EXHIBIT 10.12
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AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of July 25, 1997
among
XXXXX XXXXXXXXXXX COMPANY,
XXXXX XXXXXXXXXXX AUSTRALIA PTY LIMITED,
VARIOUS FINANCIAL INSTITUTIONS,
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Letter of Credit Issuer,
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
Arranged by BA SECURITIES, INC.
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TABLE OF CONTENTS
Page
PREAMBLE ...............................1
SECTION 1 DEFINITIONS........................................................1
1.1 Definitions..........................................................1
1.2 Other Interpretive Provisions.......................................23
SECTION 2 COMMITMENTS OF THE BANKS; U.S. AND AUSTRALIAN
BORROWING PROCEDURES; LETTER OF CREDIT
PROCEDURES..........................................................24
2.1 Commitments.........................................................24
2.1.1 U.S. Loan Commitment.........................................24
2.1.2 Australian Loan Commitment...................................24
2.1.3 Letter of Credit Commitment..................................24
2.1.4 Commitment Limits............................................24
2.1.5 Valuation of Australian Loans and Certain
Letters of Credit..........................................25
2.2 U.S. Loan Procedures................................................25
2.2.1 Various Types of U.S. Loans..................................25
2.2.2 Borrowing Procedures for U.S. Loans..........................25
2.2.3 Conversion and Continuation Procedures for
U.S. Loans................................................26
2.3 Australian Loan Procedures..........................................27
2.3.1 Various Types of Australian Loans.............................27
2.3.2 Borrowing Procedures for Australian
Loans.....................................................27
2.3.3 Continuation Procedures for Australian
Loans.....................................................28
2.3.4 Participations in Australian Loans...........................28
2.3.5 Australian Participation Obligations Unconditional...........30
2.4 Letter of Credit Procedures.........................................30
2.4.1 Issuance of Letters of Credit................................30
2.4.2 Participations in Letters of Credit..........................31
2.4.3 Reimbursement Obligations....................................31
2.4.4 Limitation on the Issuer's Obligations.......................32
2.4.5 Funding by Banks to the Issuer...............................32
2.5 Pro Rata Treatment..................................................33
2.6 Warranty............................................................33
2.7 Conditions..........................................................33
2.8 Commitments Several.................................................34
2.9 Payments by the Banks to the Agent..................................34
SECTION 3 NOTES EVIDENCING LOANS.............................................35
3.1 Notes...............................................................35
3.2 Recordkeeping.......................................................35
SECTION 4 INTEREST...........................................................35
4.1 Interest Rates......................................................35
4.2 Interest Payment Dates..............................................36
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4.3 Setting and Notice of Certain Rates.................................36
4.4 Computation of Interest.............................................36
SECTION 5 FEES...............................................................37
5.1 Facility Fee........................................................37
5.2 Letter of Credit Fees...............................................37
5.3 Agent's and Arranger's Fees.........................................38
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS........................................................38
6.1 Reduction or Termination of the Commitments.........................38
6.1.1 Scheduled Mandatory Reductions of the
Aggregate Commitment.......................................38
6.1.2 Additional Mandatory Reductions of the Aggregate
Commitment...................................................38
6.1.3 Voluntary Reduction or Termination of Commitments............39
6.1.4 All Reductions Pro Rata......................................39
6.2 Prepayments.........................................................39
6.2.1 Mandatory Prepayments Resulting from
Commitment Reductions.....................................39
6.2.2 Mandatory Prepayments Resulting from
Currency Fluctuations..........................................40
6.2.3 Voluntary Prepayments........................................40
6.2.4 All Prepayments..............................................40
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES....................41
7.1 Making of Payments..................................................41
7.2 Application of Certain Payments.....................................41
7.3 Due Date Extension..................................................41
7.4 Setoff..............................................................42
7.5 Proration of Payments...............................................42
7.6 Taxes with respect to Payments by the Company.......................42
7.7 Taxes with respect to Payments by Xxxxx
Australia.........................................................44
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
FIXED RATE LOANS...................................................46
8.1 Increased Costs.....................................................46
8.2 Basis for Determining Interest Rate Inadequate
or Unfair...........................................................48
8.3 Changes in Law Rendering Fixed Rate Loans
Unlawful............................................................48
8.4 Funding Losses......................................................49
8.5 Right of Banks to Fund through Other Offices........................50
8.6 Discretion of Banks as to Manner of Funding.........................50
8.7 Mitigation of Circumstances; Replacement of
Affected Bank.......................................................50
8.8 Conclusiveness of Statements; Survival of
Provisions..........................................................51
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SECTION 9 WARRANTIES........................................................51
9.1 Organization, etc...................................................51
9.2 Authorization; No Conflict..........................................52
9.3 Validity and Binding Nature.........................................52
9.4 Financial Information...............................................53
9.5 No Material Adverse Change..........................................53
9.6 Litigation and Contingent Liabilities...............................53
9.7 Ownership of Properties; Liens......................................54
9.8 Subsidiaries........................................................54
9.9 Pension and Welfare Plans...........................................54
9.10 Investment Company Act.............................................54
9.11 Public Utility Holding Company Act.................................54
9.12 Regulation U.......................................................55
9.13 Taxes..............................................................55
9.14 Solvency, etc......................................................55
9.15 Hazardous Materials................................................55
9.15.1 Release and Disposal.......................................55
9.15.2 Treatment and Storage......................................56
9.16 Information........................................................56
9.17 Xxxxxxx Acquisition.................................................56
9.18 No Trusteeships.....................................................56
SECTION 10 COVENANTS........................................................57
10.1 Reports, Certificates and Other Information........................57
10.1.1 Audit Report...............................................57
10.1.2 Quarterly Reports..........................................57
10.1.3 Monthly Reports............................................58
10.1.4 Compliance Certificates....................................58
10.1.5 Reports to SEC and to Shareholders.........................58
10.1.6 Notice of Default, Litigation and ERISA
Matters..................................................58
10.1.7 Subsidiaries...............................................59
10.1.8 Management Reports.........................................59
10.1.9 Projections................................................59
10.1.10 Other Information..........................................59
10.2 Books, Records and Inspections.....................................59
10.3 Insurance..........................................................60
10.4 Compliance with Laws; Payment of Taxes and
Liabilities......................................................60
10.5 Maintenance of Existence, etc......................................61
10.6 Financial Covenants................................................61
10.6.1 Minimum Interest Coverage..................................61
10.6.2 Maximum Leverage...........................................61
10.6.3 Debt to Capitalization Ratio...............................61
10.6.4 Minimum Net Worth..........................................62
10.6.5 Capital Expenditures.......................................62
10.7 Limitations on Debt................................................62
10.8 Liens..............................................................63
10.9 Business...........................................................64
10.10 Restricted Payments...............................................64
10.11 Investments.......................................................65
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10.12 Mergers, Consolidations, Sales....................................66
10.13 Modification of Organizational Documents..........................67
10.14 Use of Proceeds...................................................67
10.15 Further Assurances................................................67
10.16 Transactions with Affiliates......................................68
10.17 Employee Benefit Plans............................................68
10.18 Environmental Covenants...........................................68
10.18.1 Environmental Response Obligation.......................68
10.18.2 Environmental Liabilities...............................69
10.19 Unconditional Purchase Obligations................................69
10.20 Inconsistent Agreements...........................................69
10.21 Subsidiaries......................................................69
10.22 Other Financial Covenants.........................................69
SECTION 11 CONDITIONS PRECEDENT.............................................70
11.1 Conditions to Effectiveness.........................................70
11.1.1 Agreement and Notes..........................................70
11.1.2 Resolutions.................................................70
11.1.3 Incumbency and Signature Certificates.......................70
11.1.4 Guaranty....................................................71
11.1.5 Opinions of Counsel for the Company and
the Guarantors............................................71
11.1.6 Insurance Certificate.......................................71
11.1.7 Other.......................................................71
11.2 All Loans and Letters of Credit.....................................71
11.2.1 No Default..................................................71
11.2.2 Confirmatory Certificate....................................71
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT...............................72
12.1 Events of Default..................................................72
12.1.1 Non-Payment of the Loans, etc..............................72
12.1.2 Non-Payment of Other Debt..................................72
12.1.3 Other Material Obligations.................................72
12.1.4 Bankruptcy, Insolvency, etc................................72
12.1.5 Non-Compliance with Provisions of This Agreement...........73
12.1.6 Warranties.................................................73
12.1.7 Pension Plans..............................................73
12.1.8 Judgments..................................................73
12.1.9 Invalidity of Guaranty, etc................................74
12.1.10 Change in Control.........................................74
12.1.11 Bonding Agreements........................................74
12.2 Effect of Event of Default.........................................74
SECTION 13 THE AGENT........................................................75
13.1 Appointment and Authorization......................................75
13.2 Delegation of Duties...............................................76
13.3 Liability of Agent.................................................76
13.4 Reliance by Agent..................................................77
13.5 Notice of Default..................................................77
13.6 Credit Decision....................................................78
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13.7 Indemnification....................................................78
13.8 Agent in Individual Capacity.......................................79
13.9 Successor Agent....................................................79
13.10 Other Agents......................................................80
SECTION 14 GUARANTY BY THE COMPANY..........................................80
14.1 Guaranty...........................................................80
14.2 Guaranty Unconditional.............................................80
14.3 Discharge only upon Payment in Full; Reinstatement
in Certain Circumstances..........................................81
14.4 Waiver by the Company..............................................82
14.5 Subrogation........................................................82
14.6 Stay of Acceleration...............................................82
SECTION 15 GENERAL..........................................................82
15.1 Waiver; Amendments.................................................82
15.2 Confirmations......................................................83
15.3 Notices............................................................83
15.4 Computations.......................................................84
15.5 Regulation U.......................................................84
15.6 Costs, Expenses and Taxes..........................................84
15.7 Subsidiary References..............................................84
15.8 Captions...........................................................85
15.9 Assignments; Participations........................................85
15.9.1 Assignments................................................85
15.9.2 Participations.............................................86
15.10 Governing Law.....................................................87
15.11 Counterparts......................................................87
15.12 Successors and Assigns............................................88
15.13 Indemnification by the Borrowers..................................88
15.14 Confidentiality...................................................89
15.15 Payments Set Aside................................................89
15.16 No Third Parties Benefited........................................89
15.17 Forum Selection and Consent to Jurisdiction.......................90
15.18 Waiver of Jury Trial..............................................90
15.19 Judgment..........................................................90
15.20 Amendment and Restatement; Return of Notes........................91
15.21 Entire Agreement..................................................91
15.22 Intercreditor Agreement...........................................91
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SCHEDULES
SCHEDULE 1.1(a) Commitments, Percentages and Australian
Percentages
SCHEDULE 1.1(b) Pricing Schedule
SCHEDULE 1.1(c) Existing Letters of Credit
SCHEDULE 1.1(d) Investments as of February 29, 1996
SCHEDULE 6.1.1 Scheduled Commitment Reductions
SCHEDULE 9.6 Litigation and Contingent Liabilities
SCHEDULE 9.8 Subsidiaries
SCHEDULE 9.9 Welfare Plans
SCHEDULE 10.7(1) Permitted Debt
SCHEDULE 10.7(o) Xxxxxxx Debt to be Repaid
SCHEDULE 10.8 Liens
SCHEDULE 10.11 Investments
EXHIBITS
EXHIBIT A Form of Note (Section 3.1)
EXHIBIT B Form of Notice of Borrowing (U.S. Loans)
(Section 2.2.2)
EXHIBIT C Form of Notice of Conversion/Continuation
(U.S. Loans) (Section 2.2.3)
EXHIBIT D Form of Notice of Borrowing (Australian
Loans) (Section 2.3.2)
EXHIBIT E Form of Notice of Continuation (Australian
Loans)(Section 2.3.3)
EXHIBIT F Form of Compliance Certificate
(Section 9.1.4)
EXHIBIT G Form of Guaranty (Section 11.1.4)
EXHIBIT H Form of Opinion of Xxxxxx and Xxxxxxx
(Section 11.1.5)
EXHIBIT I Form of Opinion of Xxxx X. Xxxxxx
(Section 11.1.5)
EXHIBIT J Form of Opinion of Xxxxx & XxXxxxxx
(Section 11.1.5)
EXHIBIT K Form of Opinion of Prince, Yeates &
Xxxxxxxxxx (Section 11.1.5)
EXHIBIT L Form of Assignment Agreement
(Section 15.9)
EXHIBIT M Form of Intercreditor Agreement
(Section 15.22)
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AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 25, 1997 (this
"Agreement") is entered into among XXXXX XXXXXXXXXXX COMPANY, a Delaware
corporation (the "Company"), XXXXX XXXXXXXXXXX AUSTRALIA PTY LIMITED ACN 078 167
610, a company incorporated in New South Wales ("Xxxxx Australia"), the
undersigned financial institutions (together with their respective successors
and assigns, collectively the "Banks" and individually each a "Bank"), and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (in its individual capacity,
"BofA"), as letter of credit issuer and as agent for the Banks.
WHEREAS, the Company, various financial institutions and BofA, as agent,
have entered into a Credit Agreement dated as of March 15, 1996 (the "EXISTING
AGREEMENT"); and
WHEREAS, the parties hereto desire to amend and restate the Existing
Agreement in its entirety pursuant hereto;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 DEFINITIONS.
1.1 DEFINITIONS. When used herein the following terms shall have the
following meaning (such definitions to be applicable to both the singular and
plural forms of such terms):
ACQUISITION means any transaction or series of related transactions for the
purpose of or resulting, directly or indirectly, in (a) the acquisition of all
or substantially all of the assets of a Person, or of any business or division
of a Person, (b) the acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Company or the Subsidiary is the
surviving entity.
ADJUSTED EBITA means, for any Computation Period, EBITA for such
Computation Period less affiliate equity earnings, plus affiliate dividends
(limited to amount of affiliate equity earnings). To the extent not included
above, Adjusted EBITA will
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be calculated as if Xxxxxxx had been a Subsidiary of the Company throughout such
Computation Period.
ADJUSTED EBITDA means, for any Computation Period, Adjusted EBITA for such
Computation Period PLUS, to the extent deducted in determining Consolidated Net
Income for such Computation Period, depreciation for such Computation Period.
To the extent not included above, Adjusted EBITDA will be calculated as if
Xxxxxxx had been a Subsidiary of the Company throughout such Computation Period.
AFFECTED BANK means any Bank that has given notice to either Borrower
(which has not been rescinded) of (i) any obligation by such Borrower to pay any
amount pursuant to SECTION 7.6 or 8.1 or (ii) the occurrence of any
circumstances of the nature described in SECTION 8.2 or 8.3.
AFFECTED LOAN - see SECTION 8.3.
AFFILIATE of any Person means any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person.
AGENT means BofA in its capacity as agent for the Banks hereunder and any
successor thereto in such capacity.
AGENT-RELATED PERSONS means BofA and any successor agent arising under
SECTION 13.9, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
AGENT'S PAYMENT OFFICE means the applicable address for payments (in
respect of U.S. Dollars or Australian Dollars) set forth on the signature page
hereof with respect to the Agent, or such other address as the Agent may from
time to time specify in accordance with SECTION 14.3.
AGGREGATE AUSTRALIAN COMMITMENT means at any time an amount equal to the
lesser of (a) the Aggregate Commitment and (b) a Dollar Equivalent amount of
U.S.$30,000,000.
AGGREGATE COMMITMENT means at any time an amount equal to the aggregate
amount of the Commitments of all Banks.
AGGREGATE OUTSTANDINGS means at any time the sum of (a) the aggregate
Dollar Equivalent principal amount of all outstanding Loans and (b) the Stated
Amount of all Letters of Credit.
AGREEMENT - see the PREAMBLE.
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ALTERNATE REFERENCE RATE means at any time the greater of (a) the Federal
Funds Rate plus 1/2 of 1% per annum and (b) the rate per annum then most
recently publicly announced by BofA as its reference rate at San Francisco,
California. (The "reference rate" is a rate set by BofA based upon various
factors, including BofA's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate.)
ARRANGER means BA Securities, Inc., a Delaware corporation.
ASSIGNEE - see SECTION 15.9
ASSIGNMENT AGREEMENT - see SECTION 15.9.1.
ATTORNEY COSTS means and includes all reasonable fees and disbursements of
any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
AUSTRALIAN BANK means each Bank designated as an "Australian Bank" on
SCHEDULE 1.1(A) and each other Bank which becomes an Australian Bank hereunder
pursuant to SECTION 15.9.1. Any Bank may designate an Australian affiliate of
such Bank to perform all obligations, and have all rights, of such Bank
hereunder in respect of Australian Loans, in which case references herein to an
"Australian Bank" shall, where appropriate, mean such designated affiliate. Any
such designation shall be made either (i) by causing such affiliate to execute a
signature page hereof or (ii) by written notice to the Borrowers and the Agent
(including any notice changing the designation of such Bank's affiliate which
will act as an Australian Bank); PROVIDED that any affiliate designated pursuant
to CLAUSE (II) shall execute an agreement satisfactory to the Borrowers and the
Agent agreeing to become a party hereto as an Australian Bank. No affiliate of
a Bank which has been designated to act as an Australian Bank hereunder shall
have any obligation hereunder in respect to U.S. Loans or Letters of Credit.
AUSTRALIAN COMPUTATION DATE means the last Business Day of each calendar
month, each date on which Xxxxx Australia borrows or continues any Australian
Loan hereunder and each date on which the Dollar Equivalent amount of an
Australian Loan of an Affected Bank is required to be determined under SECTION
8.3.
AUSTRALIAN DOLLARS and A$ mean lawful money of Australia.
AUSTRALIAN LOAN - see SECTION 2.1.2.
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AUSTRALIAN PARTICIPATION FUNDING NOTICE means a written notice from any
Bank (including any Australian Bank) advising the Agent that an Event of Default
exists and directing the Agent to notify all Non-Australian Banks to fund their
participations in Australian Loans as provided in SECTION 2.3.4.
AUSTRALIAN PERCENTAGE means, as to any Australian Bank, the percentage
equivalent at such time of such Australian Bank's portion of the Aggregate
Australian Commitment DIVIDED BY the Aggregate Australian Commitment. The
initial Australian Percentage of each Australian Bank is set forth opposite such
Bank's name on SCHEDULE 1.1(A).
AVAILABLE CURRENCY means U.S. Dollars, Australian Dollars and any other
currency that in the opinion of the Agent is freely transferable and freely
convertible into U.S. Dollars.
BANK - see the PREAMBLE. The term "Bank" shall include, where appropriate
(but subject to the last sentence of the definition of Australian Bank), any
affiliate of a Bank which is designated to act as an Australian Bank hereunder.
BANK XXXX RATE means, with respect to any Interest Period for a Xxxx Rate
Loan:
(a) the rate determined by the Agent to be the average buying rate
(rounded up, if necessary, to the nearest four decimal places) displayed at
or about 10:10 a.m. (Sydney time) on the first day of such Interest Period
on the Reuters screen BBSY page for a term equivalent to such Interest
Period; or
(b) if (i) for any reason there is no rate displayed for a period
equivalent to such Interest Period; or (ii) the basis of calculation of
such rate is changed after the date hereof and in the reasonable opinion of
the Agent it ceases to reflect the Australian Banks' cost of funding to the
same extent as of the date of this Agreement, then the Bank Xxxx Rate will
be the rate determined by the Agent to be the average of the buying rates
quoted to BofA by each of three Australian banks selected by BofA at or
about that time on that date. The buying rates must be for bills of
exchange which are accepted by an Australian bank selected by BofA and
which have a term equivalent to such Interest Period.
The Bank Xxxx Rate will be expressed as a yield per cent per annum to
maturity.
XXXX RATE LOAN means any Australian Loan which bears interest at a rate
determined by reference to the Bank Xxxx Rate.
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XXXX RATE OFFICE means, with respect to the Agent or any Bank, the office
or offices of such Person which shall be making or maintaining the Xxxx Rate
Loans of such Person hereunder or such other office or offices through which
such Person determines the Bank Xxxx Rate.
BOFA - see the PREAMBLE.
BORROWER means each of the Company and Xxxxx Australia.
BUSINESS DAY means any day on which commercial banks are open for
commercial banking business in Chicago, Illinois and San Francisco, California,
and (i) in the case of a Business Day which relates to any Eurodollar Loan, on
which dealings are carried on in the relevant interbank eurodollar market (which
shall be New York in the case of Eurodollar Loans to the Company and London in
the case of Eurodollar Loans to Xxxxx Australia), and (ii) in the case of a
Business Day which relates to an Australian Loan, on which banks are open for
business in Sydney and Melbourne.
CAPITAL LEASE means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such
Person which, in conformity with GAAP, is accounted for as a capital lease on
the balance sheet of such Person.
CASH EQUIVALENT INVESTMENT means, at any time:
(a) any evidence of Debt, maturing not more than one year after such
time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than one year from the date
of issue, which is issued by
(i) a corporation (except the Company or an Affiliate of the
Company) organized under the laws of any State of the United States of
America or of the District of Columbia and rated at least A-1 by
Standard & Poor's Corporation or P-1 by Xxxxx'x Investors Service,
Inc., at the time of investment, or
(ii) any Bank (or its holding company);
(c) any certificate of deposit or bankers' acceptance or eurodollar
time deposit, maturing not more than one year after the date of issue,
which is issued by either
(i) a financial institution that is a member of the Federal
Reserve System and has a combined capital
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and surplus and undivided profits of not less than U.S.$100,000,000,
or
(ii) any Bank; or
(d) any repurchase agreement with a term of one year or less which
(i) is entered into with
(A) any Bank, or
(B) any other commercial banking institution of the stature
referred to in CLAUSE (C)(I),
(ii) is secured by a fully perfected Lien in any obligation of
the type described in any of CLAUSES (A) through (C), and
(iii) has a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation of
such Bank (or other commercial banking institution) thereunder; or
(e) investments in money market funds that invest solely in Cash
Equivalent Investments described in CLAUSES (A) through (D).
CODE means the Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder.
COMMITMENT means, as to any Bank as the context may require, (i) the
obligation of such Bank to make U.S. Loans, to make or participate in Australian
Loans and to issue or participate in Letters of Credit pursuant hereto in a
Dollar Equivalent amount not to exceed the amount set forth for such Bank on
SCHEDULE 1.1(A) hereto, as adjusted from time to time in accordance with the
terms hereof, and (ii) such amount as so adjusted.
COMMITMENT REDUCTION DATE - see SECTION 6.1.1.
COMPANY - see the PREAMBLE.
COMPUTATION DATE means the last Business Day of each calendar month, each
date on which a Borrower borrows, converts or continues any Loan hereunder or on
which any Letter of Credit is issued hereunder, each date on which the Aggregate
Commitment is reduced pursuant to SECTION 6.1, and each date on which the Dollar
Equivalent amount of the Loan of an Affected Bank is required to be determined
under SECTION 8.3.
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COMPUTATION PERIOD means any period of four consecutive Fiscal Quarters
ending on the last day of a Fiscal Quarter.
