there shall occur on or prior to
the date of issuance of such Letter of Credit any Market Disruption, then the
Administrative Agent shall forthwith give notice thereof to the Borrowers, the
Issuing Bank and the Lenders, and such Letter of Credit shall not be denominated
in such Agreed Currency but shall be made on the date of issuance of such Letter
of Credit in Dollars, in a face amount equal to the Dollar Amount of the face
amount specified in the related request or application for such Letter of
Credit, unless the Borrower notifies the Administrative Agent at least one
Business Day before such date that (i) it elects not to request the issuance of
such Letter of Credit on such date or (ii) it elects to have such Letter of
Credit issued on such date in a different Agreed Currency, as the case may be,
in which the denomination of such Letter of Credit would in the opinion of the
applicable Issuing Bank, the Administrative Agent and the Required Lenders be
practicable and in a face amount equal to the Dollar Amount of the face amount
specified in the related request or application for such Letter of Credit, as
the case may be.
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1. Yield Protection.
(A) Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) adopted after the date of
this Agreement and having general applicability to all banks within
the jurisdiction in which such Lender operates (excluding, for the
avoidance of doubt, the effect of and phasing in of capital
requirements or other regulations or guidelines passed prior to the
date of this Agreement), or any interpretation or application
thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any
Lender therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from
payments due from any Borrower (excluding taxation of the overall
net income of any Lender or taxation of a similar basis, which
are governed by Section 2.14(E)), or changes the basis of
taxation of payments to any Lender in respect of its Commitment,
Loans, its L/C Interests, the Letters of Credit or other amounts
due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar
Rate Loans) with respect to its Commitment, Loans, L/C Interests,
Loans or the Letters of Credit, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining its Commitment,
the Loans, the L/C Interests or the Letters of Credit or reduces
any amount receivable by any Lender or any applicable Lending
Installation in connection with its Commitment, Loans or Letters
of Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference
Sidley Xxxxxx Xxxxx & Xxxx
53
to the amount of Commitment, Loans or L/C Interests held or
interest received by it or by reference to the Letters of Credit,
by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to
that Lender of making, renewing or maintaining its Commitment,
Loans, L/C Interests, or Letters of Credit or to reduce any amount
received under this Agreement, then, within fifteen (15) days after
receipt by the Company or any other Borrower of written demand by
such Lender pursuant to Section 4.5, the applicable Borrowers shall
pay such Lender that portion of such increased expense incurred or
reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans, L/C
Interests, Letters of Credit and its Commitment.
(B) Non-U.S. Reserve Costs or Fees With Respect to Loans
and Letters of Credit to Borrowers. If any law or any governmental
or quasi-governmental rule, regulation, policy, guideline or
directive of any jurisdiction outside of the United States of
America or any subdivision thereof (whether or not having the force
of law), imposes or deems applicable any reserve requirement
against or fee with respect to assets of, deposits with or for the
account of, or credit extended by, any Lender, any Issuing Bank or
any applicable Lending Installation, and the result of the
foregoing is to increase the cost to such Lender, such Issuing Bank
or applicable Lending Installation of making or maintaining its
Eurodollar Loans to, or issuing a Letter of Credit in an Agreed
Currency other than Dollars for the benefit of, any Borrower or its
Commitment to any Borrower or to reduce the return received by such
Lender, such Issuing Bank or applicable Lending Installation in
connection with such Eurodollar Loans or Letters of Credit to or
for the benefit of any Borrower or Commitment to any Borrower,
then, within 15 days of demand by such Lender or such Issuing Bank,
such Borrower shall pay such Lender or such Issuing Bank, as
applicable, such additional amount or amounts as will compensate
such Lender or such Issuing Bank for such increased cost or
reduction in amount received, provided that such Borrower shall not
be required to compensate any Lender for such non-U.S. reserve
costs or fees to the extent that an amount equal to such reserve
costs or fees is received by such Lender as a result of the
calculation of the interest rate applicable to Eurodollar Rate
Advances pursuant to clause (i)(b) of the definition of "Eurodollar
Rate."
4.2. Changes in Capital Adequacy Regulations. If a Lender
determines (i) the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a "Change" (as defined
below), and (ii) such increase in capital will result in an increase in the cost
to such Lender of maintaining its Commitment, Loans, L/C Interests, the Letters
of Credit or its obligation to make Loans hereunder, then, within fifteen (15)
days after receipt by the Company or any other Borrower of written demand by
such Lender pursuant to Section 4.5, the applicable Borrowers shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Commitment, its Loans, its L/C Interests,
the Letters of Credit or its obligation to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "Change" means (i)
any change after the date of this
Sidley Xxxxxx Xxxxx & Xxxx
54
Agreement in the "Risk-Based Capital Guidelines" (as defined below) excluding,
for the avoidance of doubt, the effect of any phasing in of such Risk-Based
Capital Guidelines or any other capital requirements passed prior to the Closing
Date, or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
4.3. Availability of Types of Advances. If (i) any Lender
determines that maintenance of its Eurodollar Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type or maturity appropriate to match fund Eurodollar
Rate Loans are not available or (y) the interest rate applicable to a Eurodollar
Rate Loan does not accurately reflect the cost of making or maintaining such an
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and, in the case of any occurrence set forth in clause
(i), require any Advances of the affected Type to be repaid or converted into
another Type.
4.4. Funding Indemnification. If any payment of a Eurodollar
Rate Loan occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment (whether voluntary or
mandatory, including, without limitation as required pursuant to Section
2.4(B)), or otherwise (including, without limitation, as a result of the
provisions of Section 2.5(B)), or a Eurodollar Rate Loan is not made on the date
specified by the applicable Borrower for any reason other than default by the
Lenders, or a Eurodollar Rate Loan is not prepaid on the date specified by the
applicable Borrower for any reason, the Borrowers indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain the Eurodollar Rate Loan.
4.5. Lender Statements; Survival of Indemnity. If reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Rate Loan to reduce any liability of any Borrower to
such Lender under Sections 4.1 and 4.2 or to avoid the unavailability of a Type
of Advance under Section 4.3, so long as such designation is not, in the
judgment of the Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Company (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 2.14(E), 4.1,
4.2 or 4.4 and shall set forth in reasonable detail the calculations upon which
such Lender determined such amount and shall be prima facie evidence thereof and
binding on the Borrowers in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Rate Loan
shall be calculated as though each Lender funded its Eurodollar Rate Loan
through the purchase of a
Sidley Xxxxxx Xxxxx & Xxxx
55
deposit of the type and maturity corresponding to the deposit used as a
reference in determining the Eurodollar Rate applicable to such Loan, whether in
fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the applicable Borrower of such statement. The obligations of
the Company and the other Borrowers under Sections 2.14(E), 4.1, 4.2 and 4.4
shall survive payment of the Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1. Initial Advances and Letters of Credit. The Borrowers
hereby confirm that on or prior to the Closing Date, the Borrowers furnished to
the Administrative Agent each of the following, with sufficient copies for the
Lenders, all in form and substance satisfactory to the Administrative Agent and
the Lenders:
(i) Copies, certified by the Secretary or Assistant
Secretary of each of the Borrowers of their respective Board of
Directors' resolutions (and resolutions of other bodies, if any
are deemed necessary by counsel for any Lender) authorizing the
execution of the Loan Documents entered into by it;
(ii) The written opinions of the Borrowers' and Guarantors'
counsel, addressed to the Administrative Agent and the Lenders;
(iii) Duly executed copy of the Subsidiary Guaranty and the
364-Day Credit Agreement dated as of August 29, 2001;
(iv) Evidence satisfactory to the Administrative Agent that
the Company has paid or caused to be paid to the Administrative
Agent and the Arranger the fees agreed to in the fee letter dated
August 2, 2001, among the Administrative Agent, the Arranger and
the Company.
5.2. Initial Advance to Each New Subsidiary Borrower. No
Lender shall be required to make an Advance hereunder or purchase participations
in Letters of Credit, no Issuing Bank shall be required to issue a Letter of
Credit hereunder, in each case, to a new Subsidiary Borrower added after the
Closing Date unless the Company has furnished or caused to be furnished to the
Administrative Agent with sufficient copies for the Lenders:
(i) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written consent of the
Company at the foot thereof, as contemplated by Section 2.20;
(ii) Copies, certified by the Secretary, Assistant
Secretary, Director or Officer of the Subsidiary Borrower, of its
Board of Directors' resolutions (and/or resolutions of other
bodies, if any are deemed necessary by the Administrative Agent)
approving the Assumption Letter;
(iii) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Officer of the Subsidiary
Borrower, which shall identify by name and title and bear the
signature of the officers of such Subsidiary Borrower authorized
to sign
Sidley Xxxxxx Xxxxx & Xxxx
56
the Assumption Letter and the other documents to be executed and
delivered by such Subsidiary Borrower hereunder, upon which
certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by the
Company;
(iv) An opinion of counsel to such Subsidiary Borrower,
substantially in the form of Exhibit E-2 hereto or, in the case
of a new non-domestic Subsidiary Borrower, in a form reasonably
acceptable to the Administrative Agent;
(v) Guaranty documentation, if applicable, from such
Subsidiary Borrower in form and substance acceptable to the
Administrative Agent as required pursuant to Section 7.2(K);
(vi) With respect to the initial Advance or any Swing Line
Loan made to any Subsidiary Borrower organized under the laws of
England and Wales (or any other jurisdiction where filings are
required in order for amounts payable under this Agreement to be
exempt from applicable withholding or other taxes), the
Administrative Agent shall have received originals and/or copies,
as applicable, of all filings required to be made and such other
evidence as the Administrative Agent may require establishing to
the Administrative Agent's satisfaction that each Lender, Swing
Line Bank and Issuing Bank is entitled to receive payments under
the Loan Documents without deduction or withholding of any
English (or other applicable jurisdictions) taxes or with such
deductions and withholding of English (or other applicable
jurisdictions) taxes as may be acceptable to the Administrative
Agent.
5.3. Each Advance and Letter of Credit. The Lenders shall
not be required to make any Advance, or convert or continue any Advance, or
issue any Letter of Credit and no Swing Line Bank shall be required to make any
Swing Line Loans hereunder, unless on the applicable Borrowing Date, or in the
case of a Letter of Credit, the date on which the Letter of Credit is to be
issued:
(A) No Defaults. There exists no Default or Unmatured
Default;
(B) Representations and Warranties. All of the
representations and warranties contained in Article VI are true and
correct as of such Borrowing Date (unless such representation and
warranty is made as of a specific date, in which case, such
representation and warranty shall be true and correct as of such
date) except for changes in the Schedules to this Agreement
reflecting transactions permitted by or not in violation of this
Agreement; and
(C) Maximum Amounts. The Revolving Credit Obligations do
not, and after making such proposed Advance or issuing such Letter
of Credit would not, exceed the Aggregate Commitment.
Each Borrowing/Election Notice with respect to each such Advance
and the letter of credit application with respect to each Letter of Credit shall
constitute a representation and warranty by the Borrowers that the conditions
contained in Sections 5.3(A), (B) and (C) have been satisfied. Any Lender may
require a duly completed officer's certificate in substantially the
Sidley Xxxxxx Xxxxx & Xxxx
57
form of Exhibit F hereto and/or a duly completed compliance certificate in
substantially the form of Exhibit G hereto as a condition to making an Advance.
5.4. Effectiveness of this Agreement. The Lenders shall not
be required to make any Loans hereunder, the Swing Line Bank shall not be
required to make any Swing Line Loans hereunder, and this Agreement shall not
become effective, unless the Administrative Agent shall have received each of
the following (with sufficient copies for the Lenders):
(i) Duly executed signature pages to this Agreement from
the Borrowers, the Lenders, and the Administrative Agent;
(ii) Copies, certified by the Secretary or Assistant
Secretary of each of the Borrowers of their respective Board of
Directors' resolutions (and resolutions of other bodies, if any
are deemed necessary by counsel for any Lender) authorizing the
execution of this Agreement;
(iii) Written opinion letters of the Borrowers' counsel,
addressed to the Administrative Agent and the Lenders, in
substantially the form of the opinion letters delivered by
Borrowers' and the Guarantors' counsel on the Closing Date
pursuant to Section 5.1(v);
(iv) Duly executed copy of the 364-Day Credit Agreement;
(v) Duly executed copy of the Reaffirmation attached hereto
as Attachment A from each of the parties to the Subsidiary
Guaranty;
(vi) A certificate, in form and substance satisfactory to
the Administrative Agent, signed by an Authorized Officer of the
Company, certifying that on the date of this Agreement all the
representations in this Agreement are true and correct (unless
such representation and warranty is made as of a specific date,
in which case, such representation and warranty shall be true and
correct as of such date) and no Default or Unmatured Default has
occurred and is continuing;
(vii) Evidence satisfactory to the Administrative Agent that
the Company has paid or caused to be paid to the Administrative
Agent and the Arranger the fees agreed to in the fee letter dated
August [__], 2002, among the Administrative Agent, the Arranger
and the Company; and
(viii) Such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to
enter into this Agreement and to make the Loans and the other financial
accommodations to the Borrowers and to issue the Letters of Credit described
herein, the Company represents and warrants as follows to each Lender and the
Administrative Agent as of the Closing Date, giving effect to the
Sidley Xxxxxx Xxxxx & Xxxx
58
consummation of the transactions contemplated by the Transaction Documents on
the Closing Date, and thereafter on each date as required by Section 5.2, 5.3
and 5.4:
6.1. Organization; Corporate Powers. The Company and each of
its Subsidiaries (i) is a corporation, limited liability company, partnership
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified to do business as a
foreign entity and is in good standing under the laws of each jurisdiction in
which failure to be so qualified and in good standing could not reasonably be
expected to have a Material Adverse Effect, and (iii) has all requisite power
and authority to own, operate and encumber its property and to conduct its
business as presently conducted and as proposed to be conducted
6.2. Authority, Execution and Delivery; Transaction
Documents.
(A) Power and Authority. Each of the Loan Parties has the
requisite power and authority to execute, deliver and perform each
of the Transaction Documents which are to be executed by it as
required by this Agreement and the other Transaction Documents and
(ii) to file the Transaction Documents which must be filed by it as
required by this Agreement, the other Loan Documents or otherwise
with any Governmental Authority.
(B) Execution and Delivery. The execution, delivery,
performance and filing, as the case may be, of each of the
Transaction Documents as required by this Agreement or otherwise
and to which any Loan Party is party, and the consummation of the
transactions contemplated thereby, have been duly approved by the
respective boards of directors and, if necessary, the shareholders
of the applicable Loan Parties, and such approvals have not been
rescinded.
(C) Transaction Documents. Each of the Transaction
Documents to which the Company or any of its Subsidiaries is a
party has been duly executed, delivered or filed, as the case may
be, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally), is
in full force and effect and no material term or condition thereof
has been amended, modified or waived from the terms and conditions
contained in the Transaction Documents delivered to the
Administrative Agent pursuant to Section 5.1 without the prior
written consent of the Administrative Agent, and the Company and
its Subsidiaries have, and, to the best of the Company's and its
Subsidiaries' knowledge, all other parties thereto have, performed
and complied with all the terms, provisions, agreements and
conditions set forth therein and required to be performed or
complied with by such parties, and no unmatured default, default or
breach of any covenant by any such party exists thereunder.
6.3. No Conflict; Governmental Consents. The execution,
delivery and performance of each of the Transaction Documents to which each of
the Loan Parties is a party do not and will not (i) conflict with the
certificate or articles of incorporation or by-laws of such Loan Party, (ii)
constitute a tortious interference with any Contractual Obligation of any Person
Sidley Xxxxxx Xxxxx & Xxxx
59
or conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any Requirement of Law or Contractual
Obligation of any such Loan Party, or require termination of any Contractual
Obligation, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the property or assets of the Company or any of its
Subsidiaries, other than Liens permitted or created by the Transaction
Documents, or (iv) require any approval of any Loan Party's Board of Directors
or shareholders except such as have been obtained. The execution, delivery and
performance of each of the Transaction Documents to which the Company or any of
its Subsidiaries is a party do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any
Governmental Authority, except filings, consents or notices which have been
made, obtained or given, or which, if not made, obtained or given, individually
or in the aggregate could not reasonably be expected to have a Material Adverse
Effect.