CONSOLIDATED ADJUSTED NET INCOME for any period means net income or net
loss of the Company and its Restricted Subsidiaries for such period, determined
in accordance with GAAP on a consolidated basis after eliminating earnings or
losses attributable to outstanding Minority Interests, but excluding in any
event:
(a) any gains or losses on the sale or other disposition of fixed or
capital assets other than in the ordinary course of business, and any taxes
on such excluded gains and any tax deductions or credits on account of any
such excluded losses;
(b) to the extent not included in the preceding CLAUSE (A), any gains
or losses arising in connection with any extraordinary or nonrecurring
event, and any taxes on such excluded gains and any tax deductions or
credits on account of any excluded losses;
(c) the proceeds of any life insurance policy;
(d) net earnings and losses of any Restricted Subsidiary accrued
prior to the Fiscal Quarter in which it became a Restricted Subsidiary
(other than a Restricted Subsidiary designated as such on the date of this
Agreement);
(e) net earnings and losses of any corporation (other than a
Restricted Subsidiary), substantially all the assets of which have been
acquired in any manner by the Company or any Restricted Subsidiary,
realized by such corporation prior to the date of such acquisition;
(f) net earnings and losses of any corporation (other than a
Restricted Subsidiary) with which the Company or a Restricted Subsidiary
shall have consolidated or which shall have merged into or with the Company
or a Restricted Subsidiary prior to the date of such consolidation or
merger;
(g) net earnings of any business entity (other than a Restricted
Subsidiary) in which the Company or any Restricted Subsidiary has an
ownership interest unless such net earnings shall have actually been
received by the Company or such Restricted Subsidiary in the form of cash
distributions;
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(h) any portion of the earnings of any Restricted Subsidiary which
for any reason is unavailable for payment of dividends to the Company or
any other Restricted Subsidiary;
(i) earnings resulting from any reappraisal, revaluation or write-up
of assets;
(j) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of acquisition thereof over the amount
invested in such Subsidiary;
(k) any gain arising from the acquisition of any securities of the
Company or any Restricted Subsidiary; and
(l) any reversal of any contingency reserve, excluding reserves in
respect of self-insurance by the Company of workmen's compensation
obligations and other reserves arising in the ordinary course of business
in an aggregate amount not in excess of a Dollar Equivalent amount of U.S.
$500,000, and except to the extent that provision for such contingency
reserve shall have been made from income arising during such period.
CONSOLIDATED ADJUSTED NET WORTH means, as of the date of any determination
thereof, Stockholder's Equity as of such date of determination less the total
amount of all Restricted Investments in excess of 10% of Stockholders' Equity as
of such date of determination.
CONSOLIDATED NET INCOME means, with respect to the Company and its
Subsidiaries for any period, the net income (or loss) of the Company and its
Subsidiaries for such period; PROVIDED that there shall be excluded therefrom
the income of all Subsidiaries to the extent that (a) the declaration or payment
of dividends or similar distributions by any Subsidiary of such income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary and (b) the aggregate amount of such net income of
all Subsidiaries which is not permitted to be so distributed exceeds 12% of the
consolidated income of the Company before interest and income taxes for such
period (and before giving effect to this proviso).
DEBT of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, whether or not evidenced by bonds, debentures, notes
or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been recorded as liabilities on a balance sheet of
such Person, (c) all obligations of such Person to pay the
-8-
deferred purchase price of property or services (other than prepaid interest and
trade accounts payable in the ordinary course of business), (d) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person (it being understood that if
such Person has not assumed or otherwise become personally liable for any such
indebtedness, the amount of the Debt of such Person in connection therewith
shall be limited to the lesser of the face amount of such indebtedness or the
fair market value of all property of such Person securing such indebtedness),
(e) all obligations, contingent or otherwise, with respect to the face amount of
all letters of credit (whether or not drawn) and banker's acceptances issued for
the account of such Person (including, without limitation, the Letters of
Credit), (f) net liabilities of such Person under all Hedging Obligations, and
(g) all Suretyship Liabilities of such Person.
DEBT TO CAPITALIZATION RATIO means at any time the ratio of (a) Total Debt
to (b) the sum of (i) Total Debt plus (ii) Stockholders' Equity.
DOLLAR EQUIVALENT means, at any time, (a) as to any amount denominated in
U.S. Dollars, the amount thereof at such time, and (b) as to any amount
denominated in any Available Currency, the equivalent amount in U.S. Dollars as
determined by the Agent at such time on the basis of the Spot Rate for the
purchase of U.S. Dollars with such Available Currency on the most recent
Computation Date or such other date as is specified herein.
EBITA means, for any Computation Period, Consolidated Net Income for such
Computation Period before deducting Interest Expense, income taxes and
amortization.
EFFECTIVE DATE - see SECTION 11.1.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
EUROCURRENCY RESERVE PERCENTAGE means, with respect to any Eurodollar Loan
for any Interest Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the percentage in effect on each
day of such Interest Period, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor), for determining the aggregate maximum
reserve requirements applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other then applicable regulation of such Board of Governors
which prescribes
-9-
reserve requirements applicable to "Eurocurrency Liabilities" as presently
defined in Regulation D.
EURODOLLAR LOAN means any Loan which bears interest at a rate determined by
reference to the Eurodollar Rate (Reserve Adjusted).
EURODOLLAR OFFICE means, with respect to the Agent or any Bank, the office
or offices of such Person which shall be making or maintaining the Eurodollar
Loans of such Person hereunder or such other office or offices through which
such Person determines its Eurodollar Rate. A Eurodollar Office of any Person
may be, at the option of such Person, either a domestic or foreign office. A
Bank may have different Eurodollar Offices for Eurodollar Loans to the Company
and Eurodollar Loans to Xxxxx Australia.
EURODOLLAR RATE means, with respect to any Eurodollar Loan for any Interest
Period:
(a) in the case of a Eurodollar Loan to the Company, the rate per
annum at which U.S. Dollar deposits in immediately available funds are
offered by the Eurodollar Office of BofA two Business Days prior to the
beginning of such Interest Period to prime banks in the interbank
eurodollar market as at or about 10:00 a.m., Chicago time, for delivery on
the first day of such Interest Period, for the number of days comprised
therein and in an amount equal or comparable to the amount of the
Eurodollar Loan of BofA for such Interest Period; and
(b) in the case of a Eurodollar Loan to Xxxxx Australia, the rate
determined by the Agent to be the arithmetic mean (rounded up, if
necessary, to an integral multiple of 1/16th of 1%) of the rates displayed
on the Xxxxxx'x Screen LIBOR page at or about 11:00 a.m., London time, on
the date which is two Business Days prior to the beginning of such Interest
Period for a term equivalent to such Interest Period for the value date
which is the first day of such Interest Period; PROVIDED that if (i) for
any reason there is no rate so displayed for a term equivalent to such
Interest Period or (ii) the basis on which such rate is displayed is
changed after the date of this Agreement so that in the opinion of the
Agent it ceases to reflect the cost to the Australian Banks of funding
Eurodollar Loans to Xxxxx Australia in the same manner and to the same
extent as of the date of this Agreement, THEN such Eurodollar Rate shall be
the rate determined by the Agent to be the rate quoted by BofA to prime
banks in the London interbank market at or about 11:00 a.m., London time,
two Business Days prior to the beginning of such Interest Period for the
making of
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deposits in U.S. Dollars with BofA on the first day of such Interest Period in
the amount of the relevant Eurodollar Loan of BofA (or the Affiliate of BofA
designated by BofA as an Australian Bank hereunder) for a term equivalent to
such Interest Period.
EURODOLLAR RATE (RESERVE ADJUSTED) means, with respect to any Eurodollar
Loan for any Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16 of 1%) determined pursuant to the following formula:
Eurodollar Rate = EURODOLLAR RATE
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
EVENT OF DEFAULT means any of the events described in SECTION 12.1.
EXISTING AGREEMENT - see the RECITALS.
EXISTING LETTERS OF CREDIT means the letters of credit listed on SCHEDULE
1.1(C).
FACILITY FEE RATE means the applicable rate set forth under the heading
"Facility Fee Rate" in SCHEDULE 1.1(B).
FEDERAL FUNDS RATE means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by
each of three leading brokers of Federal funds transactions in New York City
selected by the Agent.
FINANCIAL LETTER OF CREDIT means any Letter of Credit which any Bank is
required under any applicable law, rule or regulation (including under 12 CFR
Part 3, Appendix A, SECTION 3, clause (b)) to classify as a financial letter of
credit with respect to its issuance thereof or participation therein pursuant to
this Agreement.
FISCAL QUARTER means a fiscal quarter of a Fiscal Year.
FISCAL YEAR means the fiscal year of the Company and its Subsidiaries,
which shall be a 12-month period ending on January 31 of each year. References
to a Fiscal Year with a number
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corresponding to any calendar year (e.g., "Fiscal Year 1997") refer to the
Fiscal Year ending on January 31 of such calendar year.
FIXED RATE LOAN means a Eurodollar Loan or a Xxxx Rate Loan.
FLOATING RATE LOAN means any U.S. Loan which bears interest at or by
reference to the Alternate Reference Rate.
FOREIGN SUBSIDIARY means any Subsidiary (i) organized under the laws of a
jurisdiction other than the United States or a state thereof or Australia or a
state or territory thereof and (ii) which conducts substantially all of its
business and operations in a jurisdiction other than the United States and
Australia; PROVIDED that G&K shall be deemed to be a Foreign Subsidiary prior to
the completion of the G&K Stock Repurchase.
FUNDING OFFICE means a Eurodollar Office or a Xxxx Rate Office.
G&K means Glindemann & Kitching Pty Limited ACN 003 204 448, a company
organized under the laws of New South Wales.
G&K STOCK REPURCHASE means the repurchase by G&K of all of its issued and
outstanding capital stock (other than such capital stock owned by Xxxxxxx)
pursuant to the Share Buy-Back Agreement dated December 12, 1996 among G&K and
the other Persons party thereto.
GAAP means generally accepted accounting principles set forth from time to
time in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
GOVERNMENTAL AUTHORITY means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
GROUP of Loans means Loans of the same type made by the Banks or the
Australian Banks, as the case may be, to the same Borrower which have the same
Interest Period.
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GUARANTOR means (a) as of the Effective Date, Xxxxx GeoSciences, Inc.,
Xxxxxxxxxxx Xxxxxx Corporation and Xxxxxx Bros. Drilling Company and (b)
thereafter, the entities referred to in CLAUSE (A) which have not been released
from the Guaranty in accordance with the terms thereof and each other Person
which from time to time executes and delivers a counterpart of the Guaranty.
GUARANTY - see SECTION 11.1.4.
HAZARDOUS MATERIAL means any hazardous, toxic or dangerous substance or
material defined as such in (or for purposes of) the Comprehensive Environmental
Response, Compensation and Liability Act, any so-called "Superfund" or
"Superlien" law or any other Federal, state or local statute, law, ordinance,
code, regulation or order, or any other requirement of any Governmental
Authority regulating, relating to, or imposing liability for, or standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or
material as now or any time hereafter in effect and applicable to any real
property owned by or leased to the Company or any Subsidiary or on which the
Company or any Subsidiary carries on any of its operations (provided that no
such state or local statute, law, ordinance, code, regulation, order or other
requirement shall be deemed to have extraterritorial application).
HEDGING OBLIGATIONS means, with respect to any Person, all liabilities of
such Person under interest rate, currency and commodity swap agreements,
interest rate cap agreements, interest rate collar agreements, foreign exchange
agreements, forward rate agreements and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates, currency
exchange rates or commodity prices.
INDEMNIFIED LIABILITIES - see SECTION 15.13.
INDEMNIFIED PERSON - see SECTION 15.13.
INTEREST COVERAGE RATIO means the ratio of (a) Adjusted EBITA for any
Computation Period to (b) Interest Expense for such Computation Period.
INTEREST EXPENSE means for any period the consolidated interest expense
(net of interest income) (including, without limitation, all imputed interest on
Capital Leases) of the Company and its Subsidiaries for such period; IT BEING
UNDERSTOOD that (x) with respect to the Computation Period ending October 31,
1997, Interest Expense shall be deemed to be an amount equal to (i) Interest
Expense for the Fiscal Quarter ended October 31, 1997 multiplied by (ii) 4, (y)
with respect to the Computation Period ending January 31, 1998, Interest Expense
shall be deemed
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to be an amount equal to (i) Interest Expense for the period of the two Fiscal
Quarters ended January 31, 1998 multiplied by (ii) 2 and (z) with respect to the
Computation Period ending April 30, 1998, Interest Expense shall be deemed to be
an amount equal to (i) Interest Expense for the period of the three Fiscal
Quarters ended April 30, 1998 multiplied by (ii) 4/3.
INTEREST PERIOD means, as to any Fixed Rate Loan, the period commencing on
the date such Loan is borrowed or (in the case of a Eurodollar Loan to the
Company) converted from a Floating Rate Loan, or on the expiration of the
immediately preceding Interest for such Loan, as applicable, and ending on the
date one, two, three or six months thereafter (or, in the case of Eurodollar
Loans to the Company, 14 days thereafter) as selected by the applicable Borrower
in its related notice of borrowing, conversion or continuation, as the case may
be; PROVIDED that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the
following Business Day, unless the result of such extension would be
to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period, other than a 14-day Interest Period,
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
(iii) no Interest Period for any Loan shall extend beyond the
scheduled Termination Date; and
(iv) neither Borrower may select any Interest Period which would
extend beyond any Commitment Reduction Date if, after giving effect to
such selection, the aggregate Dollar Equivalent principal amount of
all Fixed Rate Loans having Interest Periods ending after such date
plus the aggregate Stated Amount of all Letters of Credit scheduled to
remain outstanding after such date (assuming no drawings are made
thereunder) would exceed the Aggregate Commitment Amount scheduled to
be in effect after giving effect to the reduction on such date.
INVESTMENT means, with respect to any Person:
-14-
(a) any loan or advance made by such Person to any other Person
(excluding (i) commission, travel and similar advances to officers and
employees made in the ordinary course of business and (ii) advances to, and
deposits with, contractors and suppliers in the ordinary course of
business, but solely to the extent consistent with the past practice of the
Company and its Subsidiaries); and
(b) any ownership or similar interest held by such Person in any
other Person.
The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon (and without
adjustment by reason of the financial condition of such other Person) and shall,
if made by the transfer or exchange of property other than cash, be deemed to
have been made in an original principal or capital amount equal to the fair
market value of such property.
ISSUER means BofA in its capacity as issuer of one or more Letters of
Credit hereunder, together with any replacement letter of credit issuer under
SECTION 13.9.
KKR means Kohlberg Kravis Xxxxxxx & Co. L.P., a Delaware limited
partnership.
XXXXX AUSTRALIA - see the PREAMBLE.
LC FEE RATE means the applicable rate set forth under the heading "LC Fee
Rate" in SCHEDULE 1.1(B).
LETTER OF CREDIT - see SECTION 2.1.3. References to Letters of Credit
include the Existing Letter of Credit.
LETTER OF CREDIT APPLICATION means a letter of credit application in the
form then used by the Issuer for the type of letter of credit requested (with
appropriate adjustments to indicate that any letter of credit issued thereunder
is to be issued pursuant to, and subject to the terms and conditions of, this
Agreement).
LEVERAGE RATIO means the ratio of Total Debt as of the last day of any
Fiscal Quarter to Adjusted EBITDA for the Computation Period ending on such day.
LIEN means, when used with respect to any Person, any interest granted by
such Person in any real or personal property, asset or other right owned or
being purchased or acquired by such Person which secures payment or performance
of any obligation and shall include any mortgage, lien, encumbrance, charge,
assignment by way of security or other security interest of any kind,
-15-
whether arising by contract, as a matter of law, by judicial process or
otherwise.
LOAN DOCUMENTS means this Agreement, the Notes, the Letter of Credit
Applications, the Guaranty and any Pledge Agreement executed pursuant to SECTION
10.15.
LOANS means U.S. Loans and Australian Loans.
MARGIN means, at any time, the applicable rate per annum set forth under
the heading "Margin" in SCHEDULE 1.1(B).
MARGIN STOCK means any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
MATERIAL ADVERSE EFFECT means, relative to any event or occurrence of
whatever nature (including, without limitation, any adverse determination in any
litigation, arbitration or governmental proceeding), a material adverse effect
on (a) the financial condition, operations, business, revenues, assets or
properties of the Company and its Subsidiaries taken as a whole or (b) the
ability of either Borrower to timely and fully perform any of its payment or
other material obligations under this Agreement or any other Loan Document to
which it is a party.
MATERIAL SUBSIDIARY means any Subsidiary other than (a) a Foreign
Subsidiary and (b) a Subsidiary which (i) owns less than 2% of the consolidated
assets of the Company and its Subsidiaries and (ii) had less than 2% of the
consolidated revenues of the Company and its Subsidiaries during the most
recently ended Fiscal Quarter.
MINIMUM EQUITY AMOUNT means an amount equal to the greater of (i)
U.S.$15,000,000 or (ii) the minimum amount of Net Cash Proceeds received by the
Company from the issue or sale of its capital stock which is required to make
the Debt to Capitalization Ratio, immediately after such issue or sale of
capital stock and the application of the proceeds thereof, less than or equal to
the Original Leverage Ratio.
MINORITY INTERESTS means any shares of stock of any class of a Restricted
Subsidiary (other than directors' qualifying shares as required by law) that are
not owned by the Company and/or one or more of its Restricted Subsidiaries.
Minority Interests shall be valued by valuing Minority Interests constituting
preferred stock at the voluntary or involuntary liquidating value of such
preferred stock, whichever is greater, and by valuing Minority Interests
constituting common stock at the book value of capital and surplus applicable
thereto adjusted, if necessary, to reflect any changes from the book value of
such common stock required by
-16-
the foregoing method of valuing Minority Interests in preferred stock.
NET CASH PROCEEDS means:
(a) with respect to the sale, transfer, or other disposition by the
Company or any Subsidiary of any asset (including any stock of any
Subsidiary), the aggregate cash proceeds (including cash proceeds received
by way of deferred payment of principal pursuant to a note, installment
receivable or otherwise, but only as and when received) received by the
Company or any Subsidiary pursuant to such sale, transfer or other
disposition, net of (i) the direct costs relating to such sale, transfer or
other disposition (including sales commissions and legal, accounting and
investment banking fees), (ii) taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any
tax sharing arrangements), (iii) amounts required to be applied to the
repayment of any Debt secured by a Lien on the asset subject to such sale,
transfer or other disposition (other than the Loans), (iv) in the case of
the sale of the stock of any Subsidiary, any Debt of such Subsidiary which
is required to be repaid as a result of or in connection with such sale
(other than the Loans) and (v) any reserve for adjustment in respect of the
sale price of such asset (until such amount is available to the Company or
the applicable Subsidiary); and
(b) with respect to any issuance of equity securities (including
stock, warrants, options or any other equity security) or Other Debt, the
aggregate cash proceeds received by the Company or any Subsidiary pursuant
to such issuance, net of the direct costs relating to such issuance
(including sales and underwriter's commissions and legal, accounting and
investment banking fees).
NON-AUSTRALIAN BANK means any Bank which is not (and has not designated an
affiliate as) an Australian Bank.
NON-FINANCIAL LETTER OF CREDIT means any Letter of Credit other than a
Financial Letter of Credit.
NON-REPORTABLE ENVIRONMENTAL EVENT means any event described in SECTION
10.18.1(B) with respect to which the amount for which the Company or any
Material Subsidiary may reasonably be expected to be obligated is less than a
Dollar Equivalent amount of U.S.$250,000 (excluding any amount which is covered
by insurance and with respect to which the insurer has accepted a tender of
defense and indemnification without reservation of rights).
-17-
NON-U.S. PERSON means a Person that is not (a) a citizen or resident of the
United States, (b) a corporation or partnership created or organized under the
laws of the United States or any state thereof or (c) an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
NOTE - see SECTION 3.1.
ORIGINAL LEVERAGE RATIO means 55% for any date of determination on or
before January 31, 1998 and 50% for any date of determination thereafter.
OTHER DEBT means any Debt not permitted under SECTION 10.7 without a waiver
thereof.
OVERNIGHT RATE means, for any day, the rate of interest per annum at which
overnight deposits in the applicable currency, in an amount approximately equal
to the amount with respect to which such rate is being determined, would be
offered for such day by the relevant branch of BofA to major banks in the
applicable offshore interbank market. The Overnight Rate for any day which is
not a Business Day shall be the Overnight Rate for the preceding Business Day.
PARTICIPANT - see SECTION 15.9.2.
PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
PENSION PLAN means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which the Company or any
corporation, trade or business that is, along with the Company, a member of a
controlled group of corporations or a controlled group of trades or businesses,
as described in sections 414(b) and 414(c), respectively, of the Code or section
4001 of ERISA, may have any liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
PERCENTAGE means, for any Bank, the percentage equivalent at such time of:
(a) prior to the termination of the Commitments, (i) such Bank's
Commitment DIVIDED BY (ii) the Aggregate Commitment Amount; and
-18-
(b) after the termination of the Commitments, (i) the aggregate
principal amount of such Bank's U.S. Loans PLUS the direct (after
subtracting all amounts which have been, or upon receipt by the Agent of an
Australian Participation Funding Notice would be, participated) or
participation interest of such Bank in the aggregate Dollar Equivalent
principal amount of Australian Loans PLUS such Bank's participation
interest in the Stated Amount of all Letters of Credit DIVIDED BY (ii) the
aggregate Dollar Equivalent principal amount of all Loans PLUS the Stated
Amount of all Letters of Credit.
The initial Percentage for each Bank is set forth opposite such Bank's name
on SCHEDULE 1.1(A).
PERSON means any natural person, corporation, company, partnership, trust,
association, governmental authority or unit, or any other entity, whether acting
in an individual, fiduciary or other capacity.
PROHIBITED ENVIRONMENTAL EVENT means any event described in SECTION 9.15 or
SECTION 10.18.2 with respect to which the amount for which the Company or any
Material Subsidiary may reasonably be expected to be obligated, when aggregated
with all unpaid amounts for which the Company and its Material Subsidiaries may
reasonably be expected to be obligated with respect to other existing events
described in SECTION 9.15 or SECTION 10.18.2, is equal to or greater than a
Dollar Equivalent amount of U.S.$1,000,000 (excluding any amount which is
covered by insurance and with respect to which the insurer has accepted a tender
of defense and indemnification without reservation of rights).
QUALIFIED PUBLIC OFFERING means a public offering of the capital stock of
the Company in which the Company receives Net Cash Proceeds of not less than
U.S.$15,000,000.
REQUIRED BANKS means Banks having an aggregate Percentage of 66-2/3% or
more.
RESTRICTED EQUITY AMOUNT means an amount equal to the lesser of (i) the Net
Cash Proceeds received by the Company from the issue or sale of its capital
stock from and after January 31, 1996 or (ii) the Minimum Equity Amount.
RESTRICTED INVESTMENTS means all Investments, other than the following:
(a) Investments by the Company and its Restricted Subsidiaries in and
to Restricted Subsidiaries, including
-19-
any Investment in a corporation which, after giving effect to such
Investment, will become a Restricted Subsidiary;
(b) Investments in commercial paper maturing in 270 days or less from
the date of acquisition which, at the time of acquisition by the Company or
any Restricted Subsidiary, is accorded a rating no lower than one of the
top two rating classifications by any nationally recognized rating agency;
(c) Investments in obligations of or guaranteed by the United States
of America or any agency or instrumentality of the United States of
America, the payment or guarantee of which constitutes a full faith and
credit obligation of the United States of America, in either case, maturing
within three years from the date of acquisition thereof;
(d) Investments in certificates of deposit or bankers acceptances
maturing within one year from the date of acquisition thereof, issued by a
bank or trust company organized under the laws of the United States or any
state thereof, whose long-term certificates of deposit are, at the time of
acquisition thereof by the Company or a Subsidiary, rated one of the top
two rating classifications by any nationally recognized rating agency;
(e) Investments in obligations of municipalities maturing within
three years from the date of acquisition which, at the time of acquisition
by the Company or any Subsidiary, are accorded a rating of no lower than
one of the top two rating classifications by any nationally recognized
rating agency;
(f) receivables arising from the sale of goods and services in the
ordinary course of business of the Company and its Restricted Subsidiaries;
(g) Investments in money market investment programs which are
classified as current assets of the Company or any Restricted Subsidiary in
accordance with generally accepted accounting principles; and
(h) Investments of the Company and its Subsidiaries existing as of
February 29, 1996 and described on SCHEDULE 1.1(D) hereto.