6.4. Financial Statements.
(A) Pro Forma Financials. The combined pro forma balance
sheet, income statements and statements of cash flow of the Company
and its Subsidiaries (after giving effect to the H-B Acquisition),
copies of which are attached hereto as Schedule 6.4 to this
Agreement, present on a pro forma basis the financial condition of
the Company and such Subsidiaries as of such date, and demonstrate
that the Company and its Subsidiaries can repay their debts and
satisfy their other obligations as and when due, and can comply
with the requirements of this Agreement. The projections and
assumptions expressed in the pro forma financials referenced in
this Section 6.4(A) were prepared in good faith and represent
management's opinion based on the information available to the
Company at the time so furnished and, since the preparation thereof
and up to the Closing Date, there has occurred no change in the
business, financial condition, operations, or prospects of the
Company or any of its Subsidiaries, or the Company and its
Subsidiaries taken as a whole, or Xxxx-Xxxxx or Xxxx-Xxxxx and its
Subsidiaries taken as a whole which has had or could reasonably be
expected to have a Material Adverse Effect.
(B) Audited Financial Statements. Complete and accurate
copies of the audited financial statements and the audit reports
related thereto of the Company and its consolidated Subsidiaries as
at December 31, 2001 have been delivered to the Administrative
Agent and such financial statements were prepared in accordance
with generally accepted accounting principles in effect on the date
such statements were prepared and fairly present the consolidated
financial condition and operations of the Company and its
Subsidiaries at such date and the consolidated results of their
operations for the period then ended.
(C) Interim Financial Statements. Complete and accurate
copies of the unaudited financial statements of the Company and its
consolidated Subsidiaries as at June 30, 2002 have been delivered
to the Administrative Agent and such financial statements were
prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations
of the Company and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended,
subject to normal year-end audit adjustments.
Sidley Xxxxxx Xxxxx & Xxxx
60
6.5. No Material Adverse Change. Since December 31, 2001,
there has occurred no change in the business, properties, condition (financial
or otherwise), performance, results of operations or prospects of the Company,
any other Borrower or the Company and its Subsidiaries taken as a whole, or any
other event which has had or could reasonably be expected to have a Material
Adverse Effect.
6.6. Taxes.
(A) Tax Examinations. All deficiencies which have been
asserted against the Company or any of the Company's Subsidiaries
as a result of any federal, state, local or foreign tax examination
for each taxable year in respect of which an examination has been
conducted have been fully paid or finally settled or are being
contested in good faith, and no issue has been raised by any taxing
authority in any such examination which, by application of similar
principles, could reasonably be expected to result in assertion by
such taxing authority of a material deficiency for any other year
not so examined which has not been reserved for in the Company's
consolidated financial statements to the extent, if any, required
by Agreement Accounting Principles. Except as permitted pursuant to
Section 7.2(D), neither the Company nor any of the Company's
Subsidiaries anticipates any tax liability with respect to the
years which have not been closed pursuant to applicable law.
(B) Payment of Taxes. All material tax returns and reports
of the Company and its Subsidiaries required to be filed have been
timely filed, and all taxes, assessments, fees and other
governmental charges thereupon and upon their respective property,
assets, income and franchises which are shown in such returns or
reports to be due and payable have been paid except those items
which are being contested in good faith and have been reserved for
in accordance with Agreement Accounting Principles. The Company has
no knowledge of any proposed tax assessment against it or any of
its Subsidiaries that will have or could reasonably be expected to
have a Material Adverse Effect.
6.7. Litigation; Loss Contingencies and Violations. There is
no action, suit, proceeding, arbitration or, to the Company's knowledge,
investigation before or by any Governmental Authority or private arbitrator
pending or, to the Company's knowledge, threatened against or affecting the
Company or any of its Subsidiaries or any property of any of them, including,
without limitation, any such actions, suits, proceedings, arbitrations and
investigations disclosed in the Company's SEC Forms 10-K and 10-Q (the
"Disclosed Litigation"), which (i) challenges the validity or the enforceability
of any material provision of the Transaction Documents or (ii) has or could
reasonably be expected to have a Material Adverse Effect. There is no material
loss contingency within the meaning of Agreement Accounting Principles which has
not been reflected in the consolidated financial statements of the Company
prepared and delivered pursuant to Section 7.1(A) for the fiscal period during
which such material loss contingency was incurred. Neither the Company nor any
of its Subsidiaries is (A) in violation of any applicable Requirements of Law
which violation could reasonably be expected to have a Material Adverse Effect,
or (B) subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or regulation
of any court or Governmental Authority which could reasonably be expected to
have a Material Adverse Effect.
Sidley Xxxxxx Xxxxx & Xxxx
61
6.8. Subsidiaries. Schedule 6.8 to this Agreement (i)
contains a description of the corporate structure of the Company, its
Subsidiaries and any other Person in which the Company or any of its
Subsidiaries holds an Equity Interest; and (ii) accurately sets forth (A) the
correct legal name, the jurisdiction of incorporation and the jurisdictions in
which each of the Company and the direct and indirect Subsidiaries of the
Company are qualified to transact business as a foreign corporation, (B) the
authorized, issued and outstanding shares of each class of Capital Stock of each
of the Company's Foreign Subsidiaries and the owners of such shares (both as of
the Closing Date and on a fully-diluted basis), and (C) a summary of the direct
and indirect partnership, joint venture, or other Equity Interests, if any, of
the Company and each of its Subsidiaries in any Person. Except as disclosed on
Schedule 6.8, none of the issued and outstanding Capital Stock of the Company's
Foreign Subsidiaries is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options outstanding with respect to such
Capital Stock. The outstanding Capital Stock of each of the Company's
Subsidiaries is duly authorized, validly issued, fully paid and nonassessable
and is not Margin Stock.
6.9. ERISA. No Benefit Plan has incurred any material
accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and
412(a) of the Code) whether or not waived. Neither the Company nor any member of
the Controlled Group has incurred any material liability to the PBGC which
remains outstanding other than the payment of premiums. As of the last day of
the most recent prior plan year, the market value of assets under each Benefit
Plan, other than any Multiemployer Plan, was not by a material amount less than
the present value of benefit liabilities thereunder (determined in accordance
with the actuarial valuation assumptions described therein). Neither the Company
nor any member of the Controlled Group has (i) failed to make a required
contribution or payment to a Multiemployer Plan of a material amount or (ii)
incurred a material complete or partial withdrawal under Section 4203 or Section
4205 of ERISA from a Multiemployer Plan. Neither the Company nor any member of
the Controlled Group has failed to make an installment or any other payment of a
material amount required under Section 412 of the Code on or before the due date
for such installment or other payment. Each Plan, Foreign Employee Benefit Plan
and Non-ERISA Commitment complies in all material respects in form, and has been
administered in all material respects in accordance with its terms and in
accordance with all applicable laws and regulations, including but not limited
to ERISA and the Code. There have been no and there is no prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code with respect to any Plan
for which a statutory or administrative exemption does not exist which could
reasonably be expected to subject the Company or any of is Subsidiaries to
material liability. Neither the Company nor any member of the Controlled Group
has taken or failed to take any action which would constitute or result in a
Termination Event, which action or inaction could reasonably be expected to
subject the Company or any of its Subsidiaries to material liability. Neither
the Company nor any member of the Controlled Group is subject to any material
liability under, or has any potential material liability under, Section 4063,
4064, 4069, 4204 or 4212(c) of ERISA. The present value of the aggregate
liabilities to provide all of the accrued benefits under any Foreign Pension
Plan do not exceed the current fair market value of the assets held in trust or
other funding vehicle for such plan by a material amount. With respect to any
Foreign Employee Benefit Plan other than a Foreign Pension Plan, reasonable
reserves have been established in accordance with prudent business practice or
where required by ordinary accounting practices in the jurisdiction in which
such plan is maintained. Neither the Company nor any other member of
Sidley Xxxxxx Xxxxx & Xxxx
62
the Controlled Group has taken or failed to take any action, nor has any event
occurred, with respect to any "employee benefit plan" (as defined in Section
3(3) of ERISA) which action, inaction or event could reasonably be expected to
subject the Company or any of its Subsidiaries to material liability. For
purposes of this Section 6.9, "material" means any amount, noncompliance or
other basis for liability which could reasonably be expected to subject the
Company or any of its Subsidiaries to liability, individually or in the
aggregate with each other basis for liability under this Section 6.9, in excess
of $2,000,000.
6.10. Accuracy of Information. The information, exhibits and
reports furnished by or on behalf of the Company and any of its Subsidiaries to
the Administrative Agent or to any Lender in connection with the negotiation of,
or compliance with, the Transaction Documents, the representations and
warranties of the Company and its Subsidiaries contained in the Transaction
Documents, and all certificates and documents delivered to the Administrative
Agent and the Lenders pursuant to the terms thereof, taken as a whole, do not
contain as of the date furnished any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements contained
herein or therein, in light of the circumstances under which they were made, not
misleading.
6.11. Securities Activities. Neither the Company nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
Margin Stock. Margin Stock constitutes less than 25% of the value of those
assets of the Company and its Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction hereunder.
6.12. Material Agreements. Neither the Company nor any of its
Subsidiaries is a party to any Contractual Obligation or subject to any charter
or other corporate restriction which individually or in the aggregate has had or
could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has received notice or has knowledge that
(i) it is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, or (ii) any condition exists which, with the giving of notice
or the lapse of time or both, would constitute a default with respect to any
such Contractual Obligation, in each case, except where such default or
defaults, if any, individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
6.13. Compliance with Laws. The Company and its Subsidiaries
are in compliance with all Requirements of Law applicable to them and their
respective businesses, in each case where the failure to so comply individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect.
6.14. Assets and Properties. The Company and each of its
Subsidiaries has good and marketable title to all of its material assets and
properties (tangible and intangible, real or personal) owned by it or a valid
leasehold interest in all of its material leased assets (except insofar as
marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free and
clear of all Liens, except Liens permitted under Section 7.3(C). Substantially
all of the assets and properties owned by, leased to or used by the Company
and/or each such Subsidiary of the Company are in
Sidley Xxxxxx Xxxxx & Xxxx
63
adequate operating condition and repair, ordinary wear and tear excepted.
Neither this Agreement nor any other Transaction Document, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of the Company or such Subsidiary in and to any of such assets in a manner that
could reasonably be expected to have a Material Adverse Effect.
6.15. Statutory Indebtedness Restrictions. Neither the
Company nor any of its Subsidiaries is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Investment
Company Act of 1940, or any other foreign, federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16. Insurance. The insurance policies and programs in
effect with respect to the respective properties, assets, liabilities and
business of the Company and its Subsidiaries reflect coverage that is reasonably
consistent with prudent industry practice.
6.17. Environmental Matters.
(A) Environmental Representations. Except as disclosed on
Schedule 6.17 to this Agreement:
(i) the operations of the Company and its Subsidiaries
comply in all material respects with Environmental, Health or
Safety Requirements of Law;
(ii) the Company and its Subsidiaries have all material
permits, licenses or other authorizations required under
Environmental, Health or Safety Requirements of Law and are in
material compliance with such permits;
(iii) neither the Company, any of its Subsidiaries nor any of
their respective present property or operations, or, to the
Company's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the
subject of, any investigation known to the Company or any of its
Subsidiaries, any judicial or administrative proceeding, order,
judgment, decree, settlement or other agreement respecting: (A)
any material violation of Environmental, Health or Safety
Requirements of Law; (B) any remedial action; or (C) any material
claims or liabilities arising from the Release or threatened
Release of a Contaminant into the environment;
(iv) there is not now, nor to the Company's or any of its
Subsidiaries' knowledge has there ever been, on or in the
property of the Company or any of its Subsidiaries any landfill,
waste pile, underground storage tanks, aboveground storage tanks,
surface impoundment or hazardous waste storage facility of any
kind, any polychlorinated biphenyls (PCBs) used in hydraulic
oils, electric transformers or other equipment, or any asbestos
containing material; and
(v) neither the Company nor any of its Subsidiaries has any
material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
Sidley Xxxxxx Xxxxx & Xxxx
64
(B) Materiality. For purposes of this Section 6.17
"material" means any noncompliance or basis for liability which
could reasonably be likely to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate, in
excess of $2,000,000.
6.18. Representations and Warranties of each Subsidiary
Borrower. Each Subsidiary Borrower represents and warrants to the Lenders that:
(A) Organization and Corporate Powers. Such Subsidiary
Borrower (i) is a company duly formed and validly existing and in
good standing under the laws of the state or country of its
organization (such jurisdiction being hereinafter referred to as
the "Home Country") and (ii) has the requisite power and authority
to own its property and assets and to carry on its business
substantially as now conducted except where the failure to have
such requisite authority would not reasonably be expected to have a
Material Adverse Effect.
(B) Binding Effect. Each Loan Document executed by such
Subsidiary Borrower is the legal, valid and binding obligation of
such Subsidiary Borrower enforceable in accordance with its
respective terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles.
(C) No Conflict; Government Consent. Neither the execution
and delivery by such Subsidiary Borrower of the Loan Documents to
which it is a party, nor the consummation by it of the transactions
therein contemplated to be consummated by it, nor compliance by
such Subsidiary Borrower with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on such Subsidiary Borrower or any of its
Subsidiaries or such Subsidiary Borrower's or any of its
Subsidiaries' memoranda or articles of association or the
provisions of any indenture, instrument or agreement to which such
Subsidiary Borrower or any of its Subsidiaries is a party or is
subject, or by which it, or its property, is bound, or conflict
with or constitute a default thereunder, or result in the creation
or imposition of any lien in, of or on the property of such
Subsidiary Borrower or any of its Subsidiaries pursuant to the
terms of any such indenture, instrument or agreement in any such
case which violation, conflict, default, creation or imposition
would not reasonably be expected to have a Material Adverse Effect.
No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any
Governmental Authority is required to authorize, or is required in
connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the
Loan Documents, except for such as have been obtained or made.
(D) Filing. To ensure the enforceability or admissibility
in evidence of this Agreement and each Loan Document to which such
Subsidiary Borrower is a party in its Home Country, it is not
necessary that this Agreement or any other Loan Document to which
such Subsidiary Borrower is a party or any other document be filed
or recorded with any court or other authority in its Home Country
or that any stamp or similar tax be paid to or in respect of this
Agreement or any other Loan Document of such Subsidiary
Sidley Xxxxxx Xxxxx & Xxxx
65
Borrower. The qualification by any Lender or the Administrative
Agent for admission to do business under the laws of such
Subsidiary Borrower's Home Country does not constitute a condition
to, and the failure to so qualify does not affect, the exercise by
any Lender or the Administrative Agent of any right, privilege, or
remedy afforded to any Lender or the Administrative Agent in
connection with the Loan Documents to which such Subsidiary
Borrower is a party or the enforcement of any such right,
privilege, or remedy against Subsidiary Borrower. The performance
by any Lender or the Administrative Agent of any action required or
permitted under the Loan Documents will not (i) violate any law or
regulation of such Subsidiary Borrower's Home Country or any
political subdivision thereof, (ii) result in any tax or other
monetary liability to such party pursuant to the laws of such
Subsidiary Borrower's Home Country or political subdivision or
taxing authority thereof (provided that, should any such action
result in any such tax or other monetary liability to the Lender or
the Administrative Agent, the Borrowers hereby agree to indemnify
such Lender or the Administrative Agent, as the case may be,
against (x) any such tax or other monetary liability and (y) any
increase in any tax or other monetary liability which results from
such action by such Lender or the Administrative Agent and, to the
extent the Borrowers make such indemnification, the incurrence of
such liability by the Administrative Agent or any Lender will not
constitute a Default) or (iii) violate any rule or regulation of
any federation or organization or similar entity of which the such
Subsidiary Borrower's Home Country is a member.
(E) No Immunity. Neither such Subsidiary Borrower nor any
of its assets is entitled to immunity from suit, execution,
attachment or other legal process. Such Subsidiary Borrower's
execution and delivery of the Loan Documents to which it is a party
constitute, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will
constitute, private and commercial acts done and performed for
private and commercial purposes.
(F) Application of Representations and Warranties. It is
understood and agreed by the parties hereto that the
representations and warranties of each Subsidiary Borrower in this
Section 6.18 shall only be applicable to such Subsidiary Borrower
on and after the date of its execution of an Assumption Letter.
6.19. Benefits. Each of the Company and its Subsidiaries will
benefit from the financing arrangement established by this Agreement. The
Administrative Agent and the Lenders have stated and the Company acknowledges
that, but for the agreement by each of the Subsidiary Guarantors to execute and
deliver the Subsidiary Guaranty, the Administrative Agent and the Lenders would
not have made available the credit facilities established hereby on the terms
set forth herein.
6.20. Solvency. After giving effect to (i) the Loans to be
made on the Closing Date or such other date as Loans requested hereunder are
made, (ii) the other transactions contemplated by this Agreement and the other
Transaction Documents and (iii) the payment and accrual of all transaction costs
with respect to the foregoing, the Company and its Subsidiaries taken as a whole
are Solvent.
Sidley Xxxxxx Xxxxx & Xxxx
66
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any
Commitments are outstanding and thereafter until all of the Termination
Conditions have been satisfied, unless the Required Lenders shall otherwise give
prior written consent:
7.1. Reporting. The Company shall:
(A) Financial Reporting. Furnish to the Administrative
Agent (with sufficient copies for each of the Lenders):
(i) Quarterly Reports. As soon as practicable and in any
event within sixty (60) days after the end of the first three
quarterly periods of each of its fiscal years, the consolidated
balance sheet of the Company and its Subsidiaries as at the end
of such period and the related consolidated statements of income
and cash flows of the Company and its Subsidiaries for such
fiscal quarter and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter, certified
by a Financial Officer of the Company on behalf of the Company
and its Subsidiaries as fairly presenting the consolidated
financial position of the Company and its Subsidiaries as at the
dates indicated and the results of their operations and cash
flows for the periods indicated in accordance with Agreement
Accounting Principles, subject to normal year-end audit
adjustments and the absence of footnotes.
(ii) Annual Reports. As soon as practicable, and in any
event within one hundred twenty (120) days after the end of each
fiscal year, (a) the consolidated balance sheet of the Company
and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, stockholders' equity
and cash flows of the Company and its Subsidiaries for such
fiscal year, and in comparative form the corresponding figures
for the previous fiscal year along with consolidating schedules
in form and substance sufficient to calculate the financial
covenants set forth in Section 7.4, and (b) an audit report on
the consolidated financial statements (but not the consolidating
financial statements or schedules) listed in clause (a) hereof of
independent certified public accountants of recognized national
standing, which audit report shall be unqualified and shall state
that such financial statements fairly present the consolidated
financial position of the Company and its Subsidiaries as at the
dates indicated and the results of their operations and cash
flows for the periods indicated in conformity with Agreement
Accounting Principles and that the examination by such
accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted
auditing standards. The deliveries made pursuant to this clause
(ii) shall be accompanied by (x) any management letter prepared
by the above-referenced accountants, and (y) a certificate of
such accountants that, in the course of their examination
necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Unmatured Default, or if,
in the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
Sidley Xxxxxx Xxxxx & Xxxx
67
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i) or (ii) of
this Section 7.1(A), an Officer's Certificate of the Company,
substantially in the form of Exhibit F attached hereto and made a
part hereof, stating that (x) the representations and warranties
of the Company contained in Article VI hereof shall have been
true and correct (unless such representation or warranty is made
as of a specific date, in which case, such representation and
warranty shall be true and correct as of such date) at all times
during the period covered by such financial statements and as of
the date of such Officer's Certificate and (y) as of the date of
such Officer's Certificate no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating
the nature and status thereof and (b) pursuant to clauses (i) and
(ii) of this Section 7.1(A), a compliance certificate,
substantially in the form of Exhibit G attached hereto and made a
part hereof, signed by an Authorized Officer, which demonstrates
compliance with the financial tests contained in Section 7.3 and
Section 7.4, and which calculates the Leverage Ratio for purposes
of determining the then Applicable Floating Rate Margin,
Applicable Eurodollar Margin, Applicable L/C Fee Percentage and
Applicable Commitment Fee Percentage.
(iv) Budgets; Business Plans; Financial Projections. As soon
as practicable and in any event not later than thirty (30) days
after the beginning of each fiscal year commencing with the
fiscal year beginning January 1, 2001, a copy of the plan and
forecast (including a projected balance sheet, income statement
and a statement of cash flow) of the Company and its Subsidiaries
for the upcoming three (3) fiscal years prepared in such detail
as shall be reasonably satisfactory to the Administrative Agent.
(B) Notice of Default. Promptly upon any of the chief
executive officer, chief operating officer, chief financial
officer, treasurer, controller, chief legal officer or general
counsel of the Company obtaining knowledge (i) of any condition or
event which constitutes a Default or Unmatured Default, or becoming
aware that any Lender or Administrative Agent has given any written
notice with respect to a claimed Default or Unmatured Default under
this Agreement, or (ii) that any Person has given any written
notice to the Company or any Subsidiary of the Company or taken any
other action with respect to a claimed default or event or
condition of the type referred to in Section 8.1(E), or (iii) that
any other development, financial or otherwise, which could
reasonably be expected to have a Material Adverse Effect has
occurred, the Company shall deliver to the Administrative Agent and
the Lenders an Officer's Certificate specifying (a) the nature and
period of existence of any such claimed default, Default, Unmatured
Default, condition or event, (b) the notice given or action taken
by such Person in connection therewith, and (c) what action the
Company has taken, is taking and proposes to take with respect
thereto.
(C) Lawsuits.
(i) Promptly upon the Company obtaining knowledge of the
institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration, by or
before any Governmental Authority, against or affecting the
Sidley Xxxxxx Xxxxx & Xxxx
68
Company or any of its Subsidiaries or any property of the Company
or any of its Subsidiaries not previously disclosed pursuant to
Section 6.7, which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or
arbitrations arising out of the same general allegations or
circumstances which expose, in the Company's reasonable judgment,
the Company and/or any of its Subsidiaries to liability in an
amount aggregating $2,000,000 or more, give written notice
thereof to the Administrative Agent and the Lenders and provide
such other information as may be reasonably available to enable
each Lender and the Administrative Agent and its counsel to
evaluate such matters; and
(ii) Promptly upon the Company or any of its Subsidiaries
obtaining knowledge of any material adverse developments with
respect to any of the Disclosed Litigation, which Disclosed
Litigation exposes, in the Company's reasonable judgment, the
Company and/or any of its Subsidiaries to liability in an amount
aggregating $2,000,000 or more, give written notice thereof to
the Administrative Agent and the Lenders and provide such other
information as may be reasonably available to enable each Lender
and the Administrative Agent and its counsel to evaluate such
matters; and
(iii) In addition to the requirements set forth in clauses
(i) and (ii) of this Section 7.1(C), upon request of the
Administrative Agent or the Required Lenders, promptly give
written notice of the status of any Disclosed Litigation or any
action, suit, proceeding, governmental investigation or
arbitration covered by a report delivered pursuant to clause (i)
above and provide such other information as may be reasonably
available to it that would not jeopardize any attorney-client
privilege by disclosure to the Lenders to enable each Lender and
the Administrative Agent and its counsel to evaluate such
matters.
(D) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at the Company's expense, the
following information and notices as soon as reasonably possible,
and in any event:
(i) (a) within ten (10) Business Days after the Company
obtains knowledge that a Termination Event has occurred, a
written statement of a Financial Officer of the Company
describing such Termination Event and the action, if any, which
the Company has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the
IRS, DOL or PBGC with respect thereto and (b) within ten (10)
Business Days after any member of the Controlled Group obtains
knowledge that a Termination Event has occurred which could
reasonably be expected to subject the Company or any of its
Subsidiaries to liability in excess of $2,000,000, a written
statement of a Financial Officer or designee of the Company
describing such Termination Event and the action, if any, which
the member of the Controlled Group has taken, is taking or
proposes to take with respect thereto, and when known, any action
taken or threatened by the IRS, DOL or PBGC with respect thereto;
Sidley Xxxxxx Xxxxx & Xxxx
69
(ii) within ten (10) Business Days after the filing of any
funding waiver request with the IRS, a copy of such funding
waiver request and thereafter all communications received by the
Company or a member of the Controlled Group with respect to such
request within ten (10) Business Days such communication is
received; and
(iii) within ten (10) Business Days after the Company or any
member of the Controlled Group knows or has reason to know that
(a) a Multiemployer Plan has been terminated, (b) the
administrator or plan sponsor of a Multiemployer Plan intends to
terminate a Multiemployer Plan, or (c) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to
terminate a Multiemployer Plan, a notice describing such matter.
For purposes of this Section 7.1(D), the Company, any of its
Subsidiaries and any member of the Controlled Group shall be deemed
to know all facts known by the administrator of any Plan of which
the Company or any member of the Controlled Group or such
Subsidiary is the plan sponsor.
(E) Other Indebtedness. Deliver to the Administrative Agent
(i) a copy of each regular report, notice or communication
regarding potential or actual defaults or amortization events
(including any accompanying officer's certificate) delivered by or
on behalf of the Company to the holders of Material Indebtedness
pursuant to the terms of the agreements governing such Material
Indebtedness, such delivery to be made at the same time and by the
same means as such notice of default is delivered to such holders,
and (ii) a copy of each notice or other communication received by
the Company from the holders of Material Indebtedness regarding
potential or actual defaults pursuant to the terms of such Material
Indebtedness, such delivery to be made promptly after such notice
or other communication is received by the Company or any of its
Subsidiaries.
(F) Other Reports. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of (i) all financial
statements, reports and notices, if any, sent or made available
generally by the Company to their securities holders or filed with
the Commission by the Company, (ii) all press releases made
available generally by the Company or any of the Company's
Subsidiaries to the public concerning material developments in the
business of the Company or any such Subsidiary and (iii) all
notifications received from the Commission by the Company or its
Subsidiaries pursuant to the Securities Exchange Act of 1934 and
the rules promulgated thereunder.
(G) Environmental Notices. As soon as possible and in any
event within ten (10) days after receipt by the Company, deliver to
the Administrative Agent and the Lenders a copy of (i) any notice
or claim to the effect that the Company or any of its Subsidiaries
is or may be liable to any Person as a result of the Release by the
Company, any of its Subsidiaries, or any other Person of any
Contaminant into the environment, and (ii) any notice alleging any
violation of any Environmental, Health or Safety Requirements of
Law by the Company or any of its Subsidiaries if, in either case,
such notice or claim relates to an event which could reasonably be
expected to subject the
Sidley Xxxxxx Xxxxx & Xxxx
70
Company and its Subsidiaries to liability individually or in the
aggregate in excess of $2,000,000.
(H) Other Information. Promptly upon receiving a request
therefor from the Administrative Agent, prepare and deliver to the
Administrative Agent and the Lenders such other information with
respect to the Company, any of its Subsidiaries, as from time to
time may be reasonably requested by the Administrative Agent.
7.2. Affirmative Covenants.
(A) Existence, Etc. The Company shall and, except as
permitted pursuant to Section 7.3(H), shall cause each of its
Subsidiaries to, at all times maintain its existence and preserve
and keep, or cause to be preserved and kept, in full force and
effect its rights and franchises material to its businesses.
(B) Corporate Powers; Conduct of Business. The Company
shall, and shall cause each of its Subsidiaries to, qualify and
remain qualified to do business in each jurisdiction in which the
nature of its business requires it to be so qualified and where the
failure to be so qualified will have or could reasonably be
expected to have a Material Adverse Effect. The Company will, and
will cause each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields
of enterprise as it is presently conducted.
(C) Compliance with Laws, Etc. The Company shall, and shall
cause its Subsidiaries to, (a) comply with all Requirements of Law
and all restrictive covenants affecting such Person or the
business, properties, assets or operations of such Person, and (b)
obtain as needed all permits necessary for its operations and
maintain such permits in good standing unless failure to comply or
obtain such permits could not reasonably be expected to have a
Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The
Company shall pay, and cause each of its Subsidiaries to pay, (i)
all taxes, assessments and other governmental charges imposed upon
it or on any of its properties or assets or in respect of any of
its franchises, business, income or property before any penalty or
interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for
sums which have become due and payable and which by law have or may
become a Lien (other than a Lien permitted by Section 7.3(C)) upon
any of the Company's or such Subsidiary's property or assets, prior
to the time when any penalty or fine shall be incurred with respect
thereto; provided, however, that no such taxes, assessments and
governmental charges referred to in clause (i) above or claims
referred to in clause (ii) above (and interest, penalties or fines
relating thereto) need be paid if being contested in good faith by
appropriate proceedings diligently instituted and conducted and if
such reserve or other appropriate provision, if any, as shall be
required in conformity with Agreement Accounting Principles shall
have been made therefor.
(E) Insurance. The Company shall maintain for itself and
its Subsidiaries, or shall cause each of its Subsidiaries to
maintain in full force and effect, insurance policies
Sidley Xxxxxx Xxxxx & Xxxx
71
and programs, with such deductibles or self-insurance amounts as
reflect coverage that is reasonably consistent with prudent
industry practice as determined by the Company.
(F) Inspection of Property; Books and Records; Discussions.
The Company shall permit and cause each of its Subsidiaries to
permit, any authorized representative(s) designated by either the
Administrative Agent or any Lender to visit and inspect any of the
properties of the Company or any of its Subsidiaries, to examine
their respective financial and accounting records and other
material data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in
connection with environmental compliance, hazard or liability), and
to discuss their affairs, finances and accounts with their officers
and independent certified public accountants, all upon reasonable
notice and at such reasonable times during normal business hours,
as often as may be reasonably requested (provided that an officer
of the Company or any of its Subsidiaries may, if it so desires, be
present at and participate in any such discussion). The Company
shall keep and maintain, and cause each of its Subsidiaries to keep
and maintain, in all material respects, proper books of record and
account in which entries in conformity with Agreement Accounting
Principles shall be made of all dealings and transactions in
relation to their respective businesses and activities. If a
Default has occurred and is continuing, the Company, upon the
Administrative Agent's request, shall turn over copies of any such
records to the Administrative Agent or its representatives.
(G) ERISA Compliance. The Company shall, and shall cause
each of its Subsidiaries to, establish, maintain and operate all
Plans to comply in all material respects with the provisions of
ERISA and shall operate all Plans to comply in all material
respects with the applicable provisions of the Code, all other
applicable laws, and the regulations and interpretations thereunder
and the respective requirements of the governing documents for such
Plans, except for any noncompliance which, individually or in the
aggregate, could not reasonably be expected to subject the Company
or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $5,000,000.
(H) Maintenance of Property. The Company shall cause all
property used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all
as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section 7.2(H) shall prevent the Company or any of
its Subsidiaries from discontinuing the operation or maintenance of
any of such property if such discontinuance is, in the judgment of
the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material
respect to the Administrative Agent or the Lenders.
(I) Environmental Compliance. The Company and its
Subsidiaries shall comply with all Environmental, Health or Safety
Requirements of Law, except where
Sidley Xxxxxx Xxxxx & Xxxx
72
noncompliance will not have or is not reasonably likely to subject
the Company or any of its Subsidiaries to liability, individually
or in the aggregate, in excess of $5,000,000.
(J) Use of Proceeds. The Borrowers shall use the proceeds
of the Revolving Loans to provide funds for general corporate
purposes of the Company and its Subsidiaries, including, without
limitation, to refinance certain existing debt, for working capital
purposes and to finance Permitted Acquisitions. The Company will
not, nor will they permit any Subsidiary to, use any of the
proceeds of the Loans to purchase or carry any Margin Stock in
violation of any applicable legal and regulatory requirements
including, without limitation, Regulations T, U, and X, the
Securities Act of 1933 and the Securities Exchange Act of 1934 and
the regulations promulgated thereunder, or to make any Acquisition,
other than a Permitted Acquisition pursuant to Section 7.3(F).
(K) Subsidiary Guarantors.
(i) New Subsidiaries. The Company shall cause each New
Subsidiary that is, at any time, a Material Subsidiary (other
than any Excluded Foreign Subsidiary) and each other Subsidiary
as is necessary to remain in compliance with the terms of Section
7.3(Q), to deliver to the Administrative Agent an executed
Guarantor Agreement or an executed supplement to become a
Subsidiary Guarantor under any Guarantor Agreement in the form of
the supplement attached thereto (a "Supplement") and appropriate
corporate resolutions, opinions and other documentation in form
and substance reasonably satisfactory to the Administrative
Agent, such Supplement and other documentation to be delivered to
the Administrative Agent as promptly as possible upon the
creation, acquisition of or capitalization thereof or if
otherwise necessary to remain in compliance with Section 7.3(Q),
but in any event within thirty (30) days of such creation,
acquisition or capitalization.