In valuing any Restricted Investment for the purpose of applying the
limitations set forth in this Agreement, such Investments shall be valued at
book value determined in accordance with GAAP.
-20-
RESTRICTED SUBSIDIARY means CBC and any other Subsidiary (i) of which at
least a majority (by number of votes) of the voting stock is beneficially owned,
directly or indirectly, by the Company and (ii) which the Company has designated
as a Restricted Subsidiary on SCHEDULE 9.8 hereto or by notice in writing given
to the Agent and the Banks.
SEC means the Securities and Exchange Commission.
SENIOR NOTES means the U.S.$25,000,000 6.75% Senior Notes issued pursuant
to the Note Agreement dated March 15, 1996 between the Company and Massachusetts
Mutual Life Insurance Company.
SPOT RATE for a currency means the rate quoted by BofA as the spot rate for
the purchase by BofA of such currency with another currency in accordance with
its customary procedures at approximately 10:00 a.m. (Chicago time) on the date
two Business Days prior to the date as of which the foreign exchange computation
is made.
XXXXX XXXXXXX ACQUISITION means the acquisition by the Company of Xxxxx
Xxxxxxx, Inc. pursuant to the Agreement of Sale dated July 3, 1997 among the
Company and the shareholders of Xxxxx Xxxxxxx, Inc.
XXXXXXX means Xxxxxxx Mining Services Limited ACN 009 117 533, a company
incorporated in Western Australia.
XXXXXXX ACQUISITION means the Acquisition of not less than 90% of the
shares of Xxxxxxx pursuant to the Part A Statement of Xxxxx Australia registered
May 2, 1997 and the Offer Document of Xxxxx Australia dated May 20, 1997.
STATED AMOUNT means, with respect to any Letter of Credit at any date of
determination, the sum of the maximum Dollar Equivalent amount available
thereunder at any time during the then ensuing term of such Letter of Credit
under any and all circumstances plus the aggregate Dollar Equivalent amount of
all unreimbursed payments and disbursements under such Letter of Credit.
STOCKHOLDERS' EQUITY means, as of the date of any determination thereof,
stockholders' equity of the Company and its Restricted Subsidiaries as shown on
the consolidated balance sheet of the Company as of such date of determination,
determined in accordance with GAAP.
SUBSIDIARY means, with respect to any Person, a corporation (a) of which
such Person and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have
-21-
more than 50% of the ordinary voting power for the election of directors or (b)
organized under the laws of Australia or a state or territory thereof and which
is otherwise a subsidiary of such Person within the meaning of Section 9 of the
Corporations Law of Australia. Unless the context otherwise requires, each
reference to Subsidiaries herein shall be a reference to Subsidiaries of the
Company. For purposes of the representations and warranties set forth in
SECTIONS 9.6 through 9.11, 9.13, 9.15 and 9.16, Xxxxxxx and its Subsidiaries
shall be deemed to be Subsidiaries of the Company immediately prior to the
Effective Date (notwithstanding the fact that they will not become Subsidiaries
of the Company until the occurrence of the Effective Date).
SURETYSHIP LIABILITY means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to or otherwise to invest in a
debtor, or otherwise to assure a creditor against loss) any indebtedness,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person. The amount of any
Person's obligation under any Suretyship Liability shall (subject to any
limitation set forth therein) be deemed to be the principal amount of the debt,
obligation or other liability guaranteed thereby.
TAXES means any present or future income, excise or stamp taxes and any
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, excluding franchise taxes and taxes
imposed on or measured by the gross or net income or receipts of the Agent or
any Bank.
TERMINATION DATE means July 31, 2002 or such other date on which the
Commitments shall terminate pursuant to SECTION 6 or 12.
TOTAL DEBT means all Debt of the Company and its Subsidiaries determined on
a consolidated basis, excluding (i) Debt in respect of undrawn standby letters
of credit, (ii) Debt in respect of Hedging Obligations and (iii) Debt arising
out of Suretyship Liabilities in respect of (x) Debt of others described in
CLAUSES (I) and (II) above and (y) indemnification obligations to the extent not
included in the consolidated balance sheet of the Company.
TYPE OF LOAN OR BORROWING refers to the interest rate basis for a loan or
borrowing. The "types" of U.S. Loans or borrowings are Floating Rate Loans or
borrowings and Eurodollar Loans or
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borrowings. The "types" of Australian Loans or borrowings are Xxxx Rate Loans
or borrowings and Eurodollar Loans or borrowings.
UNMATURED EVENT OF DEFAULT means any event which if it continues uncured
will, with lapse of time or notice or lapse of time and notice, constitute an
Event of Default.
U.S. DOLLARS and U.S.$ mean lawful money of the United States of America.
U.S. LOAN - see SECTION 2.1.1.
WELFARE PLAN means a "welfare plan", as such term is defined in section
3(1) of ERISA.
WHOLLY-OWNED SUBSIDIARY means a Subsidiary of which the Company and/or its
Subsidiaries own, directly or indirectly, all of the outstanding shares of
capital stock (other than directors' qualifying shares).
1.2 OTHER INTERPRETIVE PROVISIONS. (a) The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.
(b) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding",
and the word "through" means "to and including."
(c) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulations are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(d) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this
Agreement.
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(e) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters.
All such limitations, tests and measurements are cumulative and shall each
be performed in accordance with their terms.
(f) A reference to capital stock also includes a reference to issued
share capital.
SECTION 2 COMMITMENTS OF THE BANKS; U.S. AND AUSTRALIAN
BORROWING PROCEDURES; LETTER OF CREDIT PROCEDURES.
2.1 COMMITMENTS. On and subject to the terms and conditions of this
Agreement, each of the Banks, severally and for itself alone, agrees to make
loans to, and to issue or participate in letters of credit for the account of,
the Borrowers as follows:
2.1.1 U.S. LOAN COMMITMENT. Each Bank agrees to make loans to the Company
on a revolving basis (collectively "U.S. Loans" and individually each a "U.S.
Loan") from time to time before the Termination Date in such Bank's Percentage
of such aggregate amounts as the Company may from time to time request from all
Banks.
2.1.2 AUSTRALIAN LOAN COMMITMENT. (a) Each Australian Bank agrees to make
loans to Xxxxx Australia on a revolving basis (collectively "Australian Loans"
and individually each an "Australian Loan") from time to time before the
Termination Date in such Australian Bank's Australian Percentage of such
aggregate amounts as Xxxxx Australia may from time to time request from all
Australian Banks and (b) each Non-Australian Bank agrees that it will purchase a
participation in each such Loan if required pursuant to SECTION 2.3.4.
2.1.3 LETTER OF CREDIT COMMITMENT. (a) The Issuer will issue standby
letters of credit, in each case containing such terms and conditions as are
permitted by this Agreement and are reasonably satisfactory to the Issuer
(collectively the "Letters of Credit" and individually each a "Letter of
Credit"), at the request of and for the account of the Company (or jointly for
the account of the Company and any Subsidiary) from time to time before the
Termination Date and (b) as more fully set forth in SECTION 2.4, each Bank
agrees to purchase a participation in each such Letter of Credit.
2.1.4 COMMITMENT LIMITS. Notwithstanding any other provision of this
Agreement (a) the Aggregate Outstandings shall not at any time exceed the
Aggregate Commitment; (b) the aggregate Dollar Equivalent principal amount of
all Australian Loans shall not at any time exceed the Aggregate Australian
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Commitment; and (c) the Stated Amount of all Letters of Credit shall not at any
time exceed the lesser of the Aggregate Commitment and a Dollar Equivalent
amount of U.S.$20,000,000.
2.1.5 VALUATION OF AUSTRALIAN LOANS AND CERTAIN LETTERS OF CREDIT. The
Agent will determine the Dollar Equivalent amount of each Australian Loan and
each Letter of Credit denominated in a currency other than U.S. Dollars on each
Computation Date, and such determination shall be conclusive absent demonstrable
error.
2.2 U.S. LOAN PROCEDURES.
2.2.1 VARIOUS TYPES OF U.S. LOANS. Each U.S. Loan shall be in U.S.
Dollars and shall be either a Floating Rate Loan or a Eurodollar Loan, as the
Company shall specify in the related notice of borrowing, conversion or
continuation pursuant to SECTION 2.2.2 or 2.2.3. Floating Rate Loans and
Eurodollar Loans may be outstanding at the same time, PROVIDED that (i) not more
than five different Groups of Eurodollar Loans to the Company shall be
outstanding at any one time and (ii) the aggregate principal amount of each
Group of Eurodollar Loans to the Company shall at all times (including after
giving effect to any conversion or continuation) be at least U.S.$500,000 and an
integral multiple of U.S.$100,000.
2.2.2 BORROWING PROCEDURES FOR U.S. LOANS. The Company shall give written
notice to the Agent of each proposed borrowing of U.S. Loans not later than (a)
in the case of a Floating Rate borrowing, 11:00 a.m., Chicago time, on the
proposed date of such borrowing, and (b) in the case of a Eurodollar borrowing,
11:00 a.m., Chicago time, at least three Business Days prior to the proposed
date of such borrowing. Each such notice shall be in the form of EXHIBIT B,
shall be effective upon receipt by the Agent and shall specify the date, amount
and type of borrowing and, in the case of a Eurodollar borrowing, the initial
Interest Period therefor. Promptly upon receipt of such notice, the Agent shall
advise each Bank thereof. Not later than 1:00 p.m., Chicago time, on the date
of a proposed borrowing of U.S. Loans, each Bank shall provide the Agent at the
Agent's Payment Office with immediately available funds covering such Bank's
Percentage of such borrowing and, subject to the satisfaction of the conditions
precedent set forth in SECTION 11 with respect to such borrowing, the Agent
shall pay over the requested amount to the Company on the requested borrowing
date and (unless the Company shall otherwise notify the Agent and BofA in
writing) deposit such amount in the Company's demand deposit account no.
49-13582 maintained with BofA (or such other account maintained with BofA as the
Company shall designate in writing to BofA and the Agent). Each borrowing of
U.S. Loans shall be on a Business Day and shall be in an aggregate amount of at
least U.S.$500,000 and an integral multiple of U.S.$100,000.
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2.2.3 CONVERSION AND CONTINUATION PROCEDURES FOR U.S. LOANS. (a) Subject
to SECTION 2.2.1 the Company may, upon irrevocable written notice to the Agent
in accordance with CLAUSE (B) below:
(i) elect, as of any Business Day, to convert any U.S. Loans (or
any part thereof in an aggregate amount not less than U.S.$500,000 or
a higher integral multiple of U.S.$100,000) into U.S. Loans of the
other type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Eurodollar Loans to the Company having
Interest Periods expiring on such day (or any part thereof in an
amount not less than U.S.$500,000 or a higher integral multiple of
U.S.$100,000) for a new Interest Period.
(b) The Company shall deliver a notice of conversion or continuation
in the form of EXHIBIT C to be received by the Agent not later than 11:00
a.m., Chicago time, at least (i) three Business Days in advance of the date
of conversion or continuation, if U.S. Loans are to be converted into or
continued as Eurodollar Loans; and (ii) on the Business Day of such
conversion, if U.S. Loans are to be converted into Floating Rate Loans,
specifying in each case:
(1) the proposed date of conversion or continuation;
(2) the aggregate amount of U.S. Loans to be converted or
continued;
(3) the type of Loans resulting from the proposed conversion or
continuation; and
(4) in the case of a continuation of, or conversion into,
Eurodollar Loans to the Company, the duration of the requested
Interest Period therefor.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Loans to the Company, the Company has failed to select timely a
new Interest Period to be applicable to such Eurodollar Loans, the Company
shall be deemed to have elected to convert such Eurodollar Loans into
Floating Rate Loans effective on the last day of such Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
notice of conversion or continuation pursuant
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to this SECTION 2.2.3 or, if no timely notice is provided by the Company,
of the details of any automatic conversion.
(e) Unless the Required Banks otherwise consent, during the existence
of an Event of Default or Unmatured Event of Default, the Company may not
elect to have a U.S. Loan converted into or continued as a Eurodollar Loan.
2.3 AUSTRALIAN LOAN PROCEDURES
2.3.1 VARIOUS TYPES OF AUSTRALIAN LOANS. Each Australian Loan shall be
either a Xxxx Rate Loan in Australian Dollars or a Eurodollar Loan in U.S.
Dollars, as Xxxxx Australia shall specify in the related notice of borrowing
pursuant to SECTION 2.3.2. Xxxx Rate Loan and Eurodollar Loans may be
outstanding at the same time, PROVIDED that (i) not more than two different
Groups of Eurodollar Loans to Xxxxx Australia shall be outstanding at any one
time, (ii) not more than two different Groups of Xxxx Rate Loans shall be
outstanding at any one time, (iii) the aggregate principal amount of each Group
of Eurodollar Loans to Xxxxx Australia shall at all times (including after
giving effect to any partial continuation) be at least U.S.$500,000 and an
integral multiple of U.S.$100,000 and (iv) the aggregate principal amount of
each Group of Xxxx Rate Loans shall at all times (including after giving effect
to any partial continuation) be at least a Dollar Equivalent amount of
U.S.$500,000 and an integral multiple of A$500,000.
2.3.2 BORROWING PROCEDURES FOR AUSTRALIAN LOANS. Xxxxx Australia shall
give written notice to the Agent of each proposed borrowing of Australian Loans
not later than noon, Chicago time, at least four Business Days prior to the
proposed date of such borrowing. Each such notice shall be in the form of
EXHIBIT D, shall be effective upon receipt by the Agent, and shall specify the
date, amount and type of borrowing and the initial Interest Period therefor.
Promptly upon receipt of such notice the Agent shall advise each Australian Bank
thereof. Not later than 11:00 a.m., Sydney, Australia time, on the date of a
proposed borrowing of Australian Loans, each Australian Bank shall provide the
Agent at the Agent's Payment Office with immediately available funds covering
such Australian Bank's Australian Percentage of such borrowing and, subject to
the satisfaction of the conditions precedent set forth in SECTION 11 with
respect to such borrowing, the Agent shall pay over the requested amount to
Xxxxx Australia on the requested borrowing date. Each borrowing of Australian
Loans shall be on a Business Day and shall be in an aggregate Dollar Equivalent
amount of at least U.S.$500,000 and an integral multiple of (x) in the case of
Eurodollar Loans, U.S.$100,000 and (y) in the case of Xxxx Rate Loans,
A$500,000.
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2.3.3 CONTINUATION PROCEDURES FOR AUSTRALIAN LOANS. (a) Subject to
SECTION 2.3.1, Xxxxx Australia may, upon irrevocable written notice to the Agent
in accordance with CLAUSE (B) below, elect, as of the last day of the applicable
Interest Period, to continue any Australian Loans having Interest Periods
expiring on such day (or any part thereof in a Dollar Equivalent amount not less
than U.S.$500,000 or a higher integral multiple of (x) in the case of Eurodollar
Loans, U.S.$100,000 or (y) in the case of Xxxx Rate Loans, A$100,000) for a new
Interest Period; PROVIDED that any Loans so continued shall remain the same type
of Australian Loans.
(b) Xxxxx Australia shall deliver a notice of continuation in the
form of EXHIBIT E to be received by the Agent not later than noon, Chicago
time, at least four Business Days in advance of the date of continuation,
specifying:
(A) the proposed date of continuation;
(B) the aggregate amount of Australian Loans to be
continued; and
(C) the duration of the requested Interest Period
therefor.
(c) If Xxxxx Australia fails to give timely notice of continuation of
any Australian Loans pursuant to CLAUSE (B) above and has not given a
notice of prepayment of such Loans pursuant to SECTION 6.2.4, then Xxxxx
Australia shall be deemed to have elected to continue such Australian Loans
as Loans of the same type for a new Interest Period of one month beginning
on the last day of the expiring Interest Period.
(d) The Agent will promptly notify each Australian Bank of its
receipt of a notice of continuation pursuant to this SECTION 2.3.3 or, if
no timely notice of continuation is provided by Xxxxx Australia, of the
details of any automatic continuation.
2.3.4 PARTICIPATIONS IN AUSTRALIAN LOANS. (a) Each Non-Australian Bank
agrees that it shall at all times have a participation in, and acknowledges that
it is irrevocably and unconditionally obligated, upon receipt of notice that the
Agent has received an Australian Participation Funding Notice, to fund (or to
cause an Affiliate to fund) its participation in, each outstanding Australian
Loan in an amount equal to its Percentage of the amount of such Australian Loan.
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(b) The Agent shall promptly notify each Non-Australian Bank of its
receipt of an Australian Participation Funding Notice. Promptly upon
receipt of such Notice, each Non-Australian Bank shall (or shall cause an
Affiliate to) make available to the Agent for the account of the Australian
Banks an amount in Australian Dollars and in immediately available funds
equal to its Percentage of all outstanding Australian Loans. If any
Non-Australian Bank so notified fails to make available to the Agent for
the account of the Australian Banks the full amount of such Non-Australian
Bank's participations in all Australian Loans by 12:00 noon (Chicago time)
on the Business Day following its receipt of such notice from the Agent (or
two Business Days following receipt of such notice if such notice is
received after 12:00 noon (Chicago time) on any Business Day), then
interest shall accrue on such Non-Australian Bank's obligation to fund such
participations, from the date such obligation became due to the date such
Non-Australian Bank pays such obligations in full, at a rate per annum
equal to the Overnight Rate in effect from time to time during such period.
The Agent shall promptly distribute to each Australian Bank an amount equal
to its applicable share of the amount received from any Non-Australian Bank
to fund its participation in the Australian Loans of such Australian Bank
together with its applicable share of any interest received from any
Non-Australian Bank pursuant to the previous sentence, in the same funds as
those received by the Agent.
(c) From and after the date on which the Agent has received an
Australian Participation Funding Notice, all funds received by the Agent in
payment of the Australian Loans and interest thereon shall be distributed
by the Agent, in the same funds as those received by the Agent, to all
Banks in accordance with their respective Percentages (i.e., giving effect
to the funding of participations pursuant to this SECTION 2.3.4), except
that the Percentage of such funds of any Non-Australian Bank that has not
funded its participations as provided herein shall be distributed ratably
to the Australian Banks.
(d) If the Agent or any Australian Bank is required at any time to
return to either Borrower, or to a trustee, receiver, liquidator or
custodian, or any official in any bankruptcy, insolvency or similar
proceeding, any portion of any payment made by such Borrower to the Agent
or such Australian Bank in respect of any Australian Loan or interest
thereon, each Non-Australian Bank shall, on demand of the Agent, forthwith
return to the Agent for the account of the applicable Australian Bank its
Percentage of the amount so returned by the Agent or such Australian Bank
plus
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interest thereon from the date such demand is made to the date such amount
is returned by such Non-Australian Bank to the Agent, at a rate per annum
equal to the Overnight Rate from time to time in effect.
(e) The Required Banks, the Australian Banks and the Agent may agree
on any other reasonable method (such as making assignments of Australian
Loans) for sharing the risks of Australian Loans ratably among all Banks
according to their Percentages so long as such method does not materially
disadvantage the Borrowers or any Bank.
2.3.5 AUSTRALIAN PARTICIPATION OBLIGATIONS UNCONDITIONAL.
(a) Each Non-Australian Bank's obligations to purchase participation
interests in Australian Loans pursuant to SECTION 2.3.4 shall be absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including (a) any set-off, counterclaim, recoupment, defense or other right
which such Non-Australian Bank may have against the Agent, any Australian
Bank, either Borrower or any other Person for any reason whatsoever; (b)
the occurrence or continuance of an Event of Default or an Unmatured Event
of Default; (c) any adverse change in the condition (financial or
otherwise) of either Borrower or any other Person; (d) any breach of this
Agreement by either Borrower or any other Bank; (e) any inability of Xxxxx
Australia to satisfy the conditions precedent to borrowing set forth in
this Agreement on the date upon which any participation interest in any
Australian Loan is to be purchased; or (f) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
(b) Notwithstanding the provisions of CLAUSE (A) above, no
Non-Australian Bank shall be required to purchase a participation interest
in an Australian Loan pursuant to SECTION 2.3.4 if, prior to the making by
the Australian Banks of such Australian Loan, the Australian Banks received
written notice from the Agent or any Bank specifying that such Agent or
such Bank believed in good faith that one or more of the conditions
precedent to the making of such Australian Loan were not satisfied and, in
fact, such conditions precedent were not satisfied at the time of the
making of such Australian Loan.
2.4 LETTER OF CREDIT PROCEDURES
2.4.1 ISSUANCE OF LETTERS OF CREDIT. The Company shall give written
notice to the Agent of the proposed issuance of each Letter of Credit on a
Business Day which is at least one Business Day (or such lesser period as the
Issuer may agree) prior to the
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proposed date of issuance of such Letter of Credit. Each such notice shall be
accompanied by a Letter of Credit Application, duly executed by the Company (or
jointly by the Company and a Subsidiary) and in all respects reasonably
satisfactory to the Issuer, together with such other documentation as the Issuer
may reasonably request in support thereof, it being understood that each Letter
of Credit Application shall specify, among other things, the date on which the
proposed Letter of Credit is to be issued, the expiration date of such Letter of
Credit (which shall not be later than 22 days prior to the Termination Date),
the face amount of such Letter of Credit, the currency in which such Letter of
Credit is to be denominated (which shall be an Available Currency) the name and
address of the beneficiary of such Letter of Credit and whether such Letter of
Credit is to be transferable in whole or in part. Subject to the satisfaction
of the conditions precedent set forth in SECTION 11 with respect to the issuance
of such Letter of Credit, the Issuer shall issue such Letter of Credit on the
requested issuance date. With respect to any Letter of Credit which contains
any "evergreen" or automatic renewal provision, each Bank shall be deemed to
have consented to any such extension or renewal unless any such Bank shall have
provided to the Agent, not less than 30 days prior to the last date on which the
Issuer can in accordance with the terms of the applicable Letter of Credit
decline to extend or renew such Letter of Credit, written notice that it
declines to consent to any such extension or renewal.
2.4.2 PARTICIPATIONS IN LETTERS OF CREDIT. Concurrently with the issuance
of each Letter of Credit (or, in the case of an Existing Letter of Credit,
concurrently with the effectiveness of this Agreement pursuant to SECTION 11.1),
the Issuer shall be deemed to have sold and transferred to each other Bank, and
each other Bank shall be deemed irrevocably and unconditionally to have
purchased and received from the Issuer without recourse or warranty, an
undivided interest and participation, to the extent of such other Bank's
Percentage, in such Letter of Credit and the Company's reimbursement obligations
with respect thereto. For the purposes of this Agreement, the unparticipated
portion of each Letter of Credit shall be deemed to be the Issuer's
"participation" therein. The Agent hereby agrees, upon request of any Bank, to
deliver to such Bank a list of all outstanding Letters of Credit, together with
such information related thereto as such Bank may reasonably request.
2.4.3 REIMBURSEMENT OBLIGATIONS. The Company hereby unconditionally and
irrevocably agrees to reimburse the Issuer for each payment or disbursement made
by the Issuer under any Letter of Credit honoring any demand for payment made by
the beneficiary thereunder, in each case on the date that such payment or
disbursement is made and in the currency of such payment or disbursement. Any
amount not reimbursed on the date
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of such payment or distribution shall bear interest from and including the date
of such payment or disbursement to but not including the date that the Issuer is
reimbursed by the Company therefor, payable on demand, at a rate per annum equal
to (x) in the case of any amount denominated in U.S. Dollars, the Alternate
Reference Rate from time to time in effect PLUS 2% and (y) in the case of any
amount denominated in any other currency, at the Overnight Rate from time to
time in effect plus the Margin plus 2%. The Issuer shall notify the Company
whenever any demand for payment is made under any Letter of Credit by the
beneficiary thereunder; PROVIDED, HOWEVER, that the failure of the Issuer to so
notify the Company shall not affect the rights of the Issuer or the Banks in any
manner whatsoever.
2.4.4 LIMITATION ON THE ISSUER'S OBLIGATIONS. In determining whether to
pay under any Letter of Credit, neither the Issuer nor the Agent shall have any
obligation to the Company or any Bank other than to confirm that any documents
required to be delivered under such Letter of Credit appear to have been
delivered and appear to comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by the Issuer under
or in connection with any Letter of Credit, if taken or omitted in the absence
of gross negligence and willful misconduct, shall not impose upon the Issuer any
liability to the Company or any Bank and shall not reduce or impair the
Company's reimbursement obligations set forth in SECTION 2.4.3 or the
obligations of the Banks pursuant to SECTION 2.4.5.
2.4.5 FUNDING BY BANKS TO THE ISSUER. If the Issuer makes any payment or
disbursement under any Letter of Credit and the Company has not reimbursed the
Issuer in full for such payment or disbursement by 11:00 a.m., Chicago time, on
the date of such payment or disbursement, or if any reimbursement received by
the Issuer from the Company is or must be returned or rescinded upon or during
any bankruptcy or reorganization of the Company or otherwise, each other Bank
shall be obligated to pay to the Issuer, in full or partial payment of the
purchase price of its participation in such Letter of Credit, its pro rata share
(according to its Percentage) of such payment or disbursement (but no such
payment shall diminish the obligations of the Company under SECTION 2.4.3), and
the Agent shall promptly notify each other Bank thereof. Each other Bank
irrevocably and unconditionally agrees, severally and for itself alone, to so
pay to the Agent in immediately available funds for the Issuer's account the
amount of such other Bank's Percentage of such payment or disbursement. If and
to the extent any Bank shall not have made such amount available to the Agent by
2:00 p.m., Chicago time, on the Business Day on which such Bank receives notice
from the Agent of such payment or disbursement (it being understood that any
such notice received after noon, Chicago
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time, on any Business Day shall be deemed to have been received on the next
following Business Day), such Bank agrees to pay interest on such amount to the
Agent for the Issuer's account forthwith on demand for each day from and
including the date such amount was to have been delivered to the Agent to but
excluding the date such amount is paid, at a rate per annum equal to (a) in the
case of any amount denominated in U.S. Dollars, (i) for the first three days
after demand, the Federal Funds Rate from time to time in effect and (ii)
thereafter, the Alternate Reference Rate from time to time in effect and (b) in
the case of any amount denominated in any other currency, the Overnight Rate
from time to time in effect plus, beginning on the fourth day after demand, 2%.
Any Bank's failure to make available to the Agent its Percentage of any such
payment or disbursement shall not relieve any other Bank of its obligation
hereunder to make available to the Agent such other Bank's Percentage of such
payment, but no Bank shall be responsible for the failure of any other Bank to
make available to the Agent such other Bank's Percentage of any such payment or
disbursement.
2.5 PRO RATA TREATMENT. Except as otherwise expressly provided herein,
all borrowings, conversions, continuations and repayments shall be effected so
that after giving effect thereto (a) each Bank will have a pro rata share
(according to the Percentage) of all types and Groups of U.S. Loans and (b) each
Australian Bank will have a pro rata share (according to its Australian
Percentage) of all types and Groups of Australian Loans.
2.6 WARRANTY. Each notice of borrowing and/or of conversion pursuant to
SECTION 2.2, each notice of borrowing pursuant to SECTION 2.3 and the delivery
of each Letter of Credit Application pursuant to SECTION 2.4 shall automatically
constitute a warranty by the Company or Xxxxx Australia, as the case may be, to
the Agent and each Bank to the effect that on the date of such requested
borrowing or conversion or the issuance of the requested Letter of Credit, as
the case may be, (a) the warranties of the Company contained in SECTION 9
(excluding SECTIONS 9.6 and 9.8 and except to the extent changes in facts or
conditions are expressly permitted or required hereunder) of this Agreement
shall be true and correct as of such requested date as though made on the date
thereof and (b) no Event of Default or Unmatured Event of Default shall have
then occurred and be continuing or will result therefrom.
2.7 CONDITIONS. Notwithstanding any other provision of this Agreement,
(a) no Bank shall be obligated to make any Loan, (b) no Bank shall be obligated
to convert into or permit the continuation at the end of the applicable Interest
Period of any Eurodollar Loan to the Company and (c) the Issuer shall not be
obligated to issue any Letter of Credit if, in any such case, an
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Event of Default or Unmatured Event of Default exists or would result therefrom.
2.8 COMMITMENTS SEVERAL. The failure of any Bank to make a requested Loan
on any date shall not relieve any other Bank of its obligation to make a Loan on
such date, but no Bank shall be responsible for the failure of any other Bank to
make any Loan to be made by such other Bank.
2.9 PAYMENTS BY THE BANKS TO THE AGENT. (a) Unless the Agent receives
notice from a Bank on or prior to the Effective Date or, with respect to any
Loan after the Effective Date, by 12:00 noon, Chicago time, on the date of such
Loan in the case of a Floating Rate Loan, at least one Business Day prior to the
date of such Loan in the case of a Eurodollar Loan to the Company or at least
two Business Days prior to the date of such Loan in the case of an Australian
Loan, that such Bank will not make available as and when required hereunder to
the Agent for the account of the applicable Borrower the amount of that Bank's
pro rata share (according to its Percentage or Australian Percentage) of any
borrowing, the Agent may assume that each applicable Bank has made such amount
available to the Agent in immediately available funds on the date of such
borrowing and the Agent may (but shall not be so required), in reliance upon
such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent any Bank shall not have made its
full amount available to the Agent in immediately available funds and the Agent
in such circumstances has made available to the applicable Borrower such amount,
such Bank shall on the Business Day following such date make such amount
available to the Agent, together with interest at the Federal Funds Rate (in the
case of Floating Rate Loans and Eurodollar Loans) or the Overnight Rate (in the
case of Xxxx Rate Loans) for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this SECTION 2.9 shall
be conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such Bank's Loan on the date of borrowing
for all purposes of this Agreement. If such amount is not made available to the
Agent on the Business Day following such date, the Agent will notify the
applicable Borrower of such failure to fund and, upon demand by the Agent, such
Borrower shall pay such amount to the Agent for the Agent's account, together
with interest thereon for each day elapsed since the date of such borrowing, at
a rate per annum equal to the interest rate applicable at the time to the Loans
comprising such borrowing.
(b) Any Non-Australian Bank may fund its purchase of participations
(under SECTION 2.3.4) in Australian Loans, and any Bank may fund its
participation (under SECTION 2.4.5) in any Letter of Credit denominated in
any currency
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other than U.S. Dollars, by delivering to the Agent on the date such
participation is to be funded an amount in U.S. Dollars equal to the sum of
(i) the amount necessary for the Agent to purchase on such date in
accordance with its customary procedures Australian Dollars or the
applicable currency of such Letter of Credit, as the case may be, in an
amount sufficient to fund such Bank's required participation payment plus
(ii) the reasonable and customary costs, fees and expenses of the Agent in
making such purchase.
SECTION 3 NOTES EVIDENCING LOANS.
3.1 NOTES. The Loans of each Bank to each Borrower shall be evidenced by
a promissory note (as amended, supplemented, replaced or otherwise modified from
time to time, individually each a "Note" and collectively for all Banks the
"Notes") substantially in the form of EXHIBIT A, with appropriate insertions,
dated the Effective Date (or such earlier date as shall be satisfactory to the
Agent), payable to the order of such Bank in an amount equal to such Bank's
Commitment or portion of the Aggregate Australian Commitment, as the case may be
(or, if less, in the aggregate unpaid principal amount of such Bank's Loans to
the applicable Borrower).
3.2 RECORDKEEPING. Each Bank shall record in its records, or at its
option on the schedule attached to the applicable Note, the date and amount of
each Loan made by such Bank to the applicable Borrower, each repayment,
conversion or continuation thereof and, in the case of each Eurodollar Loan and
Xxxx Rate Loan, the dates on which each Interest Period for such Loan shall
begin and end. The aggregate unpaid principal amount so recorded shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on such
Note. The failure to so record any such amount or any error in so recording any
such amount shall not, however, limit or otherwise affect the obligations of the
applicable Borrower hereunder or under any Note to repay the principal amount of
the Loans evidenced by such Note together with all interest accruing thereon.
SECTION 4 INTEREST.
4.1 INTEREST RATES. The Borrowers promise to pay interest on the unpaid
principal amount of each Loan for the period commencing on the date of such Loan
until such Loan is paid in full, as follows:
(a) at all times while such Loan is a Floating Rate Loan, at a rate
per annum equal to the Alternate Reference Rate from time to time in
effect; and
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(b) at all times while such Loan is a Eurodollar Loan, at a rate per
annum equal to the sum of the Eurodollar Rate (Reserve Adjusted) applicable
to each Interest Period for such Loan plus the Margin; and
(c) at all times while such Loan is a Xxxx Rate Loan, at a rate per
annum equal to the sum of the Bank Xxxx Rate applicable to each Interest
Period for such Loan plus the Margin;
PROVIDED, HOWEVER, that at any time an Event of Default exists, at the request
of the Required Banks the interest rate applicable to each Loan to the Company
shall be increased by 2%; and PROVIDED, FURTHER, that if any Loan to Xxxxx
Australia is not paid when due (by acceleration or otherwise), the principal of
such Loan shall bear interest from such due date until paid at a rate per annum
equal to the Eurodollar Rate or the Bank Xxxx Rate, as the case may be, in
effect from time to time plus the Margin plus 2%.
4.2 INTEREST PAYMENT DATES. Accrued interest on each Floating Rate Loan
shall be payable on the last day of each calendar quarter and at maturity,
commencing with the first of such dates to occur after the date of such Loan.
Accrued interest on each Eurodollar Loan and Xxxx Rate Loan shall be payable on
the last day of each Interest Period relating to such Loan (and, in the case of
each Eurodollar Loan and Xxxx Rate Loan with an Interest Period in excess of
three months, on each three-month anniversary of the first day of such Interest
Period) and at maturity. After maturity, accrued interest on all Loans shall be
payable on demand.
4.3 SETTING AND NOTICE OF CERTAIN RATES. The applicable Eurodollar Rate
or Bank Xxxx Rate for each Interest Period shall be determined by the Agent, and
notice thereof shall be given by the Agent promptly to the Company or Xxxxx
Australia, as applicable, and each Bank or each Australian Bank, as applicable.
Each determination of the applicable Eurodollar Rate and Bank Xxxx Rate by the
Agent shall be conclusive and binding upon the parties hereto, in the absence of
demonstrable error. The Agent shall, upon written request of the Company, Xxxxx
Australia or any Bank, deliver to such Person a statement showing the
computations used by the Agent in determining any applicable Eurodollar Rate or
Bank Xxxx Rate hereunder.
4.4 COMPUTATION OF INTEREST. Interest shall be computed for the actual
number of days elapsed on the basis of a year of 360 days. The applicable
interest rate for each Floating Rate Loan shall change simultaneously with each
change in the Alternate Reference Rate.
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SECTION 5 FEES.
5.1 FACILITY FEE. The Company agrees to pay to each Bank a facility fee
for the period from and including the Effective Date to but excluding the
Termination Date (and thereafter until all Loans and reimbursement obligations
have been paid in full and all Letters of Credit have expired or terminated) at
a rate per annum equal to the Facility Fee Rate on the daily average of the
amount of such Bank's Commitment (or, after termination of the Commitments, of
the aggregate Dollar Equivalent principal amount of such Bank's Loans plus such
Bank's Percentage of the Stated Amount of all Letters of Credit). The facility
fee shall be payable in arrears on the last day of each calendar quarter and on
the Termination Date for any period then ending for which such facility fee
shall not have been theretofore paid (provided that after the Termination Date
the facility fee shall be payable on demand). The facility fee shall be
computed for the actual number of days elapsed on the basis of a year of 360
days.
5.2 LETTER OF CREDIT FEES.
(a) The Company agrees to pay to the Agent for the account of the
Banks pro rata according to their respective Percentages a letter of credit
fee for each Letter of Credit at a rate per annum equal to the LC Fee Rate
for the applicable type of Letter of Credit (computed for the actual number
of days elapsed on the basis of a year of 360 days) multiplied by the
Dollar Equivalent amount available to be drawn under such Letter of Credit,
payable in arrears on the last day of each calendar quarter and on the
Termination Date for the period from and including the date of the issuance
of such Letter of Credit to but excluding the date such payment is due or,
if earlier, the date on which such Letter of Credit expired or was
terminated.
(b) In addition, with respect to each Letter of Credit, the Company
agrees to pay to the Agent for the sole account of the Issuer (i) such fees
and expenses as the Issuer customarily requires in connection with the
issuance, negotiation, processing and/or administration of letters of
credit in similar situations and (ii) a letter of credit fee for each
Letter of Credit in an Dollar Equivalent amount equal to 0.25% per annum
(computed for the actual number of days elapsed on the basis of a year of
360 days) of the Dollar Equivalent amount available to be drawn under such
Letter of Credit, payable in arrears on the last day of each calendar
quarter and on the Termination Date for the period from and including the
date of the issuance of such Letter of Credit to but excluding the date
such payment is due or, if earlier, the date on which such Letter of Credit
expired or was terminated.
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(c) For purposes of calculating letter of credit fees pursuant to
CLAUSE (A) and CLAUSE (B)(II) above, the Agent will determine the Dollar
Equivalent amount of each Letter of Credit (i) on the date of issuance
thereof, (ii) on each date on which the amount available to be drawn
thereunder changes and (iii) on the last Business Day of each month.
5.3 AGENT'S AND ARRANGER'S FEES. The Company agrees to pay to the Agent
and the Arranger such fees at such times and in such amounts as are mutually
agreed upon by the Company and the Agent and the Arranger, respectively.
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS.
6.1 REDUCTION OR TERMINATION OF THE COMMITMENTS.
6.1.1 SCHEDULED MANDATORY REDUCTIONS OF THE AGGREGATE COMMITMENT. The
Aggregate Commitment shall be reduced on each of the following dates (each a
"Commitment Reduction Date") to the amount set forth in SCHEDULE 6.1.1 opposite
such date (it being understood that no reduction shall be required on such date
if the Aggregate Commitment has already been reduced to an amount which is equal
to or less than the applicable amount set forth in SCHEDULE 6.1.1).
6.1.2 ADDITIONAL MANDATORY REDUCTIONS OF THE AGGREGATE COMMITMENT.
(a) Within 30 days after any sale, transfer or other disposition
(including the disposition of the stock of any Subsidiary, whether by sale,
merger or otherwise) by the Company or any Subsidiary of any asset outside
the ordinary course of its business to a Person other than the Company or a
Subsidiary, the Aggregate Commitment shall be reduced by an amount equal to
100% of the Net Cash Proceeds of such sale, transfer or other disposition;
PROVIDED that (i) the foregoing shall not apply to the extent that (x) the
Net Cash Proceeds of all such sales, transfers and other dispositions since
the Effective Date does not exceed a Dollar Equivalent amount of U.S.
$5,000,000 and (y) the excess of the Net Cash Proceeds of all such sales,
transfers or other dispositions since the Effective Date over the amount of
Net Cash Proceeds previously applied to reduce the Aggregate Commitment
pursuant to this CLAUSE (A) does not exceed a Dollar Equivalent amount of
U.S.$500,000; and (ii) any reduction of the Aggregate Commitment pursuant
to this CLAUSE (A) shall (if necessary) be rounded down to an integral
multiple of U.S.$500,000.
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(b) Concurrently with the receipt of any Net Cash Proceeds from any
issuance of equity securities of the Company (including any Qualified
Public Offering, but excluding the issuance of shares of common stock of
the Company pursuant to any employee or director stock option program,
benefit plan or compensation program), the Aggregate Commitment shall be
reduced by an amount (rounded to the nearest integral multiple of
U.S.$500,000) equal to the lesser of (i) 75% of such Net Cash Proceeds and
(ii) the amount of Debt which would need to be repaid by the Company and
its Subsidiaries (after giving effect to the issuance of such equity
securities) to cause the Debt to Capitalization Ratio to be equal to or
less than 0.5 to 1: PROVIDED that no reduction of the Aggregate Commitment
shall be required under this CLAUSE (B) at any time after the first date
occurring after October 31, 1997 on which, as of the last day of a Fiscal
Quarter, the Debt to Capitalization Ratio is equal to or less than 0.5 to
1.
(c) Concurrently with the receipt of any Net Cash Proceeds from the
issuance of any Other Debt of the Company or any Subsidiary, the Aggregate
Commitment shall be reduced by an amount (rounded to the nearest integral
multiple of U.S.$500,000) equal to 100% of such Net Cash Proceeds.
6.1.3 VOLUNTARY REDUCTION OR TERMINATION OF COMMITMENTS. The Company may
from time to time on at least five Business Days' prior written notice received
by the Agent (which shall promptly advise each Bank thereof) permanently reduce
the Aggregate Commitment to an amount not less than the Aggregate Outstandings.
Any such reduction shall be in an amount not less than U.S.$2,000,000 and an
integral multiple of U.S.$500,000. The Company may at any time on like notice
terminate the Commitments upon payment in full of all Loans and all other
obligations of the Borrowers hereunder and upon the cash collateralization in
full, pursuant to documentation in form and substance reasonably satisfactory to
the Agent and the Banks, of all obligations arising with respect to the Letters
of Credit.
6.1.4 ALL REDUCTIONS PRO RATA. All reductions of the Commitments shall be
pro rata among the Banks according to their respective Percentages.
6.2 PREPAYMENTS.
6.2.1 MANDATORY PREPAYMENTS RESULTING FROM COMMITMENT REDUCTIONS. On each
date on which the Commitments are reduced pursuant to SECTION 6.1.1 or 6.1.2,
the Company shall, or shall cause Xxxxx Australia to, prepay Loans in the amount
necessary (if any) so that the Aggregate Outstandings will not exceed the
Aggregate Commitment as reduced on such date.
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6.2.2 MANDATORY PREPAYMENTS RESULTING FROM CURRENCY FLUCTUATIONS.
(a) If on any Computation Date the Agent shall have determined that
the Aggregate Outstandings exceed the Aggregate Commitment due to a change
in applicable rates of exchange between U.S. Dollars and any applicable
currency, THEN (i) the Agent shall promptly notify the Company and (ii) the
Company shall, or shall cause Xxxxx Australia to, promptly (subject to the
notice requirements of SECTION 6.2.4) prepay Loans in an amount so that the
Aggregate Outstandings are equal to or less than the Aggregate Commitment;
PROVIDED that no prepayment shall be requested under this CLAUSE (A) on any
day which is a Computation Date solely because it is the last Business Day
of a month unless the Aggregate Outstandings exceed the Aggregate
Commitment by a Dollar Equivalent amount of U.S.$100,000 or more.
(b) If on any Australian Computation Date the Agent shall have
determined that the aggregate Dollar Equivalent principal amount of all
outstanding Australian Loans exceeds the Aggregate Australian Commitment
due to a change in applicable rates of exchange between U.S. Dollars and
Australian Dollars, THEN (i) the Agent shall promptly notify the Company
and (ii) the Company shall promptly (subject to the notice requirements of
SECTION 6.2.4) prepay Australian Loans in an amount so that the aggregate
Dollar Equivalent amount of all outstanding Australian Loans is equal to or
less than the Aggregate Australian Commitment; PROVIDED that no prepayment
shall be required under this CLAUSE (B) on any day which is an Australian
Computation Date solely because it is the last Business Day of a month
unless the aggregate Dollar Equivalent principal amount of all outstanding
Australian Loans exceeds the Aggregate Australian Commitment by a Dollar
Equivalent amount of U.S.$100,000 or more.
6.2.3 VOLUNTARY PREPAYMENTS. Subject to SECTION 6.2.4, either Borrower
may from time to time prepay Loans in whole or in part.
6.2.4 ALL PREPAYMENTS. The applicable Borrower shall give the Agent
(which shall promptly advise each Bank or Australian Bank, as the case may be)
notice of each prepayment not later than 11:00 a.m., Chicago time on the date of
such prepayment, in the case of a prepayment of Floating Rate Loans, not later
than 3:00 p.m., Chicago time, on the third Business Day preceding the day of
such prepayment, in the case of prepayment of Eurodollar Loans to the Company,
and not later than noon, Chicago time, on the fourth Business Day preceding the
date of such prepayment, in the case of prepayment of Australian Loans, in each
case specifying the Loans to be prepaid and the day (which shall be a
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Business Day) and amount of such prepayment. Each partial prepayment pursuant
to SECTION 6.2.3 shall be in a Dollar Equivalent principal amount of at least
U.S.$500,000 and an integral multiple of U.S.$100,000 (or, in the case of Xxxx
Rate Loans, an integral multiple of A$500,000). After giving effect to any
partial prepayment, the aggregate principal amount of each Group of Loans shall
be at least U.S.$500,000 and an integral multiple of U.S.$100,000 (or, in the
case of Xxxx Rate Loans, an integral multiple of A$500,000). Any prepayment of
a Fixed Rate Loan shall include accrued interest to the date of prepayment on
the principal amount being repaid and, if made on a day other than the last day
of an Interest Period therefor, shall be subject to SECTION 8.4.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 MAKING OF PAYMENTS. All payments of principal of or interest on the
Notes, and of all facility fees and Letter of Credit fees, shall be made by the
applicable Borrower to the Agent in immediately available funds and in the
applicable currency at the Agent's Payment Office not later than noon, Chicago
time, on the date due; and funds received after that hour shall be deemed to
have been received by the Agent on the next following Business Day. The Company
hereby authorizes BofA, unless otherwise instructed in writing, to charge the
Company's demand deposit account no. 49-13582 maintained with BofA (or such
other account maintained with BofA or any of its Affiliates as the Company shall
designate in writing to BofA and the Agent) for the amount of any such payment
to be made by the Company on the due date therefor and to pay such amount to the
Agent, but BofA's failure to so charge such account shall in no way affect the
obligation of the Company to make any such payment. The Agent shall promptly
remit to each Bank its share (if any) of all such payments received in collected
funds by the Agent for the account of such Bank.
All payments under SECTIONS 8.1 and 8.4 shall be made by the applicable
Borrower to the Agent at the Agent's Payment Office for the account of the Bank
or Banks entitled thereto.
7.2 APPLICATION OF CERTAIN PAYMENTS. Each payment of principal shall be
applied to such Loans as the applicable Borrower shall direct by notice to be
received by the Agent on or before the date of such payment or, in the absence
of such notice, as the Agent shall determine in its discretion. Concurrently
with each remittance to any Bank of its share of any such payment, the Agent
shall advise such Bank as to the application of such payment.