(ii) Additional Material Subsidiaries. If any consolidated
Subsidiary of the Company (other than a New Subsidiary to the
extent addressed in Section 7.2(K)(i)) becomes a Material
Subsidiary (other than an Excluded Foreign Subsidiary), the
Company shall cause any such Material Subsidiary to deliver to
the Administrative Agent an executed Supplement to become a
Subsidiary Guarantor and appropriate corporate resolutions,
opinions and other documentation in form and substance reasonably
satisfactory to the Administrative Agent in connection therewith,
such Supplement and other documentation to be delivered to the
Administrative Agent as promptly as possible but in any event
within thirty (30) days following the date on which such
consolidated Subsidiary became a Material Subsidiary.
(iii) Other Required Guarantors. If at any time any
Subsidiary of the Company which is not a Subsidiary Guarantor
guaranties any Indebtedness of the Company other than the
Indebtedness hereunder, the Company shall cause such Subsidiary
to deliver to the Administrative Agent an executed Supplement to
become a Subsidiary Guarantor and appropriate corporate
resolutions, opinions and other documentation in form and
substance reasonably satisfactory to the Administrative Agent in
connection therewith, such Supplement and other documentation to
be delivered to the
Sidley Xxxxxx Xxxxx & Xxxx
73
Administrative Agent concurrently with the delivery of the
guaranty of such other Indebtedness.
(iv) Additional Excluded Foreign Subsidiaries. In the event
any Subsidiary otherwise required to become a Guarantor under
paragraphs (ii) or (iii) above would cause the Company adverse
tax consequences if it were to become a Guarantor or is
restricted from becoming a Guarantor as a result of domestic laws
or otherwise, the Administrative Agent may, in its discretion,
permit such Subsidiary to be treated as an Excluded Foreign
Subsidiary, and, accordingly, such Subsidiary would not be
required to become a Guarantor.
(L) Foreign Employee Benefit Compliance. The Company shall,
and shall cause each of its Subsidiaries and each member of its
Controlled Group to, establish, maintain and operate all Foreign
Employee Benefit Plans to comply in all material respects with all
laws, regulations and rules applicable thereto and the respective
requirements of the governing documents for such Plans, except for
failures to comply which, in the aggregate, would not be reasonably
likely to subject the Company or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of
$5,000,000.
7.3. Negative Covenants.
(A) Subsidiary Indebtedness. The Company shall not permit
any of its Subsidiaries directly or indirectly to create, incur,
assume or otherwise become or remain directly or indirectly liable
with respect to any Indebtedness, except:
(i) Indebtedness of the Subsidiaries under the Subsidiary
Guaranty;
(ii) Indebtedness in respect of guaranties executed by any
Subsidiary Guarantor with respect to any Indebtedness of the
Company, provided such Indebtedness is not incurred by the
Company in violation of this Agreement;
(iii) Indebtedness in respect of obligations secured by
Customary Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations
permitted by Section 7.3(E);
(v) Unsecured Indebtedness arising from loans (a) from any
Subsidiary to any wholly-owned Subsidiary, or (b) from the
Company to any wholly-owned Subsidiary, or (c) from Xxxxxxx
Finance Company B.V., a Netherlands corporation and wholly-owned
Subsidiary of the Borrower, to any Subsidiary (other than any
Subsidiary Guarantor) in an aggregate outstanding principal
amount not to exceed $20,000,000 at any time; provided, that if
either the Company or any Subsidiary Guarantor is the obligor on
such Indebtedness, such Indebtedness may only be due either the
Company or a Subsidiary Guarantor and shall be expressly
subordinate to the payment in full in cash of the Obligations on
terms satisfactory to the Administrative Agent;
Sidley Xxxxxx Xxxxx & Xxxx
74
(vi) Indebtedness in respect of Hedging Obligations which
are not prohibited under Section 7.3(O);
(vii) Indebtedness with respect to surety, appeal and
performance bonds and Performance Letters of Credit obtained by
any of the Company's Subsidiaries in the ordinary course of
business;
(viii) Indebtedness (a) evidenced by letters of credit in an
aggregate face amount not to exceed at any time $35,000,000
issued in the ordinary course of business to secure obligations
of the Company and its Subsidiaries under workers' compensation
and other social security programs, and Contingent Obligations
with respect to any such permitted letters of credit, and (b)
constituting payment or other obligations to Praxair or its
Affiliates in respect of employee benefits under the Employee
Benefits Disaffiliation Agreement dated January 1, 1997, between
Chicago Bridge & Iron Company and Praxair, as amended from time
to time;
(ix) from and after the date of the H-B Acquisition, the
term indebtedness originally issued by Xxxx-Xxxxx in favor Air
Liquide and assumed by the Company pursuant to the H-B
Acquisition Agreement in an aggregate principal amount up to
$5,700,000; and
(x) Other Indebtedness, including Permitted Existing
Indebtedness, in addition to that referred to elsewhere in this
Section 7.3(A) incurred by the Company's Subsidiaries; provided
that no Default or Unmatured Default shall have occurred and be
continuing at the date of such incurrence or would result
therefrom; and provided further that the aggregate outstanding
amount of all Indebtedness incurred by the Company's Subsidiaries
(other than Indebtedness incurred pursuant to clauses (i), (ii),
(iv), (v), (vi), (vii), (viii) and (ix) of this Section 7.3(A))
shall not at any time exceed $20,000,000.
(B) Sales of Assets. Neither the Company nor any of its
Subsidiaries shall consummate any Asset Sale, except:
(i) sales of inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business of
equipment that is obsolete, excess or no longer used or useful in
the Company's or its Subsidiaries' businesses;
(iii) transfers of assets between the Company and any
wholly-owned Subsidiary of the Company, or between wholly-owned
Subsidiaries of the Company not otherwise prohibited by this
Agreement;
(iv) the Permitted Sale and Leaseback Transactions;
(v) the sale or other disposition of (a) all of the assets
comprising the UltraPure System business operations of the
Company, and (b) all of the assets
Sidley Xxxxxx Xxxxx & Xxxx
75
comprising the XL Technology Systems, Inc. business unit of the
Company, in each case, on terms reasonably acceptable to the
Administrative Agent; and
(vi) other leases, sales or other dispositions of assets if
such transaction (a) is for consideration consisting at least
eighty percent (80%) of cash, (b) is for not less than fair
market value (as determined in good faith by the Company's board
of directors), and (c) involves assets that, together with all
other assets of the Company and its Subsidiaries previously
leased, sold or disposed of (other than pursuant to clauses (i)
through (v) above) as permitted by this Section (x) during the
twelve-month period ending with the month in which any such
lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the assets of the Company and its
Subsidiaries and (y) since the Closing Date do not exceed
$30,000,000, in each case when combined with all such other
transactions during such period (each such transaction being
valued at book value).
(C) Liens. Neither the Company nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or permit to exist any Lien
on or with respect to any of their respective property or assets except:
(i) Liens, if any, created by the Loan Documents or
otherwise securing the Obligations;
(ii) Liens, if any, created by the "Loan Documents" or
otherwise securing the "Obligations" under (and as such terms are
defined in) the 364-Day Credit Agreement;
(iii) Customary Permitted Liens;
(iv) other Liens, including Permitted Existing Liens, (a)
securing Indebtedness of the Company (other than Indebtedness of
the Company owed to any Subsidiary) and/or (b) securing
Indebtedness of the Company's Subsidiaries as permitted pursuant
to Section 7.3(A) and in an aggregate outstanding amount not to
exceed ten percent (10%) of consolidated assets of the Company
and its Subsidiaries at any time.
In addition, neither the Company nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Administrative Agent as collateral for the
Obligations; provided that any agreement, note, indenture or other instrument in
connection with purchase money Indebtedness (including Capitalized Leases)
incurred in compliance with the terms of this Agreement may prohibit the
creation of a Lien in favor of the Administrative Agent and the Lenders on the
items of property obtained with the proceeds of such Indebtedness.
(D) Investments. Except to the extent permitted pursuant to
Section 7.3(F), neither the Company nor any of its Subsidiaries shall directly
or indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
Sidley Xxxxxx Xxxxx & Xxxx
76
(ii) Permitted Existing Investments in an amount not greater
than the amount thereof on the Closing Date;
(iii) Investments in trade receivables or received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers arising in the
ordinary course of business;
(iv) Investments consisting of deposit accounts maintained
by the Company and its Subsidiaries;
(v) Investments consisting of non-cash consideration from a
sale, assignment, transfer, lease, conveyance or other
disposition of property permitted by Section 7.3(B);
(vi) Investments in any consolidated Subsidiaries (other
than joint ventures);
(vii) Investments in joint ventures and nonconsolidated
Subsidiaries in an aggregate amount not to exceed $10,000,000;
(viii) Investments constituting Permitted Acquisitions;
(ix) Investments constituting Indebtedness permitted by
Section 7.3(A) or Contingent Obligations permitted by Section
7.3(E);
(x) Investments in addition to those referred to elsewhere
in this Section 7.3(D) in an aggregate amount not to exceed
$7,000,000.
(E) Contingent Obligations. None of the Company's
Subsidiaries shall directly or indirectly create or become or be
liable with respect to any Contingent Obligation, except: (i)
recourse obligations resulting from endorsement of negotiable
instruments for collection in the ordinary course of business; (ii)
Permitted Existing Contingent Obligations; (iii) Contingent
Obligations (x) incurred by any Subsidiary of the Company to
support the performance of bids, tenders, sales, contracts (other
than for the repayment of borrowed money) of any other Subsidiary
of the Company in the ordinary course of business, and (y) with
respect to surety, appeal and performance bonds obtained by the
Company or any Subsidiary in the ordinary course of business
provided that the Indebtedness with respect thereto is permitted
pursuant to Section 7.3(A); and (iv) Contingent Obligations of the
Subsidiary Guarantors under the Subsidiary Guaranty.
(F) Conduct of Business; Subsidiaries; Permitted
Acquisitions. Neither the Company nor any of its Subsidiaries shall
engage in any business other than the businesses engaged in by the
Company and its Subsidiaries on the Closing Date and any business
or activities which are substantially similar, related or
incidental thereto or logical extensions thereof. The Company shall
not create, acquire or capitalize any Subsidiary after the
Effective Date unless (i) no Default or Unmatured Default shall
have occurred and be continuing or would result therefrom; (ii)
after such creation, acquisition or capitalization, all of the
representations and warranties contained herein shall be true
Sidley Xxxxxx Xxxxx & Xxxx
77
and correct (unless such representation and warranty is made as of
a specific date, in which case, such representation or warranty
shall be true and correct as of such date); and (iii) after such
creation, acquisition or capitalization the Company and such
Subsidiary shall be in compliance with the terms of Sections 7.2(K)
and 7.3(R). Neither the Company nor its Subsidiaries shall make any
Acquisitions, other than (x) the H-B Acquisition and the PDM
Acquisition, and (y) other Acquisitions meeting the following
requirements or otherwise approved by the Required Lenders (the H-B
Acquisition, the PDM Acquisition and each such other Acquisition
constituting a "Permitted Acquisition"):
(a) as of the date of consummation of such Acquisition
(before and after taking into account such Acquisition), all
representations and warranties set forth in this Agreement and
the other Loan Documents shall be true and correct in all
material respects as though made on such date (unless such
representation and warranty is made as of a specific date, in
which case, such representation and warranty shall be true and
correct as of such date) and no event shall have occurred and
then be continuing which constitutes a Default or Unmatured
Default under this Agreement;
(b) prior to the consummation of any such Permitted
Acquisition, the Company shall provide written notification to
the Administrative Agent of all pro forma adjustments to
EBITDA to be made in connection with such Acquisition;
(c) the purchase is consummated pursuant to a
negotiated acquisition agreement on a non-hostile basis and
approved by the target company's board of directors (and
shareholders, if necessary) prior to the consummation of the
Acquisition;
(d) the businesses being acquired shall be
substantially similar, related or incidental to the businesses
or activities engaged in by the Company and its Subsidiaries
on the Closing Date;
(e) prior to such Acquisition and the incurrence of any
Indebtedness permitted by Section 7.3(A) in connection
therewith, the Company shall deliver to the Administrative
Agent and the Lenders a certificate from one of the Authorized
Officers, demonstrating, on a pro forma basis using unadjusted
historical audited or reviewed unaudited financial statements
obtained from the seller(s) in respect of each such
Acquisition as if the Acquisition and such incurrence of
Indebtedness had occurred on the first day of the twelve-month
period ending on the last day of the Company's most recently
completed fiscal quarter, the Company would have been in
compliance with the financial covenants in Section 7.4 and not
otherwise in Default; and
(f) without the prior written consent of the Required
Lenders, the purchase price for the Acquisition (including,
without limitation or duplication, cash, Capital Stock,
Restricted Payments and Indebtedness assumed) shall not exceed
$5,000,000.
Sidley Xxxxxx Xxxxx & Xxxx
78
(G) Transactions with Shareholders and Affiliates. Other
than (i) Investments permitted by Section 7.3(D), neither the
Company nor any of its Subsidiaries shall directly or indirectly
(a) enter into or permit to exist any transaction (including,
without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with, or make loans or
advances to any holder or holders of any of the Equity Interests of
the Company, or with any Affiliate of the Company which is not its
Subsidiary of the Company, on terms that are less favorable to the
Company or any of its Subsidiaries, as applicable, than those that
could reasonably be obtained in an arm's length transaction at the
time from Persons who are not such a holder or Affiliate.
(H) Restriction on Fundamental Changes. Neither the Company
nor any of its Subsidiaries shall enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any
liquidation or dissolution), or convey, lease, sell, transfer or
otherwise dispose of, in one transaction or series of transactions,
all or substantially all of the Company's consolidated business or
property (each such transaction a "Fundamental Change"), whether
now or hereafter acquired, except (i) Fundamental Changes permitted
under Sections 7.3(B), 7.3(D) or 7.3(G), (ii) a Subsidiary of the
Company may be merged into or consolidated with the Company (in
which case the Company shall be the surviving corporation) or any
wholly-owned Subsidiary of the Company provided such Company owns,
directly or indirectly, a percentage of the equity of the merged
entity not less than the percentage it owned of the Subsidiary
prior to such Fundamental Change and if the predecessor Subsidiary
was a Guarantor, the surviving Subsidiary shall be a Guarantor
hereunder, and (iii) any liquidation of any Subsidiary of the
Company, into the Company or another Subsidiary of the Company, as
applicable.
(I) Sales and Leasebacks. Neither the Company nor any of
its Subsidiaries shall become liable, directly, by assumption or by
Contingent Obligation, with respect to any Sale and Leaseback
Transaction (other than the Permitted Sale and Leaseback
Transactions), unless (i) the Company shall have prepaid the
outstanding Advances and reduced the Aggregate Commitment in
accordance with Sections 2.4(B) and 2.5(B), and (ii) the sale
involved is not prohibited under Section 7.3(B), the lease involved
is not prohibited under Section 7.3(A) and any related Investment
is not prohibited under Section 7.3(D).
(J) Margin Regulations. Neither the Company nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin
Stock in violation of any applicable legal and regulatory
requirements including, without limitation, Regulations T, U and X,
the Securities Act of 1933, and the Securities Exchange Act of 1934
and the regulations promulgated thereunder.
(K) ERISA. The Company shall not
(i) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with
respect to any Benefit Plan, whether or not waived;
Sidley Xxxxxx Xxxxx & Xxxx
79
(ii) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in liability of
the Company or any Controlled Group member under Title IV of
ERISA;
(iii) fail, or permit any Controlled Group member to fail, to
pay any required installment or any other payment required under
Section 412 of the Code on or before the due date for such
installment or other payment; or
(iv) permit any unfunded liabilities with respect to any
Foreign Pension Plan;
except where such transactions, events, circumstances, or failures
are not, individually or in the aggregate, reasonably expected to
result in liability individually or in the aggregate in excess of
$5,000,000.
(L) Corporate Documents. Neither the Company nor any of its
Subsidiaries shall amend, modify or otherwise change any of the
terms or provisions in any of their respective constituent
documents as in effect on the Closing Date in any manner adverse to
the interests of the Lenders, without the prior written consent of
the Required Lenders.
(M) Fiscal Year. Neither the Company nor any of its
consolidated Subsidiaries shall change its fiscal year for
accounting or tax purposes from a period consisting of the 12-month
period ending on the last day of December of each year.
(N) Subsidiary Covenants. Except as set forth on Schedule
7.3(N), the Company will not, and will not permit any Subsidiary
to, create or otherwise cause to become effective or suffer to
exist any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary to pay dividends or make any other
distribution on its stock or redemption of its stock, or make any
other Restricted Payment, pay any Indebtedness or other Obligation
owed to Company or any other Subsidiary, make loans or advances or
other Investments in the Company or any other Subsidiary, or sell,
transfer or otherwise convey any of its property to the Company or
any other Subsidiary, or merge, consolidate with or liquidate into
the Company or any other Subsidiary.
(O) Hedging Obligations. The Company shall not and shall
not permit any of its Subsidiaries to enter into any Hedging
Arrangements evidencing Hedging Obligations, other than Hedging
Arrangements entered into by the Company or its Subsidiaries
pursuant to which the Company or such Subsidiary has hedged its
reasonably estimated interest rate, foreign currency or commodity
exposure, and which are non-speculative in nature.
(P) Issuance of Disqualified Stock. From and after the
Closing Date, neither the Company, nor any of its Subsidiaries
shall issue any Disqualified Stock. All issued and outstanding
Disqualified Stock shall be treated as Indebtedness for Borrowed
Money for all purposes of this Agreement, and the amount of such
deemed Indebtedness shall be the aggregate amount of the
liquidation preference of such Disqualified Stock.
(Q) Non-Guarantor Subsidiaries. The Company will not at any
time permit the sum of the aggregate assets of all of the Company's
Subsidiaries which are not
Sidley Xxxxxx Xxxxx & Xxxx
80
Subsidiary Guarantors (the non-guarantor Subsidiaries being
referred to collectively as the "Non-Obligor Subsidiaries") to
exceed ten percent (10%) of the Company's and its Subsidiaries
consolidated assets.
(R) Intercompany Indebtedness. The Company shall not
create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness arising from
loans from any Subsidiary to the Company unless (a) such
Indebtedness is unsecured and (ii) such Indebtedness shall be
expressly subordinate to the payment in full in cash of the
Obligators on terms satisfactory to the Administrative Agent.
(S) Letters of Credit. The Company shall not and shall not
permit its Subsidiaries to be liable as an account party or
otherwise in connection with letters of credit, including, without
limitation, Letters of Credit issued pursuant to this Agreement,
"Letters of Credit" issued pursuant to (and as defined in) the
364-Day Credit Agreement, Performance Letters of Credit, letters of
credit issued under workers' compensation and other social security
programs or any other letters of credit whether issued under this
Agreement, under the 364-Day Credit Agreement or otherwise if the
aggregate Dollar Amount available for drawing under all such
letters of credit plus the aggregate outstanding Dollar Amount of
all reimbursement obligations in connection with such letters of
credit would exceed $250,000,000.
7.4. Financial Covenants. The Company shall comply with the
following:
(A) Maximum Leverage Ratio. As of the last day of each
fiscal quarter, the Company shall not permit the ratio (the
"Leverage Ratio") of (i) all Indebtedness for Borrowed Money of the
Company and its Subsidiaries to (ii) EBITDA to be greater than 2.50
to 1.00 for the four-quarter period ending on such date.
The Leverage Ratio shall be calculated, in each case,
determined as of the last day of each fiscal quarter based upon (a)
for Indebtedness for Borrowed Money, Indebtedness for Borrowed
Money as of the last day of each such fiscal quarter; and (b) for
EBITDA, the actual amount for the four-quarter period ending on
such day, calculated, with respect to Permitted Acquisitions, on a
pro forma basis using historical audited and reviewed unaudited
financial statements obtained from the seller(s) in such Permitted
Acquisition, broken down by fiscal quarter in the Company's
reasonable judgment and satisfactory to the Administrative Agent
and as reported to the Administrative Agent pursuant to the
provisions of Section 7.3(F)(b).
(B) Minimum Fixed Charge Coverage Ratio. The Company and
its consolidated Subsidiaries shall maintain a ratio ("Fixed Charge
Coverage Ratio"), without duplication, of (i) the sum of (a) EBITDA
for such period, minus (b) Capital Expenditures for such period
(but including Capital Expenditures incurred in connection with the
Company's new headquarters building in The Woodlands, Texas only to
the extent the amount of such Capital Expenditures exceeds the Net
Cash Proceeds received by the Company in connection with its
issuance of Equity Interests as described in the Company's Form S-3
filed with the Commission on April 25, 2002, as amended), plus (c)
Sidley Xxxxxx Xxxxx & Xxxx
81
Rentals for such period, plus (d) amounts paid during such period
with respect to Capitalized Lease Obligations, plus (e) Restricted
Payments paid in cash during such period to the extent deducted in
computing Net Income for such period, to (ii) the sum of the
amounts of (a) cash Interest Expense during such period, plus (b)
cash taxes paid by the Company and its consolidated Subsidiaries
during such period, plus (c) scheduled amortization during such
period of the principal portion of all Indebtedness for Borrowed
Money, plus (d) Restricted Payments (other than Restricted Payments
made to purchase Capital Stock of the Company from Pitt-Des Moines,
Inc. acquired by Pitt-Des Moines, Inc. in connection with the PDM
Acquisition and Restricted Payments of up to $10,000,000 made
during the Company's fourth fiscal quarter in fiscal 2001 to
purchase Capital Stock of the Company) paid in cash during such
period, plus (e) Rentals for such period, plus (f) amounts paid
during such period with respect to Capitalized Lease Obligations,
of at least 1.50 to 1.00 as of the end of each fiscal quarter for
the period commencing with the fiscal quarter ending on June 30,
2002 through the Termination Date.
The Fixed Charge Coverage Ratio shall be determined as of the
last day of each fiscal quarter based upon (a) for Indebtedness,
Indebtedness as of the last day of each such fiscal quarter; and
(b) for all other components thereof, the actual amount for the
four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using historical
audited and reviewed unaudited financial statements obtained from
the seller(s) in such Permitted Acquisition, broken down by fiscal
quarter in the Company's reasonable judgment and satisfactory to
the Administrative Agent and as reported to the Administrative
Agent pursuant to the provisions of Section 7.3(F)(b).
(C) Minimum Interest Expense Coverage Ratio. The Company
and its consolidated Subsidiaries shall maintain a ratio (the
"Interest Expense Coverage Ratio") for any applicable period of (i)
EBIT for such period to (ii) Interest Expense for such period of at
least 2.00 to 1.00 as of the end of each fiscal quarter for the
period commencing with the fiscal quarter ending on June 30, 2002
through the Termination Date.
The Interest Expense Coverage Ratio shall be determined as of
the last day of each fiscal quarter based upon the actual amount of
EBIT and Interest Expense for the four-quarter period ending on
such day, calculated, with respect to Permitted Acquisitions, on a
pro forma basis using historical audited and reviewed unaudited
financial statements obtained from the seller(s) in such Permitted
Acquisition, broken down by fiscal quarter in the Company's
reasonable judgment and satisfactory to the Administrative Agent
and as reported to the Administrative Agent pursuant to the
provisions of Section 7.3(F)(b).
(D) Minimum Consolidated Net Worth. The Company shall not
permit its Consolidated Net Worth at any time to be less than the
sum of (a) $130,000,000, plus (b) fifty percent (50%) of the sum of
Net Income (if positive) earned in each fiscal quarter, commencing
with the fiscal quarter ending on March 31, 2001, plus (c) the
amount, if any, by which stockholders' equity of the Company is, in
accordance with Agreement
Sidley Xxxxxx Xxxxx & Xxxx
82
Accounting Principles, adjusted from time to time as a result of
the issuance of any Equity Interests except for the adjustment made
to reflect the issuance of Equity Interests in connection with the
PDM Acquisition plus (d) seventy percent (70%) of the amount by
which stockholders' equity of the Company is, in accordance with
Agreement Accounting Principles, adjusted as a result of the
issuance of Equity Interests by the Company in connection with the
PDM Acquisition.
ARTICLE VIII: DEFAULTS
8.1. Defaults. Each of the following occurrences shall
constitute a Default under this Agreement:
(A) Failure to Make Payments When Due. The Company or any
Subsidiary Borrower shall (i) fail to pay when due any of the
Obligations consisting of principal with respect to the Loans or
(ii) shall fail to pay within five (5) days of the date when due
any of the other Obligations under this Agreement or the other Loan
Documents.
(B) Breach of Certain Covenants. The Company shall fail
duly and punctually to perform or observe any agreement, covenant
or obligation binding on the Company under Sections 7.1(A), 7.2(A),
7.2(F), 7.2(K), 7.3 or 7.4.
(C) Breach of Representation or Warranty. Any
representation or warranty made or deemed made by the Company or
any Subsidiary Borrower to the Administrative Agent or any Lender
herein or by the Company or any Subsidiary Borrower or any of its
Subsidiaries in any of the other Loan Documents or in any statement
or certificate or information at any time given by any such Person
pursuant to any of the Loan Documents shall be false or misleading
in any material respect on the date as of which made (or deemed
made).
(D) Other Defaults. The Company or any Subsidiary Borrower
shall default in the performance of or compliance with any term
contained in this Agreement (other than as covered by paragraphs
(A) or (B) or (C) of this Section 8.1), or the Company or any
Subsidiary Borrower or any of its Subsidiaries shall default in the
performance of or compliance with any term contained in any of the
other Loan Documents, and such default shall continue for thirty
(30) days after the occurrence thereof.
(E) Default as to Other Indebtedness. The Company or any of
its Subsidiaries shall fail to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise) with respect to (i) any Indebtedness (other than
Indebtedness hereunder), beyond any period of grace provided with
respect thereto, which individually or together with other such
Indebtedness as to which any such failure or other Default under
this clause (E) exists has an aggregate outstanding principal
amount equal to or in excess of Five Million and 00/100 Dollars
($5,000,000) or (ii) Indebtedness under the 364-Day Credit
Agreement, beyond any period of grace provided with respect thereto
(such Indebtedness under clauses (i) and (ii) being "Material
Indebtedness"); or any breach, default or event of default
(including any termination event, amortization event, liquidation
event or event of like import arising under any
Sidley Xxxxxx Xxxxx & Xxxx
83
agreement or instrument giving rise to any Off-Balance Sheet
Liabilities) shall occur, or any other condition shall exist under
any instrument, agreement or indenture pertaining to any such
Material Indebtedness, beyond any period of grace, if any, provided
with respect thereto, if the effect thereof is to cause an
acceleration, mandatory redemption, a requirement that the Company
offer to purchase such Indebtedness or other required repurchase or
early amortization of such Indebtedness, or permit the holder(s) of
such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption, early amortization or
repurchase of such Indebtedness; or any such Indebtedness shall be
otherwise declared to be due and payable (by acceleration or
otherwise) or required to be prepaid, redeemed, amortized or
otherwise repurchased by the Company or any of its Subsidiaries
(other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the
Company or any of the Company's Subsidiaries and the petition
shall not be dismissed, stayed, bonded or discharged within
forty-five (45) days after commencement of the case; or a court
having jurisdiction in the premises shall enter a decree or order
for relief in respect of the Company or any of the Company's
Subsidiaries in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over the Company or any of the Company's Subsidiaries or
over all or a substantial part of the property of the Company or
any of the Company's Subsidiaries shall be entered; or an interim
receiver, trustee or other custodian of the Company or any of the
Company's Subsidiaries or of all or a substantial part of the
property of the Company or any of the Company's Subsidiaries
shall be appointed or a warrant of attachment, execution or
similar process against any substantial part of the property of
the Company or any of the Company's Subsidiaries shall be issued
and any such event shall not be stayed, dismissed, bonded or
discharged within forty-five (45) days after entry, appointment
or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Company or any of the Company's Subsidiaries shall (i) commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (ii) consent to the entry
of an order for relief in an involuntary case, or to the conversion
of an involuntary case to a voluntary case, under any such law,
(iii) consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part
of its property, (iv) make any assignment for the benefit of
creditors or (v) take any corporate action to authorize any of the
foregoing.
(H) Judgments and Attachments. Any money judgment(s), writ
or warrant of attachment, or similar process against the Company or
any of its Subsidiaries or any of
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84
their respective assets involving in any single case or in the
aggregate an amount in excess of Five Million and 00/100 Dollars
($5,000,000) is or are entered and shall remain undischarged,
unvacated, unbonded or unstayed for a period of thirty (30) days or
in any event later than fifteen (15) days prior to the date of any
proposed sale thereunder.
(I) Dissolution. Any order, judgment or decree shall be
entered against the Company or any Subsidiary decreeing its
involuntary dissolution or split up and such order shall remain
undischarged and unstayed for a period in excess of forty-five (45)
days; or the Company or any Subsidiary shall otherwise dissolve or
cease to exist except as specifically permitted by this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan
Document as a whole that materially affects the ability of the
Administrative Agent, or any of the Lenders to enforce the
Obligations ceases to be in full force and effect or the Company or
any of the Company's Subsidiaries party thereto seeks to repudiate
its obligations thereunder.
(K) Termination Event. Any Termination Event occurs which
the Required Lenders believe is reasonably likely to subject the
Company to liability in excess of $5,000,000.
(L) Waiver of Minimum Funding Standard. If the plan
administrator of any Plan applies under Section 412(d) of the Code
for a waiver of the minimum funding standards of Section 412(a) of
the Code and any Lender believes the substantial business hardship
upon which the application for the waiver is based could reasonably
be expected to subject either the Company or any Controlled Group
member to liability in excess of $5,000,000.
(M) Change of Control. A Change of Control shall occur.
(N) Environmental Matters. The Company or any of its
Subsidiaries shall be the subject of any proceeding or
investigation pertaining to (i) the Release by the Company or any
of its Subsidiaries of any Contaminant into the environment, (ii)
the liability of the Company or any of its Subsidiaries arising
from the Release by any other Person of any Contaminant into the
environment, or (iii) any violation of any Environmental, Health or
Safety Requirements of Law which by the Company or any of its
Subsidiaries, which, in any case, has or is reasonably likely to
subject the Company to liability individually or in the aggregate
in excess of $5,000,000.
(O) Guarantor Revocation. Any Guarantor of the Obligations
shall terminate or revoke any of its obligations under the
applicable Guaranty or breach any of the material terms of such
Guaranty.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.2.
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85
ARTICLE IX: ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1. Termination of Commitments; Acceleration. If any
Default described in Section 8.1(F) or 8.1(G) occurs with respect to the
Company, any Subsidiary Borrower or any Subsidiary Guarantor, the obligations of
the Lenders to make Loans hereunder and the obligation of any Issuing Banks to
issue Letters of Credit hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent or any Lender. If any other
Default occurs, the Required Lenders may terminate or suspend the obligations of
the Lenders to make Loans hereunder and the obligation of the Issuing Banks to
issue Letters of Credit hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrowers expressly waive.
9.2. Amendments. Subject to the provisions of this Article
IX, the Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Borrowers may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or the
Borrowers hereunder or waiving any Default hereunder; provided, however, that no
such supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Postpone or extend the Termination Date or any other
date fixed for any payment of principal of, or interest on, the
Loans, the Reimbursement Obligations or any fees or other amounts
payable to such Lender (except with respect to (a) any
modifications of the provisions relating to amounts, timing or
application of prepayments of Loans and other Obligations, which
modification shall require only the approval of the Required
Lenders, (b) a waiver of the application of the default rate of
interest pursuant to Section 2.10 hereof which waiver shall
require only the approval of the Required Lenders, and (c)
extensions of the Termination Date pursuant to Section 2.22).
(ii) Reduce the principal Dollar Amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon (other than (a) a waiver of the
application of the default rate of interest pursuant to Section
2.10 hereof and (b) in accordance with the provisions of Section
2.22).
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to
be the applicable percentage in this Agreement to act on
specified matters or amend the definitions of "Required Lenders"
or "Pro Rata Share".
(iv) Increase the amount of the Commitment, of any Lender
hereunder, or increase any Lender's Pro Rata Share.
(v) Permit the Company or, other than pursuant to a
transaction permitted under the terms of this Agreement, any
Subsidiary Borrower to assign its rights under this Agreement.
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86
(vi) Other than pursuant to a transaction permitted by the
terms of this Agreement, release any Guarantor from its
obligations under the Guaranty.
(vii) Amend Section 7.2(K), Section 13.2, Section 13.3 or
this Section 9.2.
No amendment of any provision of this Agreement relating to (a)
the Administrative Agent shall be effective without the written
consent of the Administrative Agent, (b) Swing Line Loans shall be
effective without the written consent of the Swing Line Bank and (c)
any Issuing Bank shall be effective without the written consent of
such Issuing Bank. The Administrative Agent may waive payment of the
fee required under Section 14.3(B) without obtaining the consent of
any of the Lenders. Notwithstanding anything herein to the contrary,
the Administrative Agent may amend the provisions of Exhibit A from
time to time to take into account the effectiveness of assignments
made pursuant to Section 14.3 or changes in the Commitments pursuant
to Section 2.5(B), provided the failure to do so shall not otherwise
affect the rights or obligations of the Lenders or the Borrowers
hereunder.