7.3 DUE DATE EXTENSION. If any payment of principal or interest with
respect to any of the Notes, or of facility fees or
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Letter of Credit fees, falls due on a day which is not a Business Day, then such
due date shall be extended to the next following Business Day (unless, in the
case of a Fixed Rate Loan, such next following Business Day is the first
Business Day of a calendar month, in which case such due date shall be the
immediately preceding Business Day) and additional interest (in the case of
principal) or fees, as the case may be, shall accrue and be payable for the
period of any such extension.
7.4 SETOFF. Each Borrower agrees that the Agent and each Bank have all
rights of set-off and bankers' lien provided by applicable law, and in addition
thereto, each Borrower agrees that at any time (i) any payment or other amount
owing by such Borrower under this Agreement is then due to the Agent or any Bank
or (ii) any Unmatured Event of Default under SECTION 12.1.4 or any Event of
Default exists, the Agent and each Bank may apply to the payment of such payment
or other amount (or, in the case of CLAUSE (II), to any obligations of such
Borrower hereunder, whether or not then due) any and all balances, credits,
deposits, accounts or moneys of such Borrower then or thereafter with the Agent
or such Bank.
7.5 PRORATION OF PAYMENTS. If any Bank shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of offset or otherwise)
on account of principal of or interest on any Note (or an account of its
participation in any Letter of Credit) in excess of its pro rata share of
payments and other recoveries obtained by all Banks on account of principal of
and interest on Notes (or such participations) then held by them (other than in
respect of an Affected Loan or as a result of replacement of a Bank pursuant to
SECTION 8.7), such Bank shall purchase from the other Banks such participation
in the Notes (or sub-participations in Letters of Credit) held by them as shall
be necessary to cause such purchasing Bank to share the excess payment or other
recovery ratably with each of them; PROVIDED, HOWEVER, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Bank, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery.
7.6 TAXES WITH RESPECT TO PAYMENTS BY THE COMPANY. (a) All payments by
the Company hereunder (including all payments of principal of and interest on
the U.S. Loans and all payments under the Guaranty set forth in SECTION 14) to
any Non-U.S. Person shall be made free and clear of and without deduction for
any present or future Taxes. If any deduction or withholding from any payment
to be made by the Company hereunder is required in respect of any Taxes in
respect of payments to a Non-U.S. Person, then the Company will:
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
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(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to
such authority; and
(iii) except to the extent that such deduction or withholding
results from the breach by such Person of its agreement contained in
CLAUSE (B) or (C) below, or would not be required if such Person's
representation and warranty contained in CLAUSE (C) below were true,
pay such additional amounts as may be necessary in order that the net
amount received by such Person after such deduction or withholding
(including any required deduction or withholding on such additional
amounts) shall equal the amount such Person would have received had no
such deduction or withholding been made.
Moreover, if any Taxes are directly asserted against the Agent or any Bank with
respect to any payment received by the Agent or such Bank from the Company
hereunder, the Agent or such Bank may pay such Taxes and the Company will
promptly pay such additional amount (including any penalty, interest and
expense) as is necessary in order that the net amount received by such Person
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount such Person would have received had such Taxes not been
asserted (except to the extent that such Taxes result from such Person's gross
negligence or willful misconduct or from the breach by such Person of its
agreement contained in CLAUSE (B) or (C) below or would not be asserted if such
Person's representation and warranty contained in CLAUSE (C) below were true).
For purposes of this SECTION 7.6, a distribution hereunder by the Agent or any
Bank to or for the account of any Bank of any amount received from the Company
shall be deemed a payment by the Company.
(b) Each Bank which is a Non-U.S. Person agrees (to the extent it is
permitted to do so under the laws of the United States, any applicable double
taxation treaties of the United States, the jurisdiction of its incorporation
and the jurisdiction in which its Eurodollar Office for Eurodollar Loans to the
Company is located) to execute and deliver to the Agent for delivery to the
Company, before the Effective Date and before the first scheduled payment date
in each taxable year thereafter of such Bank, either (i) a United States
Internal Revenue Service Form 1001 or (ii) a United States Internal Revenue Form
4224 together with a United States Internal Revenue Service Form W-9, or any
successor forms, as appropriate, and such other and further forms which the
Company and/or the Agent may reasonably request, in each case properly and
accurately completed and properly claiming complete or partial, as the case may
be,
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exemption from withholding and deduction of United States Federal Taxes in
respect of payments by the Company hereunder.
(c) Each Bank which is a Non-U.S. Person represents and warrants to the
Company and the Agent that, as of the date of this Agreement (or in the case of
any Assignee, as of the effective date of the assignment to such Assignee, or in
the case of any transfer of any rights under a Loan from one office to another
of a Bank, as of the effective date of such transfer),
(i) it is entitled to receive payments hereunder from the
Company without deduction or withholding for or on account of any
Taxes, and
(ii) it is permitted to take the actions described in CLAUSE (B)
above, claiming a complete exemption from withholding of United States
Federal Taxes in respect of payments by the Company hereunder, under
the laws of the United States and any applicable double taxation
treaties of the jurisdictions specified in CLAUSE (B) above.
Each Bank which is a Non-U.S. Person further agrees that, to the extent any form
claiming complete or partial exemption from withholding and deduction of United
States Federal Taxes delivered under CLAUSE (B) above is found to be incomplete
or incorrect in any material respect when delivered, or thereafter based on a
change in law or a change in circumstances or other factors, such Bank shall
execute and deliver to the Agent a complete and correct replacement form, or
shall notify the Agent, which shall give notice thereof to the Company, that
such form is incomplete or incorrect and that no replacement form claiming an
exemption from withholding and deduction of United States Federal Taxes can be
given.
7.7 TAXES WITH RESPECT TO PAYMENTS BY XXXXX AUSTRALIA. (a) All payments
by Xxxxx Australia hereunder (including all payments of principal of and
interest on the Australian Loans) to the Agent or any Bank shall be made free
and clear of and without deduction for any present or future Taxes. If any
deduction or withholding from any payment to be made by Xxxxx Australia
hereunder is required in respect of any Taxes in respect of payments to the
Agent or any Bank, then Xxxxx Australia will:
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to
such authority; and
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(iii) except to the extent that such deduction or withholding
results from the breach by any Australian Bank of its agreement
contained in CLAUSE (B) below, or would not be required if such
Person's representation and warranty contained in CLAUSE (C) below
were true, pay such additional amounts as may be necessary in order
that the net amount received by such Australian Bank's after such
deduction or withholding (including any required deduction or
withholding on such additional amounts) shall equal the amount such
Person would have received had no such deduction or withholding been
made.
Moreover, if any Taxes are directly asserted against the Agent or any Bank with
respect to any payment received by the Agent or such Bank from Xxxxx Australia
hereunder, the Agent or such Bank may pay such Taxes and Xxxxx Australia will
promptly pay such additional amount (including any penalty, interest and
expense) as is necessary in order that the net amount received by such Person
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount such Person would have received had such Taxes not been
asserted (except to the extent that such Taxes result from such Person's gross
negligence or willful misconduct or from the breach by such Person of its
agreement contained in CLAUSE (B) below or would not be asserted if such
Person's representation and warranty contained in CLAUSE (C) below were true).
For purposes of this SECTION 7.7, a distribution hereunder by the Agent or any
Bank to or for the account of any Bank (including any payment with respect to a
participation pursuant to SECTION 2.3.4) of any amount received from Xxxxx
Australia shall be deemed a payment by Xxxxx Australia.
(b) Each Bank agrees (to the extent it is permitted to do so under
applicable law) to execute and deliver to the Agent and Xxxxx Australia such
documents as may be necessary or appropriate from time to time in order to
properly claim any available exemption (whether partial or complete) from
withholding and deduction of any Taxes which are levied or imposed by a
Governmental Authority of or within the Commonwealth of Australia in respect of
payments by Xxxxx Australia hereunder to (or for the benefit of) such Bank;
provided that no Bank which is not an Australian Bank shall have any obligation
under this CLAUSE (B) prior to the date on which such Bank receives notice that
the Agent has received an Australian Participation Funding Notice.
(c) Each Australian Bank represents and warrants to Xxxxx Australia and
the Agent that, as of the date of this Agreement (or in the case of any Assignee
which is an Australian Bank, as of the effective date of the assignment to such
Assignee, or in the case of any transfer of any rights under a Loan from one
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office to another of an Australian Bank, as of the effective date of such
transfer), it is entitled to receive payments hereunder from Xxxxx Australia
without deduction or withholding for or on account of any Taxes which are levied
or imposed by a Governmental Authority of or within the Commonwealth of
Australia.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
FIXED RATE LOANS.
8.1 INCREASED COSTS. (a) If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulations, or any change in the interpretation or administration of any
applicable law, rule or regulation by any Governmental Authority charged with
the interpretation or administration thereof, or compliance by any Bank (or any
Funding Office of such Bank) with any request or directive (whether or not
having the force of law) of any such Governmental Authority:
(A) shall subject any Bank (or any Funding Office of such Bank) to
any tax (other than any tax referred to in SECTION 7.6 or 7.7), duty or
other charge with respect to its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans, or shall change the basis of taxation
of payments to any Bank of the principal of or interest on its Fixed Rate
Loans or any other amounts due under this Agreement in respect of its Fixed
Rate Loans or its obligation to make Fixed Rate Loans (except for changes
in the rate of tax on the overall net income of such Bank or its applicable
Funding Office imposed by the jurisdiction in which such Bank's principal
executive office or Funding Office is located); or
(B) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to SECTION 4), special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by any Bank (or any Funding Office of such Bank); or
(C) shall impose on any Bank (or its applicable Funding Office) any
other condition affecting its Fixed Rate Loans, its Note or its obligation
to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D of the Board of Governors of the Federal Reserve System, to
impose a cost on) such Bank (or any Funding Office of such Bank) of making or
maintaining any Fixed
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Rate Loan, or to reduce the amount of any sum received or receivable by such
Bank (or its applicable Funding Office) under this Agreement or under its Note
with respect thereto, then within 10 days after demand by such Bank (which
demand shall be accompanied by a statement setting forth in reasonable detail
the basis for and a calculation of the amount of such demand, a copy of which
shall be furnished to the Agent), the applicable Borrower shall pay directly to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or such reduction; PROVIDED that neither Borrower shall be
liable for any increased cost or reduced amount as to which such Bank became
aware and failed to notify the applicable Borrower promptly if and to the extent
that prompt notice could have avoided or materially decreased the amount of
payment by such Borrower hereunder.
(b) If any Bank shall reasonably determine that any change in, or the
adoption or phase-in of, any applicable law, rule or regulation regarding
capital adequacy, or any change in the interpretation or administration of
any such law, rule or regulation by any Governmental Authority charged with
the interpretation or administration thereof, or compliance by any Bank (or
any Funding Office of such Bank) or any Person controlling such Bank with
any request or directive regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority, has or would have the
effect of reducing the rate of return on such Bank's or such controlling
Person's capital as a consequence of such Bank's obligations hereunder
(including, without limitation, such Bank's Commitment) to a level below
that which such Bank or such controlling Person could have achieved but for
such change, adoption, phase-in or compliance (taking into consideration
such Bank's or such controlling Person's policies with respect to capital
adequacy) by an amount deemed by such Bank or such controlling Person to be
material, then from time to time, within 10 days after demand by such Bank
(which demand shall be accompanied by a statement setting forth in
reasonable detail the basis for and a calculation of the amount of such
demand, a copy of which shall be furnished to the Agent), the Company shall
pay to such Bank such additional amount or amounts as will compensate such
Bank or such controlling Person for such reduction; PROVIDED that in
determining any reduction in rate of return on capital, each Bank shall act
reasonably and in good faith and will, to the extent any reduction relates
to such Bank's loans and commitments in general and is not specifically
attributable to the Loans and the Commitment hereunder, use averaging and
attribution methods which are reasonable and which cover all loans and
commitments made by such Bank which are similar to the Loans and Commitment
whether or not the loan documentation for
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such other loans and commitments permits such Bank to receive increased
costs of the type described in this CLAUSE (B).
8.2 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR. If with
respect to any Interest Period:
(a) deposits in the relevant currency (in the applicable amounts) are
not being offered to the Agent in the relevant market for such Interest
Period, or the Agent otherwise reasonably determines (which determination
shall be binding and conclusive on the Borrowers) that by reason of
circumstances affecting the relevant market adequate and reasonable means
do not exist for ascertaining the applicable Eurodollar Rate or Bank Xxxx
Rate, as applicable;
(b) Banks having an aggregate Percentage of 40% or more, or
Australian Banks having an aggregate Australian Percentage of 40% or more,
advise the Agent that the Eurodollar Rate (Reserve Adjusted) or the Bank
Xxxx Rate, as applicable, as determined by the Agent will not adequately
and fairly reflect the cost to such Banks of maintaining or funding the
applicable Loans for such Interest Period (taking into account any amount
to which such Banks may be entitled under SECTION 8.1), or that the making
or funding of Eurodollar Loans or Xxxx Rate Loans, as applicable, has
become impracticable as a result of an event occurring after the date of
this Agreement which in the opinion of such Banks materially affects such
Loans,
THEN the Agent shall promptly notify the other parties thereof and, so long as
such circumstances shall continue, (i) no Bank shall be under any obligation to
make or convert into Loans of the type so affected, (ii) if the Loans so
affected are Eurodollar Loans to the Company, on the last day of the current
Interest Period for each Eurodollar Loan to the Company, such Loan shall, unless
then repaid in full, automatically convert to a Floating Rate Loan, and (iii) if
the Loans so affected are Australian Loans, on the last day of the current
Interest Period for each Loan of the type so affected, such Loan shall be repaid
in full (subject to Xxxxx Australia's right to borrow Australian Loans of the
other type in accordance with, and upon satisfaction of the conditions of, this
Agreement).
8.3 CHANGES IN LAW RENDERING FIXED RATE LOANS UNLAWFUL. If any change in
(including the adoption of any new) applicable laws or regulations, or any
change in the interpretation of applicable laws or regulations by any
Governmental Authority or other regulatory body charged with the administration
thereof, should make it (or in the good faith judgment of any Bank cause a
substantial question as to whether it is) unlawful for any Bank
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to make, maintain or fund Eurodollar Loans to the Company or either type of
Australian Loans, THEN such Bank shall promptly notify each of the other parties
hereto and, so long as such circumstances shall continue, (a) in the case of
Eurodollar Loans to the Company, (i) such Bank shall have no obligation to make
or convert into Eurodollar Loans (but shall make Floating Rate Loans
concurrently with the making of or conversion into Eurodollar Loans to the
Company by the Banks which are not so affected, in each case in an amount equal
to such Bank's Percentage of all Eurodollar Loans to the Company which would be
made or converted into at such time in the absence of such circumstances) and
(ii) on the last day of the current Interest Period for each Eurodollar Loan of
such Bank to the Company (or, in any event, if such Bank so requests, on such
earlier date as may be required by the relevant law, regulation or
interpretation), such Eurodollar Loan shall, unless then repaid in full,
automatically convert to a Floating Rate Loan; and (b) in the case of Australian
Loans, (i) such Bank shall have no obligation to make or convert into Australian
Loans of the type so affected (but, if permitted by applicable law, shall make
Australian Loans of the other type concurrently with the making of Australian
Loans of the type so affected by the Australian Banks which are not so affected,
in each case in a Dollar Equivalent amount equal to such Australian Bank's
Australian Percentage of all Australian Loans of the type so affected which
would be made at such time in the absence of such circumstances) and (ii) on the
last day of the current Interest Period for each Australian Loan by such
Australian Bank of the type so affected (or, in any event, if such Australian
Bank so requests, on such earlier date as may be required by the relevant law,
regulation or interpretation), such Australian Loan shall be repaid in full
(subject to Xxxxx Australia's right to borrow Australian Loans of the other type
in accordance with, and upon satisfaction of the conditions of, this Agreement).
Each Floating Rate Loan made by a Bank which, but for the circumstances
described in the foregoing sentence, would be a Eurodollar Loan, and each
Australian Loan made by an Australian Bank which, but for the circumstances
described in the foregoing sentence, would be an Australian Loan of the other
type (any such Floating Rate Loan or Australian Loan, an "Affected Loan"),
shall, notwithstanding any other provision of this Agreement, remain outstanding
for the same period (and be continued for such Interest Periods) as the Group of
Eurodollar Loans or Australian Loans to the applicable Borrower of which such
Affected Loan would be a part absent such circumstances.
8.4 FUNDING LOSSES. Each Borrower hereby agrees that, upon demand by any
Bank (which demand shall be accompanied by a statement setting forth the basis
for the calculations of the amount being claimed, a copy of which shall be
furnished to the Agent), such Borrower will indemnify such Bank against any net
loss or expense which such Bank may sustain or incur (including,
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without limitation, any net loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund or maintain any Fixed Rate Loan), as reasonably determined by such Bank, as
a result of (a) any payment or prepayment or conversion of any Fixed Rate Loan
of such Bank on a date other than the last day of an Interest Period for such
Loan (including, without limitation, any conversion pursuant to SECTION 8.3) or
(b) any failure of such Borrower to borrow, convert or continue any Loans on a
date specified therefor in a notice of borrowing, conversion or continuation
pursuant to this Agreement. For this purpose, all notices to the Agent pursuant
to this Agreement shall be deemed to be irrevocable.
8.5 RIGHT OF BANKS TO FUND THROUGH OTHER OFFICES. Each Bank may, if it so
elects, fulfill its commitment as to any Fixed Rate Loan by causing a foreign
branch or affiliate of such Bank to make such Loan, PROVIDED that in such event
for the purposes of this Agreement such Loan shall be deemed to have been made
by such Bank and the obligation of the applicable Borrower to repay such Loan
shall nevertheless be to such Bank and shall be deemed held by it, to the extent
of such Loan, for the account of such branch or affiliate.
8.6 DISCRETION OF BANKS AS TO MANNER OF FUNDING. Notwithstanding any
provision of this Agreement to the contrary, each Bank shall be entitled to fund
and maintain its funding of all or any part of its Loans in any manner it sees
fit, it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Bank had actually funded and
maintained each Eurodollar Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Eurodollar Rate for
such Interest Period.
8.7 MITIGATION OF CIRCUMSTANCES; REPLACEMENT OF AFFECTED BANK. (a) Each
Bank shall promptly notify the Company and the Agent of any event of which it
has knowledge which will result in, and will use reasonable commercial efforts
available to it (and not, in such Bank's good faith judgment, otherwise
disadvantageous to such Bank) to mitigate or avoid, (i) any obligation by either
Borrower to pay any amount pursuant to SECTION 7.6, 7.7 or 8.1 or (ii) the
occurrence of any circumstances of the nature described in SECTION 8.2 or 8.3
(and, if any Bank has given notice of any such event described in CLAUSE (I) or
(II) above and thereafter such event ceases to exist, such Bank shall promptly
so notify the Company and the Agent). Without limiting the foregoing, each Bank
will designate a different Funding Office if such designation will avoid (or
reduce the cost to the applicable Borrower of) any event
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described in CLAUSE (I) or (II) of the preceding sentence and such designation
will not, in such Bank's sole judgment, be otherwise disadvantageous to such
Bank.
(b) At any time any Bank is an Affected Bank, the Borrowers may
replace such Affected Bank (and any affiliate thereof) as a party to this
Agreement with one or more other bank(s) or financial institution(s)
reasonably satisfactory to the Agent, such bank(s) or financial
institution(s) to have a Commitment in such amount as shall be reasonably
satisfactory to the Agent (and upon notice from the Company such Affected
Bank (and any affiliate thereof) shall assign pursuant to an Assignment
Agreement, and without recourse or warranty, its Commitment, its Loans, its
Notes, its participation in Letters of Credit and all of its other rights
and obligations hereunder to such replacement bank(s) or other financial
institution(s) for a purchase price equal to the sum of the principal
amount of the Loans so assigned, all accrued and unpaid interest thereon,
its ratable share of all accrued and unpaid facility fees and Letter of
Credit fees, any amounts payable under SECTION 8.4 as a result of such Bank
(or any affiliate thereof) receiving payment of any Fixed Rate Loan prior
to the end of an Interest Period therefor and all other obligations owed to
such Affected Bank (or any affiliate thereof) hereunder).
8.8 CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF PROVISIONS. Determinations
and statements of any Bank pursuant to SECTION 8.1, 8.2, 8.3 or 8.4 shall be
conclusive absent demonstrable error. Banks may use reasonable averaging and
attribution methods in determining compensation under SECTIONS 8.1 and 8.4, and
the provisions of such Sections shall survive the expiration or termination of
the Commitments, the repayment of the Loans and all other obligations of the
Borrowers hereunder, the expiration or termination of the Letters of Credit and
the termination of this Agreement.
SECTION 9 WARRANTIES.
To induce the Issuer to issue Letters of Credit and to induce the Agent and
the Banks to enter into this Agreement and to induce the Banks to make Loans and
purchase participations in Letters of Credit hereunder, the Company warrants to
the Agent and the Banks that:
9.1 ORGANIZATION, ETC. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
each Subsidiary is a corporation duly organized, validly existing and in good
standing under the jurisdiction of its incorporation; the Company and each
Subsidiary is duly qualified to do business in each jurisdiction
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where the nature of its business makes such qualification necessary, except
where the failure to be so qualified would not have a Material Adverse Effect;
and the Company and each Material Subsidiary has full corporate power and
authority to own its property and conduct its business as presently conducted by
it.
9.2 AUTHORIZATION; NO CONFLICT. The execution and delivery by each
Borrower of this Agreement and each other Loan Document to which it is a party,
the borrowings hereunder, the execution and delivery by each Guarantor of each
Loan Document to which it is a party and the performance by each Borrower and
each Guarantor of its obligations under each Loan Document to which it is a
party are within the corporate powers of each Borrower and each Guarantor, have
been duly authorized by all necessary corporate action on the part of each
Borrower and each Guarantor (including any necessary shareholder action), have
received all necessary governmental approval (if any shall be required), and do
not and will not (a) violate any provision of law or any order, decree or
judgment of any court or other government agency which is binding on either
Borrower or any Guarantor, (b) contravene or conflict with, or result in a
breach of, any provision of the Certificate of Incorporation, By-Laws or other
organizational documents of either Borrower or any Guarantor or of any material
agreement, indenture, instrument or other document, or material judgment, order
or decree, which is binding on either Borrower, any Guarantor or any other
Subsidiary or (c) result in, or require, the creation or imposition of any Lien
on any property of either Borrower, any Guarantor or any other Subsidiary (other
than (i) Liens arising under the Loan Documents and (ii) Liens securing
obligations not exceeding in the aggregate a Dollar Equivalent amount of
U.S.$100,000).
9.3 VALIDITY AND BINDING NATURE. Each of this Agreement and each other
Loan Document to which either Borrower is a party is, or upon the execution and
delivery thereof will be, the legal, valid and binding obligation of such
Borrower, enforceable against such Borrower in accordance with its terms, except
that enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in
equity or at law); and each Loan Document to which any Guarantor is a party is,
or upon the execution and delivery thereof by such Guarantor will be, the legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, except that enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and
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by general principles of equity (regardless of whether enforcement is sought in
equity or at law).
9.4 FINANCIAL INFORMATION. (a) The audited consolidated financial
statements of the Company and its Subsidiaries at January 31, 1997 and the
unaudited consolidated financial statements of the Company and its Subsidiaries
as at April 30, 1997, copies of which have been delivered to each Bank, have
been prepared in accordance with GAAP (subject, in the case of such unaudited
statements, to the absence of footnotes and to normal year-end adjustments) and
present fairly the consolidated financial condition of the Company and its
Subsidiaries taken as a whole as at such date and the results of their
operations for the periods then ended.