The Administrative Agent may notify the other parties to this
Agreement of any amendments to this Agreement which the
Administrative Agent reasonably determines to be necessary as a
result of the commencement of the third stage of the European
Economic and Monetary Union. Notwithstanding anything to the contrary
contained herein, any amendments so notified shall take effect in
accordance with the terms of the relevant notification.
9.3. Preservation of Rights. No delay or omission of the
Lenders or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Loan or the issuance of a Letter
of Credit notwithstanding the existence of a Default or the inability of the
Company or any other Borrower to satisfy the conditions precedent to such Loan
or issuance of such Letter of Credit shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the requisite number of Lenders required pursuant to Section 9.2, and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until all of the
Termination Conditions shall have been satisfied.
ARTICLE X: GUARANTY
10.1. Guaranty. For valuable consideration, the receipt of
which is hereby acknowledged, and to induce the Lenders to make advances to each
Borrower and to issue and participate in Letters of Credit and Swing Line Loans,
the Company and each Subsidiary Borrower (collectively, the "Borrower
Guarantors") hereby absolutely and unconditionally guarantees prompt payment
when due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, of any and all existing and future Obligations of each
Borrower to the Administrative Agent, the Lenders, the Swing Line Bank, the
Issuing Banks, or
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87
any of them, under or with respect to the Loan Documents, whether for principal,
interest, fees, expenses or otherwise (collectively, the "Guaranteed
Obligations").
10.2. Waivers; Subordination of Subrogation.
(A) Each Borrower Guarantor waives notice of the acceptance
of this guaranty and of the extension or continuation of the
Guaranteed Obligations or any part thereof. Each Borrower Guarantor
further waives presentment, protest, notice of notices delivered or
demand made on any Borrower or action or delinquency in respect of
the Guaranteed Obligations or any part thereof, including any right
to require the Administrative Agent and the Lenders to xxx any
Borrower, any other guarantor or any other Person obligated with
respect to the Guaranteed Obligations or any part thereof;
provided, that if at any time any payment of any portion of the
Guaranteed Obligations is rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy or reorganization of
any of the Borrowers or otherwise, the Borrower Guarantor's
obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had not been made
and whether or not the Administrative Agent or the Lenders are in
possession of this guaranty. The Administrative Agent and the
Lenders shall have no obligation to disclose or discuss with the
Company their assessments of the financial condition of the
Borrowers.
(B) Until the Guaranteed Obligations have been indefeasibly
paid in full in cash, each Borrower Guarantor (i) shall have no
right of subrogation with respect to such Guaranteed Obligations
and (ii) waives any right to enforce any remedy which the
Administrative Agent now has or may hereafter have against any
Borrower, any other Guarantor, any endorser or any guarantor of all
or any part of the Guaranteed Obligations or any other Person.
Should any Borrower Guarantor have the right, notwithstanding the
foregoing, to exercise its subrogation rights, each Borrower
Guarantor hereby expressly and irrevocably (a) subordinates any and
all rights at law or in equity to subrogation, reimbursement,
exoneration, contribution, indemnification or set off that such
Borrower Guarantor may have to the indefeasible payment in full in
cash of the Guaranteed Obligations and (b) waives any and all
defenses available to a surety, guarantor or accommodation
co-obligor until the Guaranteed Obligations are indefeasibly paid
in full in cash. Each Borrower Guarantor acknowledges and agrees
that this subordination is intended to benefit the Administrative
Agent and shall not limit or otherwise affect any Borrower
Guarantor liability hereunder or the enforceability of this
Guaranty, and that the Administrative Agent, the Lenders and their
its successors and assigns are intended third party beneficiaries
of the waivers and agreements set forth in this Section 10.2.
10.3. Guaranty Absolute. This guaranty is a guaranty of
payment and not of collection, is a primary obligation of each Borrower
Guarantor and not one of surety, and the validity and enforceability of this
guaranty shall be absolute and unconditional irrespective of, and shall not be
impaired or affected by any of the following: (a) any extension, modification or
renewal of, or indulgence with respect to, or substitutions for, the Guaranteed
Obligations or any part thereof or any agreement relating thereto at any time;
(b) any failure or omission to enforce any right, power or remedy with respect
to the
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88
Guaranteed Obligations or any part thereof or any agreement relating
thereto; (c) any waiver of any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto;
(d) any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, any other guaranties with respect
to the Guaranteed Obligations or any part thereof, or any other obligation of
any Person with respect to the Guaranteed Obligations or any part thereof; (e)
the enforceability or validity of the Guaranteed Obligations or any part thereof
or the genuineness, enforceability or validity of any agreement relating
thereto, including, without limitation, as a result of a Country Risk Event; (f)
the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Borrower or the insolvency,
bankruptcy or any other change in the legal status of any Borrower; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any other Borrower to maintain in full force, validity
or effect or to obtain or renew when required all governmental and other
approvals, licenses or consents required in connection with the Guaranteed
Obligations or this guaranty, or to take any other action required in connection
with the performance of all obligations pursuant to the Guaranteed Obligations
or this guaranty; (j) the existence of any claim, setoff or other rights which
the Company may have at any time against any Borrower, or any other Person in
connection herewith or an unrelated transaction; or (k) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense
to a guarantor; all whether or not such Borrower Guarantor shall have had notice
or knowledge of any act or omission referred to in the foregoing clauses (a)
through (k) of this paragraph. It is agreed that each Borrower Guarantor's
liability hereunder is several and independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Obligations or
any part thereof and that each Borrower Guarantor's liability hereunder may be
enforced regardless of the existence, validity, enforcement or non-enforcement
of any such other guaranties or other obligations or any provision of any
applicable law or regulation purporting to prohibit payment by any Borrower of
the Guaranteed Obligations in the manner agreed upon between the Borrower and
the Administrative Agent and the Lenders.
10.4. Acceleration. Each Borrower Guarantor agrees that, as
between such Borrower Guarantor on the one hand, and the Lenders and the
Administrative Agent, on the other hand, the obligations of each Borrower
guaranteed under this Article X may be declared to be forthwith due and payable,
or may be deemed automatically to have been accelerated, as provided in Section
9.1 hereof for purposes of this Article X, notwithstanding any stay, injunction
or other prohibition (whether in a bankruptcy proceeding affecting such Borrower
or otherwise) preventing such declaration as against such Borrower and that, in
the event of such declaration or automatic acceleration, such obligations
(whether or not due and payable by such Borrower) shall forthwith become due and
payable by each Borrower Guarantor for purposes of this Article X.
10.5. Marshaling; Reinstatement. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any obligation to marshal any assets in
favor of any Borrower Guarantor or against or in payment of any or all of the
Guaranteed Obligations. If any Borrower Guarantor or any other
Sidley Xxxxxx Xxxxx & Xxxx
89
guarantor of all or any part of the Guaranteed Obligations makes a payment or
payments to any Lender or the Administrative Agent, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to any Borrower Guarantor
or any other guarantor or any other Person, or their respective estates,
trustees, receivers or any other party, including, without limitation, each
Borrower Guarantor, under any bankruptcy law, state or federal law, common law
or equitable cause, then, to the extent of such payment or repayment, the part
of the Guaranteed Obligations which has been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the time
immediately preceding such initial payment, reduction or satisfaction.
10.6. Termination Date. This guaranty shall continue in
effect until the earlier of (a) the Facility Termination Date, and (b) the date
on which this Agreement has otherwise expired or been terminated in accordance
with its terms and all of the Guaranteed Obligations have been paid in full in
cash, subject to the proviso in Section 10.2.
ARTICLE XI: GENERAL PROVISIONS
11.1. Survival of Representations. All representations and
warranties of the Borrowers contained in this Agreement shall survive delivery
of this Agreement and the making of the Loans herein contemplated so long as any
principal, accrued interest, fees, or any other amount due and payable under any
Loan Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Commitments have not been
terminated.
11.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Company or any other Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.
11.3. Performance of Obligations. The Borrowers agree that
the Administrative Agent may, but shall have no obligation to (i) at any time,
pay or discharge taxes, liens, security interests or other encumbrances levied
or placed on or threatened against any property of any Borrower to the extent
any such Borrower is required by the terms hereof to pay any such amount, but
has not done so and (ii), after the occurrence and during the continuance of a
Default, to make any other payment or perform any act required of the Company or
any other Borrower under any Loan Document or take any other action which the
Administrative Agent in its discretion deems necessary or desirable to protect
or preserve such property of the Company. The Administrative Agent shall use its
reasonable efforts to give the applicable Borrower notice of any action taken
under this Section 11.3 prior to the taking of such action or promptly
thereafter provided the failure to give such notice shall not affect the
applicable Borrower's obligations in respect thereof. The Borrowers agree to pay
the Administrative Agent, upon demand, the principal amount of all funds
advanced by the Administrative Agent under this Section 11.3, together with
interest thereon at the rate from time to time applicable to Floating Rate Loans
from the date of such advance until the outstanding principal balance thereof is
paid in full. If any Borrower fails to make payment in respect of any such
advance under this Section 11.3 within one (1) Business Day after the date the
applicable Borrower receives written demand therefor from the Administrative
Agent, the Administrative Agent shall promptly notify each
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90
Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in immediately available funds, the amount
equal to such Lender's Pro Rata Share of such advance. If such funds are not
made available to the Administrative Agent by such Lender within one (1)
Business Day after the Administrative Agent's demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of such demand and ending on
the date such amount is received. The failure of any Lender to make available to
the Administrative Agent its Pro Rata Share of any such unreimbursed advance
under this Section 11.3 shall neither relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent such other Lender's Pro
Rata Share of such advance on the date such payment is to be made nor increase
the obligation of any other Lender to make such payment to the Administrative
Agent.
11.4. Headings. Section headings in the Loan Documents are
for convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.
11.5. Entire Agreement. The Loan Documents and the letter
agreements between the Administrative Agent, the Arranger and the Borrowers
dated September 6, 2000, August 2, 2001 and August [__], 2002 embody the entire
agreement and understanding among the Borrowers, the Administrative Agent and
the Lenders and supersede all prior agreements and understandings among the
Borrowers, the Administrative Agent and the Lenders relating to the subject
matter thereof.
11.6. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other Lender (except to the extent
to which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
11.7. Expenses; Indemnification.
(A) Expenses. The Borrowers shall reimburse the
Administrative Agent and the Arranger for any reasonable costs,
internal charges and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Administrative Agent, which attorneys and
paralegals may be employees of the Administrative Agent) paid or
incurred by the Administrative Agent or the Arranger in connection
with the preparation, negotiation, execution, delivery,
syndication, distribution (including via the internet), review,
amendment, modification, and administration of the Loan Documents.
The Borrowers also agree to reimburse the Administrative Agent and
the Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' and paralegals' fees
and time charges of attorneys and paralegals for the Administrative
Agent and the Arranger and the Lenders, which attorneys and
paralegals may be employees of the Administrative Agent or the
Arranger or the Lenders) paid or incurred by the Administrative
Agent or the Arranger or
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91
any Lender in connection with the collection of the Obligations and
enforcement of the Loan Documents. In addition to expenses set
forth above, the Borrowers agree to reimburse the Administrative
Agent, promptly after the Administrative Agent's request therefor,
for each audit, or other business analysis performed by or for the
benefit of the Lenders in connection with this Agreement or the
other Loan Documents in an amount equal to the Administrative
Agent's then customary charges for each person employed to perform
such audit or analysis, plus all costs and expenses (including
without limitation, travel expenses) incurred by the Administrative
Agent in the performance of such audit or analysis. Administrative
Agent shall provide the Borrowers with a detailed statement of all
reimbursements requested under this Section 11.7(A).
(B) Indemnity. The Borrowers further agree to defend,
protect, indemnify, and hold harmless the Administrative Agent, the
Arranger and each and all of the Lenders and each of their
respective Affiliates, and each of such Administrative Agent's,
Arranger's, Lender's, or Affiliate's respective officers,
directors, trustees, investment advisors, employees, attorneys and
agents (including, without limitation, those retained in connection
with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V) (collectively, the
"Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses of any kind or nature whatsoever
(including, without limitation, the fees and disbursements of
counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not any of such
Indemnitees shall be designated a party thereto), imposed on,
incurred by, or asserted against such Indemnitees in any manner
relating to or arising out of:
(i) this Agreement or any of the other Loan Documents, or
any act, event or transaction related or attendant thereto or to
the making of the Loans, and the issuance of and participation in
Letters of Credit hereunder, the management of such Loans or
Letters of Credit, the use or intended use of the proceeds of the
Loans or Letters of Credit hereunder, or any of the other
transactions contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic
damages, consequential damages, treble damages, intentional,
willful or wanton injury, damage or threat to the environment,
natural resources or public health or welfare, costs and expenses
(including, without limitation, attorney, expert and consulting
fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent,
past, present or future relating to violation of any
Environmental, Health or Safety Requirements of Law arising from
or in connection with the past, present or future operations of
the Company, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective
property of the Company or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the
Company or its Subsidiaries or the Release or threatened Release
of any Contaminant into the environment (collectively, the
"Indemnified Matters");
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92
provided, however, no Borrower shall have any obligation to an
Indemnitee hereunder with respect to Indemnified Matters caused
solely by or resulting solely from the willful misconduct or
Gross Negligence of such Indemnitee with respect to the Loan
Documents, as determined by the final non-appealed judgment of a
court of competent jurisdiction. If the undertaking to indemnify,
pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public
policy, the applicable Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable
law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. Neither
the Administrative Agent, the Arranger, any Lender nor the Company
or any other Borrower shall be liable under this Agreement or any
Loan Document or in respect of any act, omission or event relating
to the transaction contemplated hereby or thereby, on any theory of
liability on any theory of liability seeking consequential,
special, indirect, exemplary or punitive damages. No settlement
shall be entered into by the Company or any of its Subsidiaries
with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced
by this Agreement or the other Loan Documents (whether or not the
Administrative Agent or any Lender or any Indemnitee is a party
thereto) unless such settlement releases all Indemnitees from any
and all liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements
of the Borrowers under this Section 11.7 shall survive the
termination of this Agreement.
11.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
11.9. Accounting. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. If any changes in generally accepted accounting principles are
hereafter required or permitted and are adopted by the Company or any of its
Subsidiaries with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, tests, restrictions or standards herein or in the related
definitions or terms used therein ("Accounting Changes"), the parties hereto
agree, at the Company's request, to enter into negotiations, in good faith, in
order to amend such provisions in a credit neutral manner so as to reflect
equitably such changes with the desired result that the criteria for evaluating
the Company's and its Subsidiaries' financial condition shall be the same after
such changes as if such changes had not been made; provided, however, until such
provisions are amended in a manner reasonably satisfactory to the Administrative
Agent and the Required Lenders, no Accounting Change shall be given effect in
such calculations and all financial statements and reports required to be
delivered hereunder shall be prepared in accordance with Agreement Accounting
Principles without taking into account such Accounting Changes. In the event
such amendment is entered into, all references in this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as of
the date of such amendment.
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11.10. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
11.11. Nonliability of Lenders. The relationship between the
Borrowers and the Lenders and the Administrative Agent shall be solely that of
borrower and lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrowers. Neither the Administrative
Agent nor any Lender undertakes any responsibility to any Borrower to review or
inform any Borrower of any matter in connection with any phase of the Borrowers'
business or operations.
11.12. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS
AGREEMENT, ON BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY
ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (INCLUDING Section735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO
THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
11.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY
TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN CLAUSE
(B), EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS.
EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT
TO THIS CLAUSE (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION
OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE
ADMINISTRATIVE AGENT, ANY LENDER SHALL HAVE THE RIGHT TO PROCEED
AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION
OVER ANY BORROWER OR (2) IN ORDER TO
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94
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. EACH
BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS CLAUSE (B).
(C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) SERVICE OF PROCESS. EACH BORROWER IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN ARTICLE
XV, AND THE COMPANY AND EACH BORROWER OR GUARANTOR LOCATED OR
ORGANIZED OUTSIDE OF THE STATE OF ILLINOIS HEREBY IRREVOCABLY
APPOINTS THE COMPANY AT THE ADDRESS PROVIDED IN SECTION 15.1, AS
ITS AGENT FOR SERVICE OF PROCESS OUT OF ANY OF THE COURTS REFERRED
TO IN PARAGRAPHS (A) AND (B) ABOVE. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW.