(b) To the best of the Company's knowledge, the audited consolidated
financial statements of Xxxxxxx and its Subsidiaries as at June 30, 1996
and the unaudited consolidated financial statements of Xxxxxxx and its
Subsidiaries as at March 31, 1997, copies of which have been delivered to
each Bank, have been prepared in accordance with generally accepted
accounting principles applicable in Australia (subject, in the case of such
unaudited statements, to the absence of footnotes and to normal year-end
adjustments) and present fairly the consolidated financial condition of
Xxxxxxx and its Subsidiaries taken as a whole as at such dates and the
results of their operations for the periods then ended.
(c) The unaudited pro forma consolidated statements of income of the
Company and its Subsidiaries as of January 31, 1997 and April 30, 1997,
copies of which have been delivered to each Bank, have been prepared in
conformity with GAAP and present fairly (to the best of the Company's
knowledge to the extent such statements relate to Xxxxxxx and its
Subsidiaries) the pro forma financial condition of the Company and its
Subsidiaries as at such dates as if Xxxxxxx had been a Subsidiary of the
Company for the periods ending on such dates.
9.5 NO MATERIAL ADVERSE CHANGE. Since January 31, 1997, no event or
events have occurred which, individually or in the aggregate, has had or is
reasonably likely to have a Material Adverse Effect.
9.6 LITIGATION AND CONTINGENT LIABILITIES. No litigation (including,
without limitation, derivative actions), arbitration proceeding or governmental
proceeding is pending or, to the Company's knowledge, threatened against the
Company or any Subsidiary which is reasonably likely to have a Material Adverse
Effect except as set forth in SCHEDULE 9.6. Other than any
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liability incident to such litigation or proceedings, neither the Company nor
any Subsidiary has any material contingent liabilities not provided for or
disclosed in the financial statements referred to in SECTION 9.4 or listed in
SCHEDULE 9.6.
9.7 OWNERSHIP OF PROPERTIES; LIENS. Each of the Company and each Material
Subsidiary owns good and marketable title to, or a valid leasehold interest in,
all of its properties and assets, real and personal, tangible and intangible, of
any nature whatsoever (including patents, trademarks, trade names, service marks
and copyrights), free and clear of all Liens, charges and claims (including
infringement claims with respect to patents, trademarks, copyrights and the
like) except (a) as permitted pursuant to SECTION 10.8 and (b) that the
Company's use of the name "Xxxxx" is restricted in certain states in the
northeastern United States pursuant to the Agreement dated August 15, 1989
between Hydro Group, Inc. and the Company.
9.8 SUBSIDIARIES. The Company has no Subsidiaries except those listed in
SCHEDULE 9.8.
9.9 PENSION AND WELFARE PLANS. Except as previously disclosed to the
Banks in writing, during the twelve-consecutive-month period prior to the date
of the execution and delivery of this Agreement or the making of any Loan
hereunder, (a) no steps have been taken to terminate any Pension Plan which
would be reasonably likely to result in the Company being required to make a
contribution to such Pension Plan, or incurring a liability or obligation to
such Pension Plan, in excess of U.S.$500,000, and (b) no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could result in the incurrence
by the Company of any material liability, fine or penalty. Except as set forth
on SCHEDULE 9.9, the Company has no contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of subtitle B of title I of ERISA.
9.10 INVESTMENT COMPANY ACT. Neither the Company nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
9.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Company nor any
Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
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9.12 REGULATION U. The Company is not engaged principally, or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
9.13 TAXES. Each of the Company and each Subsidiary has filed all tax
returns and reports required by law to have been filed by it (except for such
tax returns and reports with respect to which the failure to file timely would
not have a Material Adverse Effect) and has paid all taxes and governmental
charges thereby shown to be owing, except for (a) any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books and (b) taxes which in the aggregate do not exceed a Dollar
Equivalent amount of U.S.$100,000.
9.14 SOLVENCY, ETC. On the Effective Date (or, in the case of any Person
which becomes a Guarantor after the Effective Date, on the date such Person
becomes a Guarantor), and immediately prior to and after giving effect to the
issuance of each Letter of Credit and each borrowing hereunder and the use of
the proceeds thereof, (a) each of the Company's and each Guarantor's assets will
exceed its liabilities and (b) each of the Company and each Guarantor will be
solvent, will be able to pay its debts as they mature, will own property with
fair saleable value greater than the amount required to pay its debts and will
have capital sufficient to carry on its business as then constituted.
9.15 HAZARDOUS MATERIALS.
9.15.1 RELEASE AND DISPOSAL. Except as previously disclosed to the Agent
and the Banks in writing prior to the date of this Agreement, (a) neither the
Company nor, to the best of the Company's present knowledge or belief, any other
Person has ever caused or permitted a "reportable quantity" (as defined in the
Comprehensive Environmental Response, Compensation and Liability Act) or a
material quantity of any Hazardous Material to be released or disposed of on,
under or at any real property owned, leased or operated by the Company or any
Material Subsidiary, (b) no such real property has ever been used (by the
Company or, to the best of the Company's present knowledge or belief, by any
other Person) as a site for intentional disposal of any Hazardous Material or a
permanent storage site for any Hazardous Material, and (c) neither the Company
nor, to the best of the Company's present knowledge or belief, any of its
predecessors has ever caused or permitted any Hazardous Material to be disposed
of at any locations other than those identified pursuant to CLAUSE (A), except,
in the case of CLAUSES (A), (B) and (C) collectively, for any such event which
does not constitute a Prohibited Environmental Event.
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9.15.2 TREATMENT AND STORAGE. Except in compliance with applicable law,
or except as previously disclosed to the Banks in writing prior to the date of
this Agreement, (a) neither the Company nor, to the best of the Company's
present knowledge or belief, any other Person has ever caused or permitted any
Hazardous Material to be treated or stored on, under or at any real property
owned, leased or operated by the Company or any Material Subsidiary and (b)
neither the Company nor, to the best of the Company's present knowledge or
belief, any of its predecessors has ever caused or permitted any Hazardous
Material (except for any which may have been present in raw materials or any
products) to be transported to, treated, or stored at any locations other than
those identified pursuant to CLAUSE (A), except, in the case of CLAUSES (A) and
(B) collectively, for any such event which does not constitute a Prohibited
Environmental Event.
9.16 INFORMATION. All written information taken as a whole heretofore or
contemporaneously herewith furnished by the Company or any Subsidiary to the
Agent or any Bank for purposes of or in connection with this Agreement and the
transactions contemplated hereby is, and all written information taken as a
whole hereafter furnished by or on behalf of the Company or any Subsidiary to
the Agent or any Bank pursuant hereto or in connection herewith will be, true
and accurate in every material respect on the date as of which such information
is dated or certified, and none of such information is or will be incomplete by
omitting to state any material fact necessary to make such information not
misleading.
9.17 XXXXXXX ACQUISITION. (a) The Xxxxxxx Acquisition complies in all
material respects with all applicable legal requirements, and all necessary
governmental, regulatory, shareholder and other consents and approvals required
for the consummation of the Xxxxxxx Acquisition have been, or prior to the
consummation thereof will be, duly obtained and in full force and effect.
(b) The consummation by Xxxxx Australia of the Xxxxxxx Acquisition
will not violate any statute or regulation of the United States, Australia
or any other applicable jurisdiction, or any order, judgment or decree of
any court or governmental body, or result in a breach of, or constitute a
default under, any material agreement or indenture, or any order or decree,
affecting the Company or any of its Subsidiaries (including any entity
which will be a Subsidiary after giving effect to the Xxxxxxx Acquisition).
9.18 NO TRUSTEESHIPS. Neither the Company nor any Subsidiary acts as the
trustee of any trust.
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SECTION 10 COVENANTS.
Until the expiration or termination of the Commitments and thereafter until
all obligations of the Borrowers hereunder and under the other Loan Documents
are paid in full and all Letters of Credit have been terminated, the Company
agrees that, unless at any time the Required Banks shall otherwise expressly
consent in writing, it will:
10.1 REPORTS, CERTIFICATES AND OTHER INFORMATION. Furnish to the Agent
and each Bank:
10.1.1 AUDIT REPORT. Promptly when available and in any event within 90
days after the close of each Fiscal Year, (a) a copy of the annual audit report
of the Company and its Subsidiaries for such Fiscal Year, including therein
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such Fiscal Year and consolidated statements of earnings and cash flow of the
Company and its Subsidiaries for such Fiscal Year, which audit report shall be
without qualification as to going concern or scope and shall be prepared by
Deloitte & Touche or other independent auditors of recognized standing selected
by the Company and reasonably acceptable to the Required Banks, together with a
written statement from such auditors to the effect that in making the audit
necessary for the signing of such audit report by such accountants, they have
not become aware of any Event of Default or Unmatured Event of Default that has
occurred and is continuing or, if they have become aware of any such event,
describing it in reasonable detail; and (b) consolidating balance sheets of the
Company and its Subsidiaries as of the end of such Fiscal Year and consolidating
statements of earnings for the Company and its Subsidiaries for such Fiscal
Year, together with a certificate of the Chief Executive Officer, the Chief
Financial Officer or the Treasurer of the Company certifying that such financial
statements fairly present the financial condition and results of operations of
the Company and its Subsidiaries as of the dates and periods indicated.
10.1.2 QUARTERLY REPORTS. Promptly when available and in any event within
45 days after the end of each Fiscal Quarter (except the last Fiscal Quarter) of
each Fiscal Year, consolidated and consolidating balance sheets of the Company
and its Subsidiaries as of the end of such Fiscal Quarter and consolidated and
consolidating statements of earnings and consolidated statements of cash flow
for such Fiscal Quarter and for the period beginning with the first day of such
Fiscal Year and ending on the last day of such Fiscal Quarter, together with a
certificate of the Chief Executive Officer, the Chief Financial Officer or the
Treasurer of the Company, certifying that such financial statements fairly
present the financial condition and results of operations of the Company and its
Subsidiaries as of
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the dates and periods indicated, subject to changes resulting from audit and
normal year-end adjustments.
10.1.3 MONTHLY REPORTS. Promptly when available and in any event within
30 days after the end of each month of each Fiscal Year (except the last month
of each Fiscal Quarter), a financial report substantially in the form of the
monthly reports customarily prepared by the Company as of the date of this
Agreement, certified by the Chief Executive Officer, the Chief Financial Officer
or the Treasurer of the Company.
10.1.4 COMPLIANCE CERTIFICATES. Contemporaneously with the furnishing of
a copy of each annual audit report pursuant to SECTION 10.1.1 and of each set of
quarterly statements pursuant to SECTION 10.1.2, a duly completed certificate in
the form of EXHIBIT F, with appropriate insertions, dated the date of such
annual report or such quarterly statements and signed by the Chief Executive
Officer, the Chief Financial Officer or the Treasurer of the Company, containing
a computation of each of the financial ratios and restrictions set forth in this
SECTION 10 and to the effect that such officer has not become aware of any Event
of Default or Unmatured Event of Default that has occurred and is continuing or,
if there is any such event, describing it and the steps, if any, being taken to
cure it.
10.1.5 REPORTS TO SEC AND TO SHAREHOLDERS. Within 5 days of the filing or
sending thereof, a copy of any annual, periodic or special report or
registration statement (inclusive of exhibits thereto) filed with the SEC or any
securities exchange and any report, proxy statement or other communication to
the Company's shareholders generally.
10.1.6 NOTICE OF DEFAULT, LITIGATION AND ERISA MATTERS. Promptly (and in
any event within one Business Day in the case of CLAUSE (A) and within ten days
in the case of CLAUSES (B) through (F)) upon an executive officer of the Company
(which shall include, without limitation, the Chief Executive Officer, the Chief
Financial Officer, the President, the Treasurer and the General Counsel of the
Company) becoming aware of any of the following, written notice describing the
same and the steps being taken by the Company or the Subsidiary affected thereby
with respect thereto: (a) the occurrence of an Event of Default or an Unmatured
Event of Default; (b) any litigation, arbitration or governmental investigation
or proceeding not previously disclosed by the Company to the Agent or the Banks
which has been instituted or, to the knowledge of the Company, is threatened
against the Company or any Subsidiary or to which any of the properties of any
thereof is subject which has had or is reasonably likely to have a Material
Adverse Effect; (c) any material adverse development which occurs in any
litigation, arbitration or governmental investigation or proceeding
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previously disclosed pursuant to CLAUSE (B); (d) the institution of any steps by
the Company, any of its Subsidiaries or any other Person to terminate any
Pension Plan, or the failure to make a required contribution to any Pension Plan
if such failure is sufficient to give rise to a lien under Section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan which could
result in the requirement that the Company furnish a bond or other security to
the PBGC or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan which could result in the incurrence by the Company of any
material liability, fine or penalty, or any material increase in the contingent
liability of the Company with respect to any post-retirement Welfare Plan
benefit; (e) any lapse, cancellation or termination of, or other material change
in, the pollution liability insurance policy maintained by the Company; and (f)
the occurrence of any other event or circumstance which has had or is reasonably
likely to have a Material Adverse Effect.
10.1.7 SUBSIDIARIES. Promptly upon the occurrences thereof, a written
report of any change in the list of its Subsidiaries.
10.1.8 MANAGEMENT REPORTS. Promptly upon the request of the Agent or any
Bank, copies of all detailed financial and management reports submitted to the
Company by independent auditors in connection with each annual or interim audit
made by such auditors of the books of the Company.
10.1.9 PROJECTIONS. As soon as practicable and in any event within 90
days after the commencement of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year, including, without limitation, (a) a
forecasted consolidated balance sheet and a consolidated statement of cash flow
of the Company for such Fiscal Year and (b) forecasted consolidated statements
of income and cash flows of the Company for each month of such Fiscal Year.
10.1.10 OTHER INFORMATION. From time to time such other information
concerning the Company and its Subsidiaries as any Bank or the Agent may
reasonably request.
10.2 BOOKS, RECORDS AND INSPECTIONS. Keep, and cause each Subsidiary to
keep, its books and records in accordance with sound business practices
sufficient to allow the preparation of financial statements in accordance with
GAAP; permit, and cause each Subsidiary to permit, on reasonable notice and at
reasonable times and intervals (or at any time without notice during the
existence of an Event of Default) any Bank or the Agent or any representative
thereof to inspect the properties and operations of the Company and of such
Subsidiary; and permit, and cause each Subsidiary to permit, on reasonable
notice and at reasonable
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times and intervals (or at any time without notice during the existence of an
Event of Default) any Bank or the Agent or any representative thereof to visit
any or all of its offices, to discuss its financial matters with its officers
and its independent auditors (and the Company hereby authorizes such independent
auditors to discuss such financial matters with any Bank or the Agent or any
representative thereof), and to examine (and, at the expense of the Company or
the applicable Subsidiary, photocopy extracts from) any of its books or other
corporate records. The Company agrees to pay the fees of its auditors incurred
in connection with any reasonable exercise of the rights of the Agent and the
Banks pursuant to this Section.
10.3 INSURANCE. Maintain, and cause each Subsidiary to maintain, with
reputable, financially sound insurance companies, insurance to such extent and
against such hazards and liabilities as is customarily maintained by companies
similarly situated (and, in any event, such insurance as may be required by any
law or governmental regulation or any court order or decree, provided that the
Company shall not be required to maintain any insurance so required if the
Company has reasonably determined that the failure to maintain such insurance
would not (i) be contrary to sound business practice and (ii) under any
reasonably foreseeable circumstances have a Material Adverse Effect); and, upon
request of the Agent or any Bank, furnish to the Agent or such Bank a
certificate setting forth in reasonable detail the nature and extent of all
insurance maintained by the Company and its Subsidiaries; PROVIDED THAT as of
the Effective Date, Xxxxxxx does not carry any insurance on equipment used in
the business operations of Xxxxxxx in Africa (such equipment, the "Africa
Equipment") and in order to give the Borrowers an opportunity to review
insurance which is appropriate for the Africa Equipment, for the period from the
Effective Date until the date four months after the Effective Date, neither
Xxxxxxx nor any Subsidiary of Xxxxxxx shall be required to carry any insurance
on any Africa Equipment.
10.4 COMPLIANCE WITH LAWS; PAYMENT OF TAXES AND LIABILITIES. (a) Comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, rules, regulations and orders the noncompliance with which
would be reasonably likely to have a Material Adverse Effect; and (b) pay, and
cause each Subsidiary to pay, prior to delinquency, (i) all taxes and other
governmental charges against it or any of its property and (ii) all trade
accounts payable in accordance with usual and customary business terms, and all
claims for work, labor or materials, which if unpaid might become a Lien upon
any property of the Company or any Subsidiary; PROVIDED, HOWEVER, that (i) the
foregoing shall not require the Company or any Subsidiary to pay (x) any such
tax, trade account payable or charge so long as it shall contest the validity
thereof in good
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faith by appropriate proceedings and shall set aside on its books adequate
reserves with respect thereto in accordance with GAAP or (y) any trade account
payable, the nonpayment of which does not adversely affect the normal delivery
of supplies and services by vendors in the ordinary course of business; and (ii)
no Event of Default or Unmatured Event of Default shall arise under this CLAUSE
(B) if the aggregate Dollar Equivalent amount of all taxes, trade accounts
payable and other charges which have not been paid when due (and which are not
covered by SUBCLAUSE (I)) does not exceed U.S.$250,000.
10.5 MAINTENANCE OF EXISTENCE, ETC. Maintain and preserve, and (subject
to SECTION 10.12) cause each Material Subsidiary to maintain and preserve, (a)
its existence and good standing in the jurisdiction of its incorporation and (b)
its qualification and good standing as a foreign corporation in each
jurisdiction where the nature of its business makes such qualification necessary
(except in those instances in which the failure to be qualified or in good
standing would not (i) if cured, foreclose access to the courts of such
jurisdiction in respect of events occurring prior to such cure or (ii) in any
event, be reasonably likely to result in a Material Adverse Effect).
10.6 FINANCIAL COVENANTS.
10.6.1 MINIMUM INTEREST COVERAGE. Not permit the Interest Coverage Ratio
for any Computation Period, beginning with the Computation Period ending October
31, 1997, to be less than 2.50 to 1 for any Computation Period ending prior to
July 31, 1998, 2.75 to 1 for any Computation Period ending on or after July 31,
1998 but before July 31, 1999, and 3 to 1.00 for any Computation Period ending
on or after July 31, 1999.
10.6.2 MAXIMUM LEVERAGE. Not permit the Leverage Ratio as of the end of
any Fiscal Quarter, beginning with the Fiscal Quarter ending October 31, 1997,
to exceed 2.75 to 1.
10.6.3 DEBT TO CAPITALIZATION RATIO. Not permit the Debt to
Capitalization Ratio as of the end of any Fiscal Quarter to exceed (a) 0.625 to
1 for any Fiscal Quarter ending prior to January 31, 1998, (b) 0.60 to 1 for any
Fiscal Quarter ending on or after January 31, 1998 but before July 31, 1998, (c)
0.55 to 1 for any Fiscal Quarter ending on or after July 31, 1998 but before
April 30, 1999 or (d) 0.50 to 1 for any Fiscal Quarter ending on or after April
30, 1999; PROVIDED that if the Company completes a Qualified Public Offering,
then the Company will not permit the Debt to Capitalization Ratio to exceed (i)
0.55 to 1 as of the end of any Fiscal Quarter ending after the completion of
such Offering but before April 30, 1998 and (ii) 0.50 to 1 as the end of any
Fiscal Quarter on or after April 30, 1998.
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10.6.4 MINIMUM NET WORTH. Not permit Consolidated Adjusted Net Worth at
any time to be less than the sum of (a) U.S.$41,000,000 PLUS (b) 50% of
Consolidated Adjusted Net Income for each semiannual period consisting of the
first and second Fiscal Quarters and the third and fourth Fiscal Quarters from
and after January 31, 1996 to and including the date of any determination
thereof, computed on a cumulative basis for such entire period PLUS (c) an
amount equal to the Restricted Equity Amount. If Consolidated Adjusted Net
Income is a deficit for any such semiannual period, such deficit shall not
reduce the amount of Consolidated Adjusted Net Worth required to be maintained
pursuant to this SECTION 10.6.4.
10.6.5 CAPITAL EXPENDITURES. Not permit the aggregate amount of all
capital expenditures made by the Company and its Subsidiaries in any Fiscal Year
to exceed a Dollar Equivalent amount of U.S.$25,000,000; PROVIDED that the
limitation set forth above shall not apply to any Fiscal Year ending on or after
the first date occurring on or after October 31, 1997 on which, as of the last
day of a Fiscal Quarter, the Debt to Capitalization Ratio is less than 0.5 to 1.
10.7 LIMITATIONS ON DEBT. Not, and not permit any Material Subsidiary to,
create, incur, assume or suffer to exist any Debt, except (a) obligations
arising under the Loan Documents; (b) the Senior Notes; (c) Debt in respect of
Capital Leases; (d) Debt of Material Subsidiaries to the Company or to other
Material Subsidiaries; (e) unsecured Debt of the Company to Subsidiaries not
exceeding a Dollar Equivalent amount of U.S.$4,000,000; (f) Debt incurred in
connection with deferred compensation and supplemental pension payments of the
Company; (g) Hedging Obligations entered into by the Company or any Material
Subsidiary; (h) Suretyship Liabilities in respect of any obligation of the
Company or any Material Subsidiary permitted under this Agreement; (i) Debt in
respect of taxes, assessments or governmental charges to the extent that payment
thereof shall not at the time be required to be made in accordance with SECTION
10.4; (j) Debt in respect of judgments or awards not constituting an Event of
Default under SECTION 12.1.8; (k) Debt arising under non-compete agreements not
exceeding a Dollar Equivalent amount of U.S.$5,000,000; (l) other Debt
outstanding on the date hereof and listed in SCHEDULE 10.7(1) or hereafter
incurred in connection with Liens permitted by SECTION 10.8, and extensions,
renewals and refinancings of any Debt described in this CLAUSE (L) so long as
the principal amount thereof is not increased; (m) Suretyship Liabilities in
respect of indemnification obligations of the Company or any Material Subsidiary
pursuant to contractual agreements entered into by the Company or such
Subsidiary in the ordinary course of its business, not exceeding, in the
aggregate for the Company and its Material Subsidiaries, a Dollar Equivalent
amount of U.S.$2,500,000 at any time outstanding; (n)
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non-interest bearing demand promissory notes evidencing the Company's
obligations under various casualty insurance policies to reimburse the issuing
insurance companies for claims against the Company or any Subsidiary paid by
such insurance companies; (o) Debt of Xxxxxxx and its Subsidiaries listed in
SCHEDULE 10.7(O) which is repaid not less than 30 days after completion of the
Xxxxxxx Acquisition; (p) Suretyship Liabilities in respect of obligations of any
South American Affiliate of the Company in an aggregate Dollar Equivalent amount
not at any time exceeding U.S.$5,000,000; (q) Suretyship Liabilities in respect
of working capital Debt of Elgin Exploration Company Limited in an aggregate
Dollar Equivalent amount not at any time exceeding U.S.$2,000,000; (r) working
capital Debt of Xxxxxxx (and Suretyship Liabilities in respect thereof) in an
aggregate Dollar Equivalent amount not at any time exceeding U.S.$10,000,000;
(s) Suretyship Liabilities with respect to obligations of Xxxxx Xxxxxxx, Inc. in
connection with performance bonds issued in the ordinary course of business,
PROVIDED that the aggregate amount of all such Suretyship Liabilities shall not
at any time exceed U.S.$5,000,000; (t) Suretyship Liabilities with respect to
performance obligations of Elgin Exploration Company Limited relating to the
frozen barrier project at Echo Bay Mines, Ltd.'s Aquarius Gold Mine in Timmins,
Ontario, Canada; and (u) other Debt at any time outstanding, in addition to Debt
permitted by CLAUSES (A) through (T), which, when aggregated with the aggregate
Debt secured by Liens permitted pursuant to SECTION 10.8(N), shall not exceed a
Dollar Equivalent amount of U.S.$7,500,000.