(E) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY
PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO
EACH OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND,
SPECIFICALLY, THE PROVISIONS OF SECTION 11.7 AND THIS SECTION
11.13, WITH ITS COUNSEL.
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11.14. Other Transactions. Each of the Administrative Agent,
the Arranger, the Lenders, the Swing Line Bank, the Issuing Banks and the
Borrowers acknowledge that the Lenders (or Affiliates of the Lenders) may, from
time to time, effect transactions for their own accounts or the accounts of
customers, and hold positions in loans or options on loans of the Company, the
Company's Subsidiaries and other companies that may be the subject of this
credit arrangement and nothing in this Agreement shall impair the right of any
such Person to enter into any such transaction (to the extent it is not
expressly prohibited by the terms of this Agreement) or give any other Person
any claim or right of action hereunder as a result of the existence of the
credit arrangements hereunder, all of which are hereby waived. In addition,
certain Affiliates of one or more of the Lenders are or may be securities firms
and as such may effect, from time to time, transactions for their own accounts
or for the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Each of the Administrative Agent, the Arranger and Arranger, the Lenders, the
Swing Line Bank, the Issuing Banks and the Borrowers acknowledges and consents
to these multiple roles, and further acknowledges that the fact that any such
unit or Affiliate is providing another service or product or proposal therefor
to the Company or any of its Subsidiaries does not mean that such service,
product, or proposal is or will be acceptable to any of the Administrative
Agent, the Arranger and Arranger, the Lenders, the Swing Line Bank or the
Issuing Banks.
11.15. Subordination of Intercompany Indebtedness. Each
Borrower agrees that any and all claims of such Borrower against the Company or
any of its Subsidiaries that is a Guarantor with respect to any "Intercompany
Indebtedness" (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Obligations, or against any of its
properties shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Obligations and Hedging Obligations under
Hedging Arrangements entered into with the Lenders or any of their Affiliates
("Designated Hedging Agreements"); provided that, and not in contravention of
the foregoing, so long as no Default has occurred and is continuing each
Borrower may make loans to and receive payments in the ordinary course with
respect to such Intercompany Indebtedness from each such Guarantor to the extent
not prohibited by the terms of this Agreement and the other Loan Documents.
Notwithstanding any right of any Borrower to ask, demand, xxx for, take or
receive any payment from any Guarantor, all rights, liens and security interests
of any Borrower, whether now or hereafter arising and howsoever existing, in any
assets of any Guarantor shall be and are subordinated to the rights of the
holders of the Obligations and the Administrative Agent in those assets. No
Borrower shall have any right to possession of any such asset or to foreclose
upon any such asset, whether by judicial action or otherwise, unless and until
all of the Obligations (other than contingent indemnity obligations) and the
Hedging Obligations under Designated Hedging Agreements shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document or Designated Hedging Agreement have been terminated. If all or any
part of the assets of any Guarantor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Guarantor,
whether partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of
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96
creditors or any other action or proceeding, or if the business of any such
Guarantor is dissolved or if substantially all of the assets of any such
Guarantor are sold, then, and in any such event (such events being herein
referred to as an "Insolvency Event"), any payment or distribution of any kind
or character, either in cash, securities or other property, which shall be
payable or deliverable upon or with respect to any indebtedness of any Guarantor
to any Borrower ("Intercompany Indebtedness") shall be paid or delivered
directly to the Administrative Agent for application on any of the Obligations
and Hedging Obligations under Designated Hedging Agreements, due or to become
due, until such Obligations and Hedging Obligations (other than contingent
indemnity obligations) shall have first been fully paid and satisfied (in cash).
Should any payment, distribution, security or instrument or proceeds thereof be
received by any Borrower upon or with respect to the Intercompany Indebtedness
after an Insolvency Event prior to the satisfaction of all of the Obligations
(other than contingent indemnity obligations) and Hedging Obligations under
Designated Hedging Agreements and the termination of all financing arrangements
pursuant to any Loan Document and or Designated Hedging Agreements, such
Borrower shall receive and hold the same in trust, as trustee, for the benefit
of the holders of the Obligations and such Hedging Obligations and shall
forthwith deliver the same to the Administrative Agent, for the benefit of such
Persons, in precisely the form received (except for the endorsement or
assignment of such Borrower where necessary), for application to any of the
Obligations and such Hedging Obligations, due or not due, and, until so
delivered, the same shall be held in trust by such Borrower as the property of
the holders of the Obligations and such Hedging Obligations. If any Borrower
fails to make any such endorsement or assignment to the Administrative Agent,
the Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. Each Borrower agrees that until the Obligations
(other than the contingent indemnity obligations) and such Hedging Obligations
have been paid in full (in cash) and satisfied and all financing arrangements
pursuant to any Loan Document or any Designated Hedging Agreement have been
terminated, no Borrower will assign or transfer to any Person (other than the
Administrative Agent) any claim such Borrower has or may have against any
Guarantor.
11.16. Lender's Not Utilizing Plan Assets. None of the
consideration used by any of the Lenders or Designated Lenders to make its Loans
constitutes for any purpose of ERISA or Section 4975 of the Code assets of any
"plan" as defined in Section 3(3) of ERISA or Section 4975 of the Code and the
rights and interests of each of the Lenders and Designated Lenders in and under
the Loan Documents shall not constitute such "plan assets" under ERISA.
11.17. Collateral. Each of the Lenders and the Issuing Banks
represents to the Administrative Agent, each of the other Lenders and each of
the other Issuing Banks that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
ARTICLE XII: THE ADMINISTRATIVE AGENT
12.1. Appointment; Nature of Relationship. Bank One is
appointed by the Lenders as the Administrative Agent hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such contractual
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97
representative upon the express conditions contained in this Article XII. In its
capacity as the Lenders' contractual representative, the Administrative Agent is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders agrees to assert no claim against the Administrative Agent
on any agency theory or any other theory of liability for breach of fiduciary
duty.
12.2. Powers. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically delegated to
the Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3. General Immunity. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be liable to the
Borrowers, the Lenders or any Lender for any action taken or omitted to be taken
by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is found in a
final judgment by a court of competent jurisdiction to have arisen solely from
the Gross Negligence or willful misconduct of such Person.
12.4. No Responsibility for Loans, Creditworthiness,
Recitals, Etc. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (i) any statement, warranty or representation
made in connection with any Loan Document or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document; (iii) the satisfaction of any condition specified in
Article V, except receipt of items required to be delivered solely to the
Administrative Agent; (iv) the existence or possible existence of any Default or
(v) the validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith. The Administrative
Agent shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or in any of the other Loan Documents or
for the execution, effectiveness, genuineness, validity, legality,
enforceability, collectibility, or sufficiency of this Agreement or any of the
other Loan Documents or the transactions contemplated thereby, or for the
financial condition of any guarantor of any or all of the Obligations, the
Company or any of its Subsidiaries.
12.5. Action on Instructions of Lenders. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all owners of Loans. The Administrative
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
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12.6. Employment of Agents and Counsel. The Administrative
Agent may execute any of its duties as the Administrative Agent hereunder and
under any other Loan Document by or through employees, agents, and
attorney-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agent, for the default or
misconduct of any such agent or attorneys-in-fact selected by it with reasonable
care. The Administrative Agent shall be entitled to advice of counsel concerning
the contractual arrangement between the Administrative Agent and the Lenders and
all matters pertaining to the Administrative Agent's duties hereunder and under
any other Loan Document.
12.7. Reliance on Documents; Counsel. The Administrative
Agent shall be entitled to rely upon any notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Administrative Agent, which counsel may be employees of the
Administrative Agent.
12.8. The Administrative Agent's Reimbursement and
Indemnification. The Lenders agree to reimburse and indemnify the Administrative
Agent (i) for any amounts not reimbursed by any Borrower for which the
Administrative Agent is entitled to reimbursement by any Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen solely from the Gross Negligence or willful
misconduct of the Administrative Agent.
12.9. Rights as a Lender. With respect to its Commitment,
Loans made by it, and Letters of Credit issued by it, the Administrative Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender or Issuing Bank and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders", "Issuing
Bank" or "Issuing Banks" shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
may accept deposits from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
12.10. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender and based on the financial statements prepared by
the Company and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
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99
Arranger or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
12.11. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Company. Upon any such resignation, the Required Lenders shall have the
right to appoint, on behalf of the Borrowers and the Lenders, a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty days after the retiring Administrative Agent's giving notice of
resignation, then the retiring Administrative Agent may appoint, on behalf of
the Borrowers and the Lenders, a successor Administrative Agent. Notwithstanding
anything herein to the contrary, so long as no Default has occurred and is
continuing, each such successor Administrative Agent shall be subject to
approval by the Company, which approval shall not be unreasonably withheld or
delayed. Such successor Administrative Agent shall be a commercial bank having
capital and retained earnings of at least $500,000,000. Upon the acceptance of
any appointment as the Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XII shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
12.12. Documentation Agent, Syndication Agent, and Arranger.
Neither the Documentation Agent, the Syndication Agent nor the Arranger shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments
with respect to such Lenders as it makes with respect to the Administrative
Agent in Section 12.10.
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if any Default occurs and is
continuing, any Indebtedness from any Lender to the Company or any other
Borrower (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or not the Obligations,
or any part hereof, shall then be due.
13.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Sections 4.1, 4.2 or 4.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such
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100
purchase each Lender will hold its ratable proportion of Loans. In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
13.3. Application of Payments. The Administrative Agent
shall, unless otherwise specified at the direction of the Required Lenders which
direction shall be consistent with the last two sentences of this Section 13.3,
apply all payments and prepayments in respect of any Obligations in the
following order:
(i) first, to pay interest on and then principal of any
portion of the Loans which the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative
Agent has not then been reimbursed by such Lender or the
applicable Borrower;
(ii) second, to pay interest on and then principal of any
advance made under Section 11.3 for which the Administrative
Agent has not then been paid by the applicable Borrower or
reimbursed by the Lenders;
(iii) third, to the ratable payment of the Obligations in
respect of any fees, expenses, reimbursements or indemnities then
due to the Administrative Agent or the Arranger;
(iv) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders
and the issuer(s) of Letters of Credit;
(v) fifth, to pay interest due in respect of Swing Line
Loans;
(vi) sixth, to pay interest due in respect of Loans (other
than Swing Line Loans) and L/C Obligations;
(vii) seventh, to the ratable payment or prepayment of
principal outstanding on Swing Line Loans;
(viii) eighth, to the ratable payment or prepayment of
principal outstanding on Loans (other than Swing Line Loans) and
Reimbursement Obligations; and
(ix) ninth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Company, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Eurodollar Rate
Loans with those Eurodollar Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this Section 13.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Administrative Agent, the Lenders, the Swing Line Bank and the issuer(s) of
Letters of Credit as among themselves. The order of priority set forth in
clauses (iv) through (ix) of this Section 13.3 may at any time and from time to
time be changed by the Required Lenders without necessity of notice to or
consent of or approval by any
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Borrower, or any other Person; provided, that the order of priority of payments
in respect of Swing Line Loans may be changed only with the prior written
consent of the Swing Line Bank. The order of priority set forth in clauses (i)
through (iii) of this Section 13.3 may be changed only with the prior written
consent of the Administrative Agent, and, in the case of clause (iii), with the
prior written consent of the Arranger.
13.4. Relations Among Lenders.
(A) No Action Without Consent. Except with respect to the
exercise of set-off rights of any Lender in accordance with Section
12.1, the proceeds of which are applied in accordance with this
Agreement, and each Lender agrees that it will not take any action,
nor institute any actions or proceedings, against the Borrowers or
any other obligor hereunder or with respect to any Loan Document,
without the prior written consent of the Required Lenders or, as
may be provided in this Agreement or the other Loan Documents, at
the direction of the Administrative Agent.
(B) Not Partners; No Liability. The Lenders are not
partners or co-venturers, and no Lender shall be liable for the
acts or omissions of, or (except as otherwise set forth herein in
case of the Administrative Agent) authorized to act for, any other
Lender. The Administrative Agent shall have the exclusive right on
behalf of the Lenders to enforce on the payment of the principal of
and interest on any Loan after the date such principal or interest
has become due and payable pursuant to the terms of this Agreement.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1. Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the Borrowers
and the Lenders and their respective successors and assigns, except that (A)
other than in connection with a transaction involving a Subsidiary Borrower
which is permitted pursuant to the terms of this Agreement, no Borrower shall
have any right to assign its rights or obligations under the Loan Documents
without the consent of all of the Lenders, and any such assignment in violation
of this Section 14.1(A) shall be null and void, and (B) any assignment by any
Lender must be made in compliance with Section 14.3 hereof. The parties to this
Agreement acknowledge that clause (B) of this Section 14.1 relates only to
absolute assignments and does not prohibit assignments creating security
interests, including, without limitation, (x) any pledge or assignment by any
Lender of all or any portion of its rights under this Agreement and any Note to
a Federal Reserve Bank or (y) in the case of a Lender which is a fund, any
pledge or assignment of all or any portion of its rights under this Agreement
and any Note to its trustee in support of its obligations to its trustee;
provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of
Section 14.3. The Administrative Agent may treat each Lender as the owner of the
Loans made by such Lender hereunder for all purposes hereof unless and until
such Lender complies with Section 14.3 hereof in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Administrative Agent. Any assignee or transferee of a Loan,
Commitment, L/C Interest or any other interest of a Lender under the Loan
Documents agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Sidley Xxxxxx Xxxxx & Xxxx
102
Person, who at the time of making such request or giving such authority or
consent is the owner of any Loan, shall be conclusive and binding on any
subsequent owner, transferee or assignee of such Loan.
14.2. Participations.
(A) Permitted Participants; Effect. Subject to the terms
set forth in this Section 14.2, any Lender may, in the ordinary
course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, the Commitment of such Lender, any L/C Interest of such
Lender or any other interest of such Lender under the Loan
Documents on a pro rata or non-pro rata basis. Notice of such
participation to the Company and the Administrative Agent shall be
required prior to any participation becoming effective with respect
to a Participant which is not a Lender, Designated Lender or an
Affiliate thereof. Upon receiving said notice, the Administrative
Agent shall record the participation in the Register it maintains.
Moreover, notwithstanding such recordation, such participation
shall not be considered an assignment under Section 14.3 of this
Agreement and such Participant shall not be considered a Lender. In
the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of all Loans made
by it for all purposes under the Loan Documents, all amounts
payable by the applicable Borrower under this Agreement shall be
determined as if such Lender had not sold such participating
interests, and the applicable Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents except that, for purposes of Article IV hereof, the
Participants shall be entitled to the same rights as if they were
Lenders.
(B) Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver which, if the
Participant were a Lender hereunder, would require the consent of
such Participant pursuant to the terms of Section 9.2.
(C) Benefit of Setoff. The Borrowers agree that each
Participant shall be deemed to have the right of setoff provided in
Section 13.1 hereof in respect to its participating interest in
amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a
Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 13.1 hereof with
respect to the amount of participating interests sold to each
Participant except to the extent such Participant exercises its
right of setoff. The Lenders agree to share with each Participant,
and each Participant, by exercising the right of setoff provided in
Section 13.1 hereof, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such
amounts to be shared in accordance with Section 13.2 as if each
Participant were a Lender.
Sidley Xxxxxx Xxxxx & Xxxx
103
14.3. Assignments.
(A) Permitted Assignments. Any Lender (each such assigning
Lender under this Section 14.3 being a "Seller") may, in accordance
with applicable law, at any time assign to one or more banks or
other entities that are Eligible Assignees ("Purchasers") all or a
portion of its rights and obligations under this Agreement
(including, without limitation, its Commitment, Loans owing to it,
its participation interests in existing Letters of Credit and Swing
Line Loans, and its obligation to participate in additional Letters
of Credit and Swing Line Loans) in accordance with the provisions
of this Section 14.3. Each assignment shall be of a constant, and
not a varying, ratable percentage of all of the Seller's rights and
obligations under this Agreement. Such assignment shall be
substantially in the form of Exhibit D hereto and shall not be
permitted hereunder unless such assignment is either for all of
such Seller's rights and obligations under the Loan Documents or,
without the prior written consent of the Administrative Agent,
involves loans and commitments in an aggregate amount of at least
Five Million and 00/100 Dollars ($5,000,000) (which minimum amount
shall not apply to any assignment between Lenders, or to an
Affiliate of any Lender). The written consent of the Administrative
Agent, and, prior to the occurrence of a Default, the Company
(which consent, in each such case, shall not be unreasonably
withheld or delayed), shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate of such assigning Lender.