10.8 LIENS. Not, and not permit any Material Subsidiary to, create or
permit to exist any Lien on any of its real or personal properties, assets or
rights of whatsoever nature (whether now owned or hereafter acquired), except
(a) Liens for taxes or other governmental charges not at the time delinquent or
thereafter payable without penalty or being contested in good faith by
appropriate proceedings and, in each case, for which it maintains adequate
reserves; (b) Liens arising in the ordinary course of business (such as (i)
Liens of carriers, warehousemen, mechanics and materialmen and other similar
Liens imposed by law and (ii) Liens incurred in connection with worker's
compensation, unemployment compensation and other types of social security
(excluding Liens arising under ERISA) or in connection with surety and appeal
bonds, bids, performance bonds and similar obligations) for sums not overdue or
being contested in good faith by appropriate proceedings and not involving any
deposits or advances or borrowed money or the deferred purchase price of
property or services, and, in each case, for which it maintains adequate
reserves; (c) Liens identified on SCHEDULE 10.8; (d) Liens in connection with
Capital Leases; (e) any Lien arising in connection with the acquisition,
construction or improvement of property after the date hereof, and attaching
only to the
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property being acquired, constructed or improved, if the Debt secured thereby
does not exceed 90% of the fair market value of the property acquired at the
time of acquisition thereof or 90% of the cost of such construction or
improvement, as the case may be, nor a Dollar Equivalent amount of
U.S.$5,000,000 in the aggregate for all such Debt of the Company and all
Material Subsidiaries at any one time outstanding; (f) attachments, judgments
and other similar Liens, for sums not exceeding a Dollar Equivalent amount of
U.S.$2,000,000 arising in connection with court proceedings, provided the
execution or other enforcement of such Liens is effectively stayed and claims
secured thereby are being actively contested in good faith and by appropriate
proceedings; (g) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in any material
respect with the ordinary conduct of the business of the Company and its
Subsidiaries taken as a whole; (h) Liens in favor of the Agent arising under the
Loan Documents; (i) Liens securing obligations of a Subsidiary to the Company or
to a Wholly-Owned Subsidiary; (j) leases or subleases granted by the Company or
any Subsidiary in the ordinary course of its business; (k) the interest or title
of the lessor of any lease with respect to which the Company or a Subsidiary is
lessee; (l) extensions, renewals or replacements of any Lien permitted by the
foregoing provisions of this SECTION 10.8, but only if the principal amount of
the Debt secured thereby immediately prior to such extension, renewal or
replacement is not increased and such Lien is not extended to any other
property; (m) Liens on property of Xxxxxxx and its Subsidiaries securing Debt
described in SECTION 10.7(O); and (n) other Liens, in addition to Liens
permitted by CLAUSES (A) through (D) and (F) through (1), securing aggregate
Debt which, when aggregated with the Debt permitted to be outstanding pursuant
to SECTION 10.7(U), shall not exceed a Dollar Equivalent amount of
U.S.$7,500,000.
10.9 BUSINESS. The Company will not, and will not permit any Material
Subsidiary to, enter into any business which differs in any material respect
from the business in which the Company, or any Subsidiary of the Company
(including Xxxxxxx and its Subsidiaries), is engaged on the date of this
Agreement; PROVIDED that the Company or any Subsidiary may engage in other
businesses so long as the aggregate amount invested (whether via acquisition of
assets or stock, loans or advances, or otherwise) by the Company and its
Subsidiaries in all such businesses after the Effective Date shall not exceed a
Dollar Equivalent amount of U.S.$5,000,000.
10.10 RESTRICTED PAYMENTS. Not, and not permit any Subsidiary to, (a)
declare or pay any dividends on any of its capital stock (other than stock
dividends), (b) purchase or redeem any such stock or any warrants, options or
other rights in
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respect of such stock, (c) make any other distribution to shareholders (other
than the issuance of stock, or options in respect thereof, to directors,
officers and employees), (d) prepay, purchase or redeem any subordinated Debt or
(e) set aside funds for any of the foregoing; PROVIDED that (i) any Subsidiary
may declare and pay dividends to the Company or to a Wholly-Owned Subsidiary;
(ii) the Company may purchase stock of the Company on the open market and
re-issue such stock to officers and employees of the Company in connection with
incentive compensation plans or other agreements with officers, directors or
employees of the Company approved by the Board of Directors of the Company or
any committee thereof so long as the Company does not purchase more than
U.S.$1,000,000 of such stock in any Fiscal Year; (iii) G&K may make the G&K
Stock Repurchase; and (iv) so long as no Event of Default or Unmatured Event of
Default has occurred and is continuing or would result therefrom, the Company
may pay dividends to its shareholders and/or repurchase stock of the Company,
PROVIDED THAT the aggregate amount of all such dividends and repurchases made
after January 31, 1995 shall not exceed in the aggregate the sum of (x)
U.S.$1,000,000 plus (y) 25% of cumulative Consolidated Net Income for the period
commencing February 1, 1995 and terminating at the end of the last Fiscal
Quarter preceding the date of any proposed dividend or repurchase.
10.11 INVESTMENTS. The Company will not, nor will it permit any
Subsidiary to, make, incur, assume or suffer to exist any Investment in any
other Person, except:
(a) Investments existing on the Effective Date and identified in
EXHIBIT 10.11;
(b) Cash Equivalent Investments;
(c) Investments by the Company in its Subsidiaries or by any
Subsidiary in any other Subsidiary, in the form of contributions to capital
or loans or advances; PROVIDED that, immediately before or after giving
effect to such Investment, no Event of Default or Unmatured Event of
Default shall have occurred and be continuing;
(d) Investments received in connection with the bankruptcy,
insolvency or reorganization of customers and suppliers of the Company and
its Subsidiaries and the settlement of delinquent obligations of, and
disputes with, customers and suppliers of the Company and its Subsidiaries
in its ordinary course of business;
(e) loans or advances or capital contributions made by any Subsidiary
to the Company;
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(f) loans or advances to officers and employees not in excess of a
Dollar Equivalent amount of U.S.$1,500,000 in the aggregate outstanding at
any time;
(g) any loan to a Person purchasing real property or equipment from
the Company or any Subsidiary; PROVIDED that (i) such loan shall not exceed
50% of the sales price of such property or equipment, (ii) if such loan
exceeds a Dollar Equivalent amount of U.S.$200,000, the Company or such
Subsidiary shall retain a Lien on the property or equipment sold, and (iii)
the aggregate amount of all such loans shall not at any time exceed a
Dollar Equivalent amount of U.S.$1,000,000;
(h) Investments in equity securities listed on any national
securities exchange in the United States or Australia; provided that the
aggregate purchase price for all such securities held at any time shall not
exceed a Dollar Equivalent amount of U.S.$5,000,000;
(i) Investments by the Company in joint ventures or corporations that
are not Subsidiaries; provided that the aggregate Dollar Equivalent amount
of all such Investments made after the date of this Agreement shall not at
any time exceed 10% of Stockholders' Equity (calculated for each such
Investment as at the date such Investment is made);
(j) Investments made to consummate Acquisitions, provided that the
aggregate Dollar Equivalent amount of all such Investments (other than
Investments to consummate the Xxxxxxx Acquisition, the G&K Acquisition and
the Xxxxx Xxxxxxx Acquisition) made during the term of this Agreement shall
not exceed U.S.$10,000,000; and
(k) Investments in water xxxxx drilled by the Company for local
municipalities in connection with which such municipality has entered into
a contract to purchase water from such well from the Company and to
purchase such well from the Company at a future date.
10.12 MERGERS, CONSOLIDATIONS, SALES. Not, and not permit any Subsidiary
to, be a party to any merger or consolidation, or purchase or otherwise acquire
all or substantially all of the assets or any stock of any class of, or any
partnership or joint venture interest in, any other Person, or, except in the
ordinary course of its business, sell, transfer, convey or lease any of its
assets, or sell or assign with or without recourse any receivables, except for
(i) any such merger or consolidation, sale, transfer, conveyance, lease or
assignment of or by any Wholly-Owned Subsidiary into the Company or into, with
or to any other Wholly-Owned Subsidiary, (ii) any such purchase or other
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acquisition by the Company or any Wholly-Owned Subsidiary of the assets or stock
of any Wholly-Owned Subsidiary, (iii) Investments permitted by SECTION 10.11,
and (iv) the sale of assets by the Company and its Subsidiaries so long as the
aggregate book value of such assets sold during the term of this Agreement shall
not at any time exceed 10% of the total assets of the Company and its
Subsidiaries as at the last day of the most recently-completed Fiscal Year.
10.13 MODIFICATION OF ORGANIZATIONAL DOCUMENTS. Not permit the
Certificate of Incorporation, By-Laws or other organizational documents of the
Company or any Material Subsidiary to be amended or modified in any way which
would materially adversely affect the interests of the Banks.
10.14 USE OF PROCEEDS. Use the proceeds of the Loans to refinance
existing Debt, for working capital, for capital expenditures and for other
general corporate purposes (including Acquisitions permitted hereunder); and not
use or permit any proceeds of any Loan to be used, either directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
"purchasing or carrying" any Margin Stock.
10.15 FURTHER ASSURANCES. (a) Take, and cause each Material Subsidiary to
take, such actions as are necessary, or as the Agent or any Bank may reasonably
request, from time to time to ensure that the obligations of the Borrowers
hereunder are guarantied by all Material Subsidiaries of the Company (including,
promptly upon the acquisition or creation thereof, any Material Subsidiary
acquired or created after the date hereof). Notwithstanding the foregoing,
Xxxxx Australia and any Subsidiary thereof which is a Material Subsidiary shall
not be obligated to guaranty such obligations until September 30, 1997 (it being
understood that by such date (x) the Company shall cause each such entity to
execute and deliver a counterpart of the Guaranty and (y) in conjunction
therewith, each such entity shall deliver to the Agent such resolutions,
incumbency certificates, opinions and other documents (including evidence of
compliance with Section 206(6) of the Corporations Law of Australia) as the
Agent or the Required Banks may reasonably request to confirm the authorization,
execution and delivery of the Guaranty by, and the enforceability of the
Guaranty against, such entity).
(b) If a Qualified Public Offering is not completed on or before
October 31, 1997, take, and cause each applicable Subsidiary to take, such
actions (including the execution and delivery of pledge agreements, the
delivery of stock certificates and stock powers signed in blank, and the
delivery of certificates and opinions to confirm the effectiveness of such
pledge agreements) as are necessary,
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or as the Agent or any Bank may reasonably request, so that (effective on
November 1, 1997 and at all times thereafter until the Collateral Release
Date (as defined below)) the obligations of the Borrowers and the
Guarantors under the Loan Documents are secured by perfected,
first-priority security interests (subject only to a PARI PASSU Lien in
favor of holders of the Senior Notes) in the stock of each Material
Subsidiary and in 65% of the capital stock of each Foreign Subsidiary which
(x) is a direct Subsidiary of the Company or a Subsidiary which is not a
Foreign Subsidiary and (y) which, together with all of its Subsidiaries,
owns 2% or more of the consolidated assets of the Company and its
Subsidiaries or had 2% or more of the consolidated revenues of the Company
and its Subsidiaries during the most recently ended Fiscal Quarter. For
purposes of the foregoing, the "Collateral Release Date" shall be the first
date on which (i) a Qualified Public Offering has been completed and (ii)
no Event of Default or Unmatured Event of Default exists or would result
from the release of the collateral described in the foregoing sentence.
10.16 TRANSACTIONS WITH AFFILIATES. Not, and not permit any Subsidiary
to, enter into or permit to exist any transaction, arrangement or contract with
any of its Affiliates (other than the Company and its Subsidiaries) which is on
terms which are less favorable than are obtainable from a Person which is not
one of its Affiliates; PROVIDED that the foregoing restriction shall not apply
to fees paid to KKR for the rendering of financial consulting services to the
Company.
10.17 EMPLOYEE BENEFIT PLANS. Maintain, and cause each Subsidiary to
maintain, each Pension Plan in compliance with all applicable requirements of
law and regulations.
10.18 ENVIRONMENTAL COVENANTS.
10.18.1 ENVIRONMENTAL RESPONSE OBLIGATION. (a) Comply, and cause each
Subsidiary to comply, in a reasonable and cost-effective manner with any valid
Federal, state or territory judicial or administrative order requiring the
performance at any real property owned, operated or leased by the Company or any
Subsidiary of activities in response to the release or threatened release of a
Hazardous Material except for the period of time that the Company or such
Subsidiary is diligently in good faith contesting such order; (b) notify the
Agent within ten days of the receipt of any written claim, demand, proceeding,
action or notice of liability by any Person arising out of or relating to the
release or threatened release of a Hazardous Material, except with respect to
any such release or threatened release which constitutes a Non-Reportable
Environmental Event; and (c) notify the Agent within ten days of any release,
threat of release, or
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disposal of Hazardous Material reported to any governmental regulatory authority
at any real property owned, operated, or leased by the Company or any
Subsidiary.
10.18.2 ENVIRONMENTAL LIABILITIES. Not violate any requirement of law
regarding Hazardous Materials if such violation is reasonably likely to result
in a Prohibited Environmental Event; and, without limiting the foregoing, not
commence disposal of any Hazardous Material into or onto any real property
owned, operated or leased by the Company or any Subsidiary nor allow any Lien
imposed pursuant to any law, regulation or order relating to Hazardous Materials
or the disposal thereof to remain on such real property. For purposes of this
Agreement "disposal" means the intentional placement of Hazardous Materials with
no intention of retrieval.
10.19 UNCONDITIONAL PURCHASE OBLIGATIONS. Not, and not permit any
Material Subsidiary to, enter into or be a party to any contract for the
purchase of materials, supplies or other property or services, if such contract
requires that payment be made by it regardless of whether or not delivery is
ever made of such materials, supplies or other property or services.
10.20 INCONSISTENT AGREEMENTS. Not, and not permit any Subsidiary to,
enter into any material agreement containing any provision which would be
violated or breached by any borrowing by the Company hereunder or by the
performance by the Company or any Subsidiary of any of its obligations hereunder
or under any other Loan Document.
10.21 SUBSIDIARIES. The Company will not at any time permit more than 10%
of its consolidated assets to be owned by, or more than 10% of its consolidated
revenues for any Fiscal Quarter to be earned by, Subsidiaries which are not
Material Subsidiaries or Foreign Subsidiaries; and consistent with current
practice, the Company will conduct a substantial part of its consolidated
business directly and not through Subsidiaries (provided that the Company may
(i) conduct its foreign operations through joint ventures, Foreign Subsidiaries
and Xxxxx Australia and its Subsidiaries to the extent otherwise permitted
herein and (ii) conduct its environmental drilling and related environmental
business through one or more Subsidiaries).
10.22 OTHER FINANCIAL COVENANTS. Not, and not permit any Subsidiary to,
enter into or permit to exist any agreement relating to Debt of the Company or
any Material Subsidiary which contains financial covenants which are more
restrictive than the financial covenants set forth in SECTION 10.6.
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SECTION 11 CONDITIONS PRECEDENT.
11.1 CONDITIONS TO EFFECTIVENESS. This Agreement shall become effective,
and all Existing Letters of Credit shall be deemed to have been issued
hereunder, on the date (the "Effective Date") on which all of the following
conditions precedent shall have been satisfied: (i) the conditions for a credit
extension specified in SECTION 11.2 shall have been satisfied; (ii) the Agent
shall have received (x) for the account of each Bank, the closing fee separately
agreed to by such Bank, and (y) for the account of the Agent and the Arranger,
the fees described in SECTION 5.3 (to the extent then due); (iii) the Agent
shall have received evidence that all Loans, all interest thereon, all fees and
all other amounts then payable under the Existing Agreement have been, or on the
Effective Date will be, paid in full (which payment may be made with the
proceeds of the initial Loans hereunder); (iv) the Agent shall have received
evidence that the Senior Notes have been amended to permit the Xxxxxxx
Acquisition; (v) the Agent shall have received evidence, reasonably satisfactory
to the Agent, that the Xxxxxxx Acquisition will be consummated within three
Business Days after the Effective Date; and (vi) the Agent shall have received
all of the following, each duly executed and dated the Effective Date (or such
earlier date as shall be satisfactory to the Agent), in form and substance
satisfactory to the Agent and the Banks, and each (except for the Notes, of
which only the originals shall be signed) in sufficient number of signed
counterparts to provide one for the Agent and each Bank:
11.1.1 AGREEMENT AND NOTES. Counterparts of this Agreement executed by
each of the parties hereto (it being understood that the Agent may rely on a
facsimile copy of the applicable signature page of this Agreement in determining
whether any party hereto has executed and delivered counterparts hereof), a Note
for each Bank issued by the Company and a Note for each Australian Bank issued
by Xxxxx Australia.
11.1.2 RESOLUTIONS. Certified copies of resolutions of the Board of
Directors of each Borrower authorizing or ratifying the execution, delivery and
performance by such Borrower of this Agreement, the Notes and the other Loan
Documents to which such Borrower is a party; and certified copies of resolutions
of the Board of Directors of each Guarantor authorizing or ratifying the
execution, delivery and performance by such Guarantor of each Loan Document to
which such Guarantor is a party.
11.1.3 INCUMBENCY AND SIGNATURE CERTIFICATES. A certificate of
the Secretary or an Assistant Secretary (or other appropriate officer) of each
Borrower and each Guarantor certifying the names of the officer or officers of
such entity authorized to sign the Loan Documents to which such entity is a
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party and any other document in connection with this Agreement, together with a
sample of the true signature of each such officer (it being understood that the
Agent and each Bank may conclusively rely on each such certificate until
formally advised by a like certificate of any changes therein).
11.1.4 GUARANTY. A guaranty (the "Guaranty"), substantially in the form
of EXHIBIT G, executed by each Guarantor.
11.1.5 OPINIONS OF COUNSEL FOR THE COMPANY AND THE GUARANTORS. The
opinions of (a) Xxxxxx & Xxxxxxx, counsel to the Company and the Guarantors,
substantially in the form of EXHIBIT H, (b) Xxxx X. Xxxxxx, Vice
President-General Counsel and Secretary of the Company, substantially in the
form of EXHIBIT I, (c) Xxxxx & XxXxxxxx, Australian counsel to the Company and
Xxxxx Australia, substantially in the form of EXHIBIT J, and (d) Prince, Yeates
& Xxxxxxxxxx, Utah counsel to Xxxxxx Bros. Drilling Company, substantially in
the form of EXHIBIT K.
11.1.6 INSURANCE CERTIFICATE. A certificate setting forth in reasonable
detail the nature and extent of all insurance maintained by the Company and its
Subsidiaries.
11.1.7 OTHER. Such other documents as the Agent or any Bank may
reasonably request.
11.2 ALL LOANS AND LETTERS OF CREDIT. The obligation of each Bank to
make each Loan and of the Issuer to issue each Letter of Credit is subject to
the following further conditions precedent that:
11.2.1 NO DEFAULT. (a) No Event of Default or Unmatured Event of Default
has occurred and is continuing or will result from the making of such Loan or
the issuance of such Letter of Credit and (b) the warranties of the Company
contained in SECTION 9 (excluding, in the case of any Loan made or Letter of
Credit issued after the date of the initial Loans, SECTIONS 9.6 and 9.8 and
except to the extent changes in facts or conditions are expressly permitted or
required hereunder) are true and correct as of the date of the making of such
requested Loan or the issuance of such requested Letter of Credit, with the same
effect as though made on such date.
11.2.2 CONFIRMATORY CERTIFICATE. If requested by the Agent or any Bank,
the Agent shall have received (in sufficient counterparts to provide one to each
Bank) a certificate dated the date of the making of such requested Loan or the
issuance of such requested Letter of Credit and signed by a duly authorized
representative of the Company as to the matters set out in SECTION 11.2.1 (it
being understood that each request by a
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Borrower for the making of a Loan or by the Company for the issuance of a Letter
of Credit shall be deemed to constitute a representation and warranty that the
conditions precedent set forth in SECTION 11.2.1 will be satisfied at the time
of the making of such Loan or the issuance of such Letter of Credit), together
with such other documents as the Agent or any Bank may reasonably request in
support thereof.
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.
12.1 EVENTS OF DEFAULT. Each of the following shall constitute an Event
of Default under this Agreement:
12.1.1 NON-PAYMENT OF THE LOANS, ETC. Default in the payment when due of
the principal of any Loan; or default, and continuance thereof for five days, in
the payment when due of any interest, fee, reimbursement obligation with respect
to any Letter of Credit or other amount payable by either Borrower hereunder or
under any other Loan Document.
12.1.2 NON-PAYMENT OF OTHER DEBT. Any default shall occur under the terms
applicable to any Debt of the Company or any Subsidiary in an aggregate Dollar
Equivalent amount (for all Debt so affected) exceeding U.S.$1,000,000 and such
default shall (a) consist of the failure to pay such Debt when due (subject to
any applicable grace period), whether by acceleration or otherwise, or (b)
accelerate the maturity of such Debt or permit the holder or holders thereof, or
any trustee or agent for such holder or holders, to cause such Debt to become
due and payable prior to its expressed maturity.
12.1.3 OTHER MATERIAL OBLIGATIONS. Default in the payment when due, or in
the performance or observance of, any material obligation of, or condition
agreed to by, the Company or any Material Subsidiary with respect to any
material purchase or lease of goods or services (except only to the extent that
the existence of any such default is being contested by the Company or such
Material Subsidiary in good faith and by appropriate proceedings and appropriate
reserves have been made in respect of such default).
12.1.4 BANKRUPTCY, INSOLVENCY, ETC. The Company or any Material
Subsidiary becomes insolvent or generally fails to pay, or admits in writing its
inability or refusal to pay, debts as they become due; or the Company or any
Material Subsidiary applies for, consents to, or acquiesces in the appointment
of a trustee, receiver, receiver and manager, administrator, liquidator,
provisional liquidator or other custodian for the Company or such Material
Subsidiary or any property thereof, or makes a general assignment for the
benefit of creditors; or, in the absence of such application, consent or
acquiescence, a
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trustee, receiver, receiver and manager, administrator, liquidator, provisional
liquidator or other custodian is appointed for the Company or any Material
Subsidiary or for a substantial part of the property of any thereof and is not
discharged within 60 days; or any bankruptcy, reorganization, debt arrangement,
or other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding (except the voluntary dissolution, not
under any bankruptcy or insolvency law, of a Subsidiary), is commenced in
respect of the Company or any Material Subsidiary, and if such case or
proceeding is not commenced by the Company or such Material Subsidiary, it is
consented to or acquiesced in by the Company or such Material Subsidiary, or
remains for 60 days undismissed; or the Company or any Material Subsidiary takes
any corporate action to authorize, or in furtherance of, any of the foregoing.
12.1.5 NON-COMPLIANCE WITH PROVISIONS OF THIS AGREEMENT. Failure by the
Company to comply with or to perform any covenant set forth in SECTIONS 10.6
through 10.8 and 10.10 through 10.14; or failure by either Borrower to comply
with or to perform any other provision of this Agreement (and not constituting
an Event of Default under any of the other provisions of this SECTION 12) and
continuance of such failure for 30 days after notice thereof to the Company from
the Agent or any Bank or the holder of any Note.