(B) Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in
the form attached as Appendix I to Exhibit D hereto (a "Notice of
Assignment"), together with any consent required by Section 14.3(A)
hereof, (ii) payment of a Four Thousand and 00/100 Dollar ($4,000)
fee by the assignor to the Administrative Agent for processing such
assignment, which fee shall not apply to any assignment from a
Lender to an Affiliate of such Lender, and (iii) the completion of
the recording requirements in Section 14.3(C), such assignment
shall become effective on the later of such date when the
requirements in clauses (i), (ii), and (iii) are met or the
effective date specified in such Notice of Assignment. The Notice
of Assignment shall contain a representation by the Purchaser to
the effect that none of the consideration used to make the purchase
of the Commitment, Loans and L/C Obligations under the applicable
assignment agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after
the effective date of such assignment, such Purchaser, if not
already a Lender, shall for all purposes be a Lender party to this
Agreement and any other Loan Documents executed by the Lenders and
shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by any Borrower, the
Lenders or the Administrative Agent shall be required to release
the Seller with respect to the percentage of the Aggregate
Commitment, Loans and Letter of Credit and Swing Line Loan
participations assigned to such Purchaser. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 14.3(B), the
Seller, the Administrative Agent and the Borrowers shall make
appropriate arrangements so that, to the extent notes have been
issued to evidence any of the transferred Loans, replacement notes
are issued to such Seller and new notes or, as appropriate,
replacement notes, are issued to such
Sidley Xxxxxx Xxxxx & Xxxx
104
Purchaser, in each case in principal amounts reflecting their
Commitments, as adjusted pursuant to such assignment.
Notwithstanding anything to the contrary herein, no Borrower shall,
at any time, be obligated to pay under Section 2.14(E) to any
Lender that is a Purchaser, assignee or transferee any sum in
excess of the sum which such Borrower would have been obligated to
pay in respect of such transferred Loan to the Lender that was the
Seller, assignor or transferor had such assignment or transfer not
been effected.
(C) The Register. Notwithstanding anything to the contrary
in this Agreement, each Borrower hereby designates the
Administrative Agent, and the Administrative Agent, hereby accepts
such designation, to serve as such Borrower's contractual
representative solely for purposes of this Section 14.3(C). In this
connection, the Administrative Agent shall maintain at its address
referred to in Section 15.1 a copy of each assignment delivered to
and accepted by it pursuant to this Section 14.3 and a register
(the "Register") for the recordation of the names and addresses of
the Lenders and the Commitment of, principal amount of and interest
on the Loans owing to, each Lender from time to time and whether
such Lender is an original Lender or the assignee of another Lender
pursuant to an assignment under this Section 14.3. The entries in
the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Company and each of its
Subsidiaries, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by any Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(D) Designated Lender.
(i) Subject to the terms and conditions set forth in this
Section 14.3(D), any Lender may from time to time elect to
designate an Eligible Designee to provide all or any part of the
Loans to be made by such Lender pursuant to this Agreement;
provided that the designation of an Eligible Designee by any
Lender for purposes of this Section 14.3(D) shall be subject to
the approval of the Administrative Agent (which consent shall not
be unreasonably withheld or delayed). Upon the execution by the
parties to each such designation of an agreement in the form of
Exhibit K hereto (a "Designation Agreement") and the acceptance
thereof by the Administrative Agent, the Eligible Designee shall
become a Designated Lender for purposes of this Agreement. The
Designating Lender shall thereafter have the right to permit the
Designated Lender to provide all or a portion of the Loans to be
made by the Designating Lender pursuant to the terms of this
Agreement and the making of the Loans or portion thereof shall
satisfy the obligations of the Designating Lender to the same
extent, and as if, such Loan was made by the Designating Lender.
As to any Loan made by it, each Designated Lender shall have all
the rights a Lender making such Loan would have under this
Agreement and otherwise; provided, (x) that all voting rights
under this Agreement shall be exercised solely by the Designating
Lender, (y) each Designating Lender shall remain solely
responsible to the other parties hereto for its obligations under
this Agreement, including the obligations of a Lender in respect
of Loans made by its Designated Lender and (z) no Designated
Lender shall be entitled to reimbursement under Article IV hereof
for any amount
Sidley Xxxxxx Xxxxx & Xxxx
105
which would exceed the amount that would have been payable by the
Borrowers to the Lender from which the Designated Lender obtained
any interests hereunder. No additional Notes shall be required
with respect to Loans provided by a Designated Lender; provided,
however, to the extent any Designated Lender shall advance funds,
the Designating Lender shall be deemed to hold the Notes in its
possession as an agent for such Designated Lender to the extent
of the Loan funded by such Designated Lender. Such Designating
Lender shall act as administrative agent for its Designated
Lender and give and receive notices and communications hereunder.
Any payments for the account of any Designated Lender shall be
paid to its Designating Lender as administrative agent for such
Designated Lender and neither the Borrowers nor the
Administrative Agent shall be responsible for any Designating
Lender's application of such payments. In addition, any
Designated Lender may (1) with notice to, but without the consent
of the Borrowers or the Administrative Agent, assign all or
portions of its interests in any Loans to its Designating Lender
or to any financial institution consented to by the
Administrative Agent providing liquidity and/or credit facilities
to or for the account of such Designated Lender and (2) subject
to advising any such Person that such information is to be
treated as confidential in accordance with such Person's
customary practices for dealing with confidential, non-public
information, disclose on a confidential basis any non-public
information relating to its Loans to any rating agency,
commercial paper dealer or provider of any guarantee, surety or
credit or liquidity enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that it
shall not institute against, or join any other Person in
instituting against any Designated Lender any bankruptcy,
reorganization, arrangements, insolvency or liquidation
proceeding or other proceedings under any federal or state
bankruptcy or similar law for one year and a day after the
payment in full of all outstanding senior indebtedness of any
Designated Lender; provided that the Designating Lender for each
Designated Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage and
expense arising out of their inability to institute any such
proceeding against such Designated Lender. This Section
14.3(D)(ii) shall survive the termination of this Agreement.
14.4. Confidentiality. Subject to Section 14.5, the
Administrative Agent and the Lenders and their respective representatives,
consultants and advisors shall hold all nonpublic information obtained pursuant
to the requirements of this Agreement and identified as such by the Company or
any other Borrower in accordance with such Person's customary procedures for
handling confidential information of this nature and in accordance with safe and
sound commercial lending or investment practices and in any event may make
disclosure reasonably required by a prospective Transferee in connection with
the contemplated participation or assignment or as required or requested by any
Governmental Authority or any securities exchange or similar self-regulatory
organization or representative thereof or pursuant to a regulatory examination
or legal process, or to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor, and shall
(x) use its commercially reasonable efforts to give prior notice of any such
disclosure to the extent permitted by applicable law, and (y) require any such
Transferee to agree (and require any of its Transferees to agree) to comply with
this Section 14.4. In no event shall the Administrative
Sidley Xxxxxx Xxxxx & Xxxx
106
Agent or any Lender be obligated or required to return any materials furnished
by the Company; provided, however, each prospective Transferee shall be required
to agree that if it does not become a participant or assignee it shall return
all materials furnished to it by or on behalf of the Company in connection with
this Agreement.
14.5. Dissemination of Information. Each Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the Borrowers and its Subsidiaries; provided that
prior to any such disclosure, such prospective Transferee shall agree to
preserve in accordance with Section 14.4 the confidentiality of any confidential
information described therein.
ARTICLE XV: NOTICES
15.1. Giving Notice. Except as otherwise permitted by Section
2.13 with respect to Borrowing/Election Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given three (3) Business Days after mailed; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes); or any notice, if transmitted by
courier, one (1) Business Day after deposit with a reputable overnight carrier
service, with all charges paid.
15.2. Change of Address. The Borrowers, the Administrative
Agent and any Lender may each change the address for service of notice upon it
by a notice in writing to the other parties hereto.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
Sidley Xxxxxx Xxxxx & Xxxx
107
IN WITNESS WHEREOF, the Borrowers, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
CHICAGO BRIDGE & IRON COMPANY
N.V., as the Company
By: CHICAGO BRIDGE & IRON COMPANY
B.V.
Its: Managing Director
By:
-----------------------------
Name:
Title: Managing Director
Address:
c/o Chicago Bridge & Iron Company
Town Center One
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
0000 X.Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
CB&I CONSTRUCTORS, INC., as a
Subsidiary Borrower
By:
-----------------------------
Name:
Title:
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
Address:
c/o Chicago Bridge & Iron Company
Town Center One
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
CBI SERVICES, INC., as a Subsidiary
Borrower
By:
--------------------------------
Name:
Title:
Address:
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Chicago Bridge & Iron Company
Town Center One
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
CHICAGO BRIDGE & IRON COMPANY
(DELAWARE), as a Subsidiary Borrower
By:
------------------------------
Name:
Title:
Address:
c/o Chicago Bridge & Iron Company
Town Center One
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
CB&I TYLER COMPANY as a Subsidiary
Borrower
By:
-------------------
Name:
Title:
Address:
c/o Chicago Bridge & Iron Company
Town Center One
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
with a copy to:
c/o Chicago Bridge & Iron Company
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice
President & Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
BANK ONE, NA (having its principal office in
Chicago, Illinois), as Administrative Agent
and as a Lender
By:
------------------------------
Name:
Title:
Notice Address:
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Installation Address:
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
BANK OF AMERICA, N.A., as Syndication
Agent and as a Lender
By:
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
Notice Address:
Bank of America, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Installation Address:
Bank of America, N.A.
CA9-706-11-07
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
XXXXXX TRUST AND SAVINGS BANK, as
Documentation Agent and as a Lender
By:
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
Notice Address:
000 X. Xxxxxx Xxxxxx
5th Floor West
Chicago, Illinois 60603
Attention: Xxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Lending Installation Address:
000 X. Xxxxxx Xxxxxx
5th Floor West
Chicago, Illinois 60603
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
CREDIT SUISSE FIRST BOSTON, as a
Lender
By:
-------------------------------
Name:
Title:
Notice Address:
-----------------------------
-----------------------------
-----------------------------
Attention:
----------------------------
Telephone:
----------------------------
Facsimile:
----------------------------
Lending Installation Address:
-----------------------------
-----------------------------
-----------------------------
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
THE NORTHERN TRUST COMPANY, as a
Lender
By:
-------------------------------
Name:
Title:
Notice Address:
-----------------------------
-----------------------------
-----------------------------
Attention:
----------------------------
Telephone:
----------------------------
Facsimile:
----------------------------
Lending Installation Address:
-----------------------------
-----------------------------
-----------------------------
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
XXXXX FARGO BANK TEXAS, N.A., as
a Lender
By:
-------------------------------
Name:
Title:
Notice Address:
-----------------------------
-----------------------------
-----------------------------
Attention:
----------------------------
Telephone:
----------------------------
Facsimile:
----------------------------
Lending Installation Address:
-----------------------------
-----------------------------
-----------------------------
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
XXXXXX COMMERCIAL PAPER INC., as a
Lender
By:
-------------------------------
Name:
Title:
Notice Address:
-----------------------------
-----------------------------
-----------------------------
Attention:
----------------------------
Telephone:
----------------------------
Facsimile:
----------------------------
Lending Installation Address:
-----------------------------
-----------------------------
-----------------------------
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
ATTACHMENT A
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Second Amended and Restated Credit Agreement dated as of August
19, 2002 by and among CHICAGO BRIDGE & IRON COMPANY N.V. (the "Company"), CB&I
CONSTRUCTORS, INC., CBI SERVICES, INC., CHICAGO BRIDGE & IRON COMPANY (DELAWARE)
and CB&I TYLER COMPANY (collectively, the "Subsidiary Borrowers", and, together
with the Company, the "Borrowers"), the financial institutions from time to time
party thereto (the "Lenders"), BANK ONE, NA (having its principal office in
Chicago, Illinois), in its individual capacity as a Lender and in its capacity
as contractual representative (the "Administrative Agent"), BANK OF AMERICA,
N.A., as Syndication Agent, and XXXXXX TRUST AND SAVINGS BANK, as Documentation
Agent (and as the same have been or may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"). Capitalized terms
used in this Reaffirmation and not defined herein shall have the meanings given
to them in the Credit Agreement. Without in any way establishing a course of
dealing by the Administrative Agent or any Lender, each of the undersigned
reaffirms the terms and conditions of the Subsidiary Guaranty and any other Loan
Document executed by it and acknowledges and agrees that such agreement and each
and every such Loan Document executed by the undersigned in connection with the
Credit Agreement remains in full force and effect and is hereby reaffirmed,
ratified and confirmed. All references to the "4-Year Credit Agreement"
contained in the above-referenced documents shall be a reference to the Credit
Agreement, as the same may from time to time hereafter be amended, modified or
restated.
Dated: August 19, 0000
Xxxxxx Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
CHICAGO BRIDGE & IRON COMPANY
By
----------------------
Name:
Title:
CHICAGO BRIDGE & IRON COMPANY
(DELAWARE)
By
----------------------
Name:
Title:
CB&I TYLER COMPANY
By
----------------------
Name:
Title:
CB&I CONSTRUCTORS, INC.
By
----------------------
Name:
Title:
CBI SERVICES, INC.
By
----------------------
Name:
Title:
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
XXXXXX CBI, LIMITED ARABIAN GULF MATERIAL SUPPLY
COMPANY, LTD
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CBI VENEZOLANA, S.A. ASIA PACIFIC SUPPLY CO.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CBI EASTERN ANSTALT CBI COMPANY LTD.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CBI CONSTRUCTORS PTY, LTD. CBI CONSTRUCCIONES S.A.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
XXXXXXX FINANCE COMPANY B.V. CBI CONSTRUCTORS LIMITED
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CB&I (EUROPE) B.V. CBI HOLDINGS (U.K.) LIMITED
By By
---------------------- -----------------------
Name: Name:
Title: Title:
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
XXXX-XXXXX INTERNATIONAL,
CBI OVERSEAS, LLC L.L.C.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CENTRAL TRADING COMPANY, LTD. XXXX-XXXXX ENGINEERS, LTD.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CHICAGO BRIDGE & IRON (ANTILLES) XXXX-XXXXX HOLDINGS, L.L.C.
N.V.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CHICAGO BRIDGE & IRON COMPANY XXXX-XXXXX MANAGEMENT, L.L.C.
B.V.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
CMP HOLDINGS B.V. XXXX-XXXXX, X.X.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
PACIFIC RIM MATERIAL SUPPLY MATRIX ENGINEERING, LTD.
COMPANY, LTD.
By By
---------------------- -----------------------
Name: Name:
Title: Title:
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
HBI HOLDINGS, L.L.C. CONSTRUCTORS INTERNATIONAL, L.L.C.
By By
---------------------- ---------------------
Name: Name:
Title: Title:
XXXX-XXXXX INTERNATIONAL SOUTHERN TROPIC MATERIAL
MANAGEMENT, L.L.C. SUPPLY COMPANY, LTD.
By By
---------------------- ---------------------
Name: Name:
Title: Title:
A&B BUILDERS, LTD. XL TECHNOLOGY SYSTEMS, INC.
By By
---------------------- ---------------------
Name: Name:
Title: Title:
MATRIX MANAGEMENT SERVICES, CB&I (NIGERIA) LIMITED
L.L.C.
By By
---------------------- ---------------------
Name: Name:
Title: Title:
CALLIDUS TECHNOLOGIES INTERNATIONAL, CHICAGO BRIDGE & IRON (ESPANA).
L.L.C. S.A.
By By
---------------------- ---------------------
Name: Name:
Title: Title:
CALLIDUS TECHNOLOGIES, L.L.C. ULTRAPURE SYSTEMS (ASIA PACIFIC)
PTE. LTD.
By By
---------------------- ---------------------
Name: Name:
Title: Title:
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
CBI CONSTRUCTORS S.A. ARABIAN CBI LTD.
(PROPRIETARY) LIMITED
By By
---------------------- ---------------------
Name: Name:
Title: Title:
CBI EASTERN ANSTALT CBI (PHILLIPINES), INC.
By By
---------------------- ---------------------
Name: Name:
Title: Title:
Sidley Xxxxxx Xxxxx & Xxxx
Signature Page to Second Amended and Restated Credit Agreement
Dated August, 2002