12.1.6 WARRANTIES. Any warranty made by the Company herein is breached or
is false or misleading in any material respect, or any schedule, certificate,
financial statement, report, notice or other writing furnished by the Company or
Xxxxx Australia to the Agent or any Bank is false or misleading in any material
respect on the date as of which the facts therein set forth are stated or
certified.
12.1.7 PENSION PLANS. (i) Institution of any steps by the Company or any
other Person to terminate a Pension Plan if as a result of such termination the
Company could be required to make a contribution to such Pension Plan, or could
incur a liability or obligation to such Pension Plan, in excess of U.S.$500,000,
or (ii) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA.
12.1.8 JUDGMENTS. Final judgments which exceed an aggregate Dollar
Equivalent amount of U.S.$2,000,000 shall be rendered against the Company or any
Subsidiary and shall not have been discharged or vacated or had execution
thereof stayed pending appeal within 30 days after entry or filing of such
judgments.
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12.1.9 INVALIDITY OF GUARANTY, ETC. The Guaranty shall cease to be in
full force and effect with respect to any Guarantor, any Guarantor shall fail
(subject to any applicable grace period) to comply with or to perform any
applicable provision of the Guaranty, or any Guarantor (or any Person by,
through or on behalf of such Guarantor) shall contest in any manner the
validity, binding nature or enforceability of the Guaranty with respect to such
Guarantor.
12.1.10 CHANGE IN CONTROL. (a) Any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended,
but excluding KKR and its Affiliates) shall acquire beneficial ownership (within
the meaning of Rule 13d-3 promulgated under such Act) of 30% or more of the
outstanding shares of common stock of the Company AND KKR and/or one or more
Affiliates thereof shall fail to have beneficial ownership of more outstanding
shares of common stock of the Company than such Person or group of Persons; or
(b) during any 24-month period, individuals who at the beginning of such period
constituted the Company's Board of Directors (together with any new directors
whose election by the Company's Board of Directors or whose nomination for
election by the Company's shareholders was approved by a vote of a majority of
the directors who either were directors at beginning of such period or whose
election or nomination was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company.
12.1.11 BONDING AGREEMENTS. (a) Any Person executing bonds, undertakings
or instruments of guaranty as surety for the Company or any of its Material
Subsidiaries with respect to any drilling contracts or similar contracts to be
entered into by the Company or such Subsidiary for any reason generally ceases
to issue such bonds, undertakings or instruments of guaranty and such cessation
could reasonably be expected to have a Material Adverse Effect; or (b) the
Company or any of its Material Subsidiaries breaches or defaults with respect to
any term of any bonded contract if the effect of such breach or default is to
cause any Person executing bonds, undertakings or instruments of guaranty as
surety for the Company or such Subsidiary to take possession of the work under
such bonded contract and such possession could reasonably be expected to have a
Material Adverse Effect.
12.2 EFFECT OF EVENT OF DEFAULT. If any Event of Default described in
SECTION 12.1.4 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and the Notes and all other obligations
hereunder shall become immediately due and payable and the Company shall become
immediately obligated to deliver to the Agent cash collateral in a Dollar
Equivalent amount equal to the outstanding face amount
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of all Letters of Credit, all without presentment, demand, protest or notice of
any kind; and, in the case of any other Event of Default, the Agent may (and
upon written request of the Required Banks shall) declare the Commitments (if
they have not theretofore terminated) to be terminated and/or declare all Notes
and all other obligations hereunder to be due and payable and/or demand that the
Company immediately deliver to the Agent cash collateral in a Dollar Equivalent
amount equal to the outstanding face amount of all Letters of Credit, whereupon
the Commitments (if they have not theretofore terminated) shall immediately
terminate and/or all Notes and all other obligations hereunder shall become
immediately due and payable and/or the Company shall immediately become
obligated to deliver to the Agent cash collateral in a Dollar Equivalent amount
equal to the face amount of all Letters of Credit, all without presentment,
demand, protest or notice of any kind. The Agent shall promptly advise the
Company of any such declaration, but failure to do so shall not impair the
effect of such declaration. Notwithstanding the foregoing, the effect as an
Event of Default of any event described in SECTION 12.1.1 or 12.1.4 may be
waived by the written concurrence of all of the Banks, and the effect as an
Event of Default of any other event described in this SECTION 12 may be waived
by the written concurrence of the Required Banks. Any cash collateral delivered
hereunder shall be held by the Agent (without liability for interest thereon)
and applied to obligations arising in connection with any drawing under a Letter
of Credit. After the expiration or termination of all Letters of Credit, such
cash collateral shall be applied by the Agent to any remaining obligations
hereunder and any excess shall be delivered to the Company or as a court of
competent jurisdiction may direct.
SECTION 13 THE AGENT.
13.1 APPOINTMENT AND AUTHORIZATION. (a) Each Bank hereby irrevocably
(subject to Section 13.9) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement, each other
Loan Document and each other document executed by either Borrower or any
Guarantor in connection with this Agreement and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement, any other Loan Document or any other document executed by either
Borrower or any Guarantor in connection with this Agreement, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement, in any other Loan Document
or any other document executed by either Borrower or any Guarantor in connection
with this Agreement, the Agent shall not have any duties or responsibilities
except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied covenants,
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functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement, any other Loan Document or any other document executed by
either Borrower or any Guarantor in connection with this Agreement or otherwise
exist against the Agent.
(b) The Issuer shall act on behalf of the Banks with respect to all
Letters of Credit and the documents associated therewith until such time
and except for so long as the Agent may agree at the request of the Banks
to act for the Issuer with respect thereto; PROVIDED, HOWEVER, that the
Issuer shall have all of the benefits and immunities (i) provided to the
Agent in this SECTION 13 with respect to any acts taken or omissions
suffered by the Issuer in connection with Letters of Credit issued or
proposed to be issued by it and the Letter of Credit Applications and
related documents as fully as if the term "Agent", as used in this SECTION
13, included the Issuer with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuer.
13.2 DELEGATION OF DUTIES. The Agent may execute any of its duties under
this Agreement, any other Loan Document or any other document executed by either
Borrower or any Guarantor in connection with this Agreement by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
13.3 LIABILITY OF AGENT. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement, any other Loan Document or any other document
executed by either Borrower or any Guarantor in connection with this Agreement
or the transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by the Company or
any Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement, any other Loan Document or
any other document executed by the Company or any Subsidiary or Affiliate of the
Company in connection with this Agreement, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any other Loan
Document or any other document executed by either Borrower or any Guarantor in
connection with this Agreement, or for any failure of the Company or any other
party to any such document to perform its
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obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or Affiliates.
13.4 RELIANCE BY AGENT. (a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to either Borrower), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement, any other Loan Document, or any other document
executed by either Borrower or any Guarantor in connection with this Agreement
unless it shall first receive such advice or concurrence of the Required Banks
as it deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement, any other Loan Document or any other document
executed by either Borrower or any other Guarantor in connection with this
Agreement in accordance with a request or consent of the Required Banks and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in SECTION 11, each Bank that has executed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter either sent by the Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such
Bank.
13.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Event of Default or Unmatured Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Agent for the account of the Banks or the
Australian Banks, as applicable, unless the Agent shall have received written
notice from a Bank or the Company referring to this Agreement, describing such
Event of Default or Unmatured
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Event of Default and stating that such notice is a "notice of default". The
Agent will notify the Banks of its receipt of any such notice. The Agent shall
take such action with respect to such Event of Default or Unmatured Event of
Default as may be requested by the Required Banks in accordance with SECTION 12;
PROVIDED, HOWEVER, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest of
the Banks.
13.6 CREDIT DECISION. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrower hereunder. Each Bank also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
the other Loan Documents and any other documents executed by either Borrower or
any Guarantor in connection with this Agreement, and to make such investigations
as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Agent, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Company or any of its Subsidiaries which
may come into the possession of any of the Agent-Related Persons.
13.7 INDEMNIFICATION. Whether or not the transactions contemplated hereby
are consummated, the Banks shall indemnify upon demand the Agent-Related Persons
(to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), pro rata according to their
Percentages, from and against any and all Indemnified Liabilities; PROVIDED,
HOWEVER, that no Bank shall be liable for
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the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Person's bad faith, gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, negotiation, execution, closing, delivery, ongoing administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, any other
document executed by either Borrower or any Guarantor in connection with this
Agreement, or any document contemplated by or referred to herein, to the extent
that the Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this Section shall survive the expiration or
termination of the Commitments, the repayment of the Loans and all other
obligations of the Borrowers hereunder, the expiration or termination of the
Letters of Credit, the termination of this Agreement and the resignation of the
Agent.
13.8 AGENT IN INDIVIDUAL CAPACITY. The Agent and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though the Agent were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, the Agent or its Affiliates may receive information
regarding the Company or its Subsidiaries or Affiliates (including information
that may be subject to confidentiality obligations in favor of the Company or
such Subsidiary or Affiliate) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to their
respective Loans (if any), the Agent and its Affiliates shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though BofA were not the Agent, and the terms "Bank", "Banks",
"Australian Bank" and "Australian Banks" include BofA (and any applicable
Affiliate thereof) in such capacity, as applicable.
13.9 SUCCESSOR AGENT. The Agent may, and at the request of the Required
Banks shall, resign as Agent upon 30 days' notice to the Banks and the Company.
If the Agent resigns under this Agreement, the Required Banks shall appoint from
among the Banks a successor agent for the Banks. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Banks and the Company, a successor agent
from among the Banks. Upon the acceptance of its appointment as successor agent
hereunder, such
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successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this SECTION 13, SECTION 15.6 and SECTION 15.13 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Required Banks appoint a successor agent as provided for
above. Notwithstanding the foregoing, however, BofA shall not be required to
resign as the Agent at the request of the Required Banks unless BofA shall also
simultaneously be replaced as "Issuer" hereunder pursuant to documentation in
form and substance reasonably satisfactory to BofA.
13.10 OTHER AGENTS. None of the Banks identified on the signature pages
of this Agreement or any related document as a "Co-Agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Banks as such. Without limiting the foregoing,
none of the Banks so identified as a "Co-Agent" shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges that it has
not relied, and will not rely, on any of the Banks so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
SECTION 14 GUARANTY BY THE COMPANY
14.1 GUARANTY. The Company hereby unconditionally and irrevocably
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by Xxxxx Australia, and the full and punctual payment of all other amounts
payable by Xxxxx Australia under this Agreement. Upon failure by Xxxxx
Australia to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place, in the currency and in the
manner specified in this Agreement. In addition (and without limiting the
foregoing), upon any Loan to Xxxxx Australia being declared or otherwise
becoming immediately due and payable pursuant to SECTION 12.2, the Company shall
forthwith on demand pay all amounts payable under such Loan at the place, in the
currency and in the manner specified in this Agreement.
14.2 GUARANTY UNCONDITIONAL. The obligations of the Company under this
SECTION 14 shall be unconditional and absolute
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and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of Xxxxx Australia under this Agreement or any
Note, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement
or any Note (it being understood that the foregoing shall not permit any
modification, amendment or supplement without the consent of the Company
or, in the case of a Note, the applicable Borrower);
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of Xxxxx Australia under
this Agreement or any Note;
(d) any change in the corporate existence, structure or ownership of
Xxxxx Australia or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting Xxxxx Australia or Xxxxx Australia's assets or
any resulting release or discharge of any obligation of Xxxxx Australia
contained in this Agreement or any Note;
(e) the existence of any claim, set-off or other right which the
Company may have at any time against Xxxxx Australia, the Agent, any Bank
or any other Person, whether in connection herewith or any unrelated
transaction, PROVIDED that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against Xxxxx
Australia for any reason of this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by Xxxxx
Australia of the principal of or interest on any Note or any other amount
payable by Xxxxx Australia under this Agreement; or
(g) any other act or omission to act or delay of any kind by Xxxxx
Australia, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations as guarantor hereunder.
14.3 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The Company's obligations as guarantor hereunder shall remain in
full force and effect until the Commitments shall have terminated and all
obligations of Xxxxx
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Xxxxxxxxx under this Agreement and each Note shall have been paid in full. If
at any time any payment of principal, interest or any other amount payable by
Xxxxx Australia under this Agreement or any Note is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of Xxxxx Australia or otherwise, the Company's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
14.4 WAIVER BY THE COMPANY. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against Xxxxx Australia or any other Person.
14.5 SUBROGATION. Notwithstanding any payment made by or for the account
of Xxxxx Australia pursuant to this SECTION 14, the Company shall not be
subrogated to any right of the Agent or any Bank until such time as the Agent
and the Banks shall have received final payment in cash of the full amount of
all obligations of Xxxxx Australia hereunder.
14.6 STAY OF ACCELERATION. If acceleration of the time for payment of any
amount payable by Xxxxx Australia under this Agreement or any Note is stayed
upon the insolvency, bankruptcy or reorganization of Xxxxx Australia, all such
amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the Company hereunder forthwith on demand by the
Agent made at the request of the Required Banks.
SECTION 15 GENERAL.
15.1 WAIVER; AMENDMENTS. No delay on the part of the Agent or any Bank in
the exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy. No amendment, modification or waiver of, or consent
with respect to, any provision of this Agreement or the Notes shall in any event
be effective unless the same shall be in writing and signed and delivered by the
Agent and signed and delivered by Banks having an aggregate Percentage of not
less than the aggregate Percentage expressly designated herein with respect
thereto or, in the absence of such designation as to any provision of this
Agreement or the Notes, by the Required Banks, and then any such amendment,
modification, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No amendment, modification,
waiver or consent shall (i) extend or increase the amount of the Commitments,
(ii) extend the date for payment of any principal of or interest on the Loans or
any fees payable hereunder, (iii)
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reduce the principal amount of any Loan, the rate of interest thereon or any
fees payable hereunder, (iv) release the Guaranty or the guaranty by the Company
set forth in SECTION 14 or (v) change the aggregate Percentage required to
effect an amendment, modification, waiver or consent without, in each case, the
consent of all Banks. No provisions of SECTION 13 shall be amended, modified or
waived without the consent of the Agent.
15.2 CONFIRMATIONS. Each Borrower and each holder of a Note agree from
time to time, upon written request received by it from the other, to confirm to
the other in writing (with a copy of each such confirmation to the Agent) the
aggregate unpaid principal amount of the Loans then outstanding under such Note.
15.3 NOTICES. (a) All notices hereunder shall be in writing (including
by facsimile transmission) and shall be sent to the applicable party at its
address shown below its signature hereto or at such other address as such party
may, by written notice received by the other parties hereto, have designated as
its address for such purpose. Notices sent by facsimile transmission shall be
deemed to have been given when sent; notices sent by U.S. mail from a location
in the United States of America to a location in the United States of America
shall be deemed to have been given three Business Days after the date when sent
by registered or certified mail, postage prepaid; and notices sent by hand
delivery shall be deemed to have been given when received. Any agreement of the
Agent and the Banks herein to receive certain notices by telephone or facsimile
is solely for the convenience and at the request of the Borrowers. The Agent
and the Banks shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by a Borrower to give such notice and the
Agent and the Banks shall not have any liability to either Borrower or any other
Person on account of any action taken or not taken by the Agent or the Banks in
reliance upon such telephone or facsimile notice. The obligation of the
Borrowers to repay the Loans shall not be affected in any way or to any extent
by any failure by the Agent and the Banks to receive written confirmation of any
telephone or facsimile notice or the receipt by the Agent and the Banks of a
confirmation which is at variance with the terms understood by the Agent and the
Banks to be contained in the applicable telephone or facsimile notice.
(b) Any notice to be given to Xxxxx Australia may be given to the
Company (and shall conclusively be deemed to have been received by Xxxxx
Australia when received, or deemed received, by the Company). Xxxxx
Australia agrees that the Company may give notices hereunder on behalf of
Xxxxx Australia, and that any such notice given by the Company on behalf of
Xxxxx Australia shall be binding upon Xxxxx Australia.
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15.4 COMPUTATIONS. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP applied on a basis consistent with those used in the
preparation of the Company's audited financial statements for the 1997 Fiscal
Year.
15.5 REGULATION U. Each Bank represents that it in good faith is not
relying, either directly or indirectly, upon any Margin Stock as collateral
security for the extension or maintenance by it of any credit provided for in
this Agreement.
15.6 COSTS, EXPENSES AND TAXES. The Borrowers jointly and severally agree
to pay on demand all reasonable out-of-pocket costs and expenses of the Agent
and the Arranger (including Attorney Costs) in connection with the preparation,
negotiation, execution, closing, delivery and ongoing administration of this
Agreement (other than fees and disbursements of internal legal counsel of the
Agent and the Arranger in connection with the preparation, negotiation,
execution and closing of this Agreement), the other Loan Documents and all other
documents provided for herein or delivered or to be delivered hereunder or in
connection herewith (including any amendment, supplement or waiver to any Loan
Documents), and all reasonable out-of-pocket costs and expenses (including
Attorney Costs) incurred by the Agent and each Bank after an Event of Default in
connection with the enforcement of this Agreement, the other Loan Documents or
any such other documents. In addition, the Borrowers jointly and severally
agree to pay, and to save the Agent, the Arranger and the Banks harmless from
all liability for, any stamp or other taxes (including financial institutions
duty and debits tax on credits and debits to bank and other accounts in
Australia) which may be payable in connection with the execution and delivery of
this Agreement, the borrowings hereunder, any payments made to or from any
account in Australia hereunder, the issuance of the Notes or the execution and
delivery of any other Loan Document or any other document provided for herein or
delivered or to be delivered hereunder or in connection herewith. All
obligations provided for in this SECTION 15.6 shall survive the expiration or
termination of the Commitments, the repayment of the Loans and all other
obligations of the Borrowers hereunder, the expiration or termination of the
Letters of Credit and the termination of this Agreement.
15.7 SUBSIDIARY REFERENCES. The provisions of this Agreement relating to
Subsidiaries shall apply only during such times as the Company has one or more
Subsidiaries.
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15.8 CAPTIONS. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
15.9 ASSIGNMENTS; PARTICIPATIONS.
15.9.1 ASSIGNMENTS. Any Bank may, with the prior written consents of the
Company and the Agent (which consents shall not be unreasonably delayed or
withheld), at any time assign and delegate to one or more commercial banks or
other Persons (any Person to whom such an assignment and delegation is to be
made being herein called an "Assignee") all or any fraction of such Bank's
Loans, Commitment and other rights and obligations hereunder (which assignment
and delegation shall be of a constant, and not a varying, percentage of all the
assigning Bank's Loans, Commitment and other rights and obligations) in a
minimum aggregate amount equal to the lesser of (i) the assigning Bank's
remaining Commitment and (ii) U.S.$5,000,000; PROVIDED, HOWEVER, that (a) no
assignment and delegation may be made to any Person if, at the time of such
assignment and delegation, either Borrower would be obligated to pay any greater
amount under SECTION 7.6, 7.7 or SECTION 8 to the Assignee than such Borrower is
then obligated to pay to the assigning Bank under such Sections, (b) the consent
of the Company shall not be required in the case of an assignment from a Bank to
an Affiliate of such Bank, (c) no Australian Bank may make any assignment and
delegation unless (I) such assigning Bank assigns to the same Assignee (or an
affiliate of such Assignee designated to be an Australian Bank hereunder) a
corresponding portion of its Australian Loans and its obligation to make
Australian Loans or (II) the Agent and the Australian Banks agree to adjust the
Australian Percentages, and to make corresponding assignments of outstanding
Australian Loans, to the extent necessary to reflect the fact that such
assigning Bank's pro rata share of the Aggregate Australian Commitment has been
reduced pursuant to such assignment and delegation, and (d) the Borrowers and
the Agent shall be entitled to continue to deal solely and directly with such
Bank in connection with the interests so assigned and delegated to an Assignee
until the date when all of the following conditions shall have been met:
(x) five Business Days (or such lesser period of time as the Agent
and the assigning Bank shall agree) shall have passed after written notice
of such assignment and delegation, together with payment instructions,
addresses and related information with respect to such Assignee, shall have
been given to the Company and the Agent by such assigning Bank and the
Assignee,
(y) the assigning Bank and the Assignee shall have executed and
delivered to the Company and the Agent an
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assignment agreement substantially in the form of EXHIBIT L (an "Assignment
Agreement"), together with any documents required to be delivered
thereunder, which Assignment Agreement shall have been accepted by the
Agent, and
(z) the assigning Bank or the Assignee shall have paid the Agent a
processing fee of U.S.$3,000.
From and after the date on which the conditions described above have been met,
(x) such Assignee shall be deemed automatically to have become a party hereto
and, to the extent that rights and obligations hereunder have been assigned and
delegated to such Assignee pursuant to such Assignment Agreement, shall have the
rights and obligations of a Bank (and, if applicable, an Australian Bank)
hereunder, (y) the assigning Bank, to the extent that rights and obligations
hereunder have been assigned and delegated by it pursuant to such Assignment
Agreement, shall be released from its obligations hereunder and (z) upon the
distribution by the Agent to the Company and the Banks of a new SCHEDULE 1.1(A)
which reflects such assignment and delegation, SCHEDULE 1.1(A) hereto shall be
deemed to be automatically amended in the form of such SCHEDULE 1.1(A). Within
five Business Days after the effectiveness of any assignment and delegation to
an Assignee which was not previously a party hereto, the Company (and, if
applicable, Xxxxx Australia) shall execute and deliver to the Agent (for
delivery to such Assignee) a new Note dated the effective date of such
assignment. If any assigning Bank assigns all of its rights and obligations
hereunder, such assigning Bank shall xxxx its Note or Notes "canceled" and
deliver such Note or Notes to the Company. Any attempted assignment and
delegation not made in accordance with this SECTION 15.9.1 shall be null and
void.
Notwithstanding the foregoing provisions of this SECTION 15.9.1 or any
other provision of this Agreement, (a) any Bank may at any time assign all or
any portion of its Loans and its Note to a Federal Reserve Bank (but no such
assignment shall release any Bank from any of its obligations hereunder) and (b)
no assignment pursuant to this SECTION 15.9.1 shall require the Company to file
any registration statement with the SEC or to apply to qualify any interest
herein or in any Note under the "blue sky" or other securities laws of any
jurisdiction.
15.9.2 PARTICIPATIONS. Any Bank may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing to
such Bank, the Note held by such Bank, the Commitment of such Bank, the
participation interest of such Bank in any Letter of Credit or any other
interest of such Bank hereunder (any Person purchasing any such participating
interest being called a "Participant"). In the event of a sale by a Bank of a
participating interest to a Participant, (x) such
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Bank shall remain the holder of its Note for all purposes of this Agreement, (y)
the Borrowers and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations hereunder and (z) all
amounts payable by the Borrowers shall be determined as if such Bank had not
sold such participation and shall be paid directly to such Bank. No Participant
shall have any direct or indirect voting rights hereunder except with respect to
any of the events described in the penultimate sentence of SECTION 15.1. Each
Bank agrees to incorporate the requirements of the preceding sentence into each
participation agreement which such Bank enters into with any Participant. The
Borrowers agree that if amounts outstanding under this Agreement and the Notes
are due and payable (as a result of acceleration or otherwise), each Participant
shall be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement and any Note and with respect to
any Letter of Credit to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this Agreement or such Note;
PROVIDED that such right of setoff shall be subject to the obligation of each
Participant to share with the Banks, and the Banks agree to share with each
Participant, as provided in SECTION 7.5. The Borrowers also agree that each
Participant shall be entitled to the benefits of SECTION 7.6, 7.7 and SECTION 8
as if it were a Bank (provided that no Participant shall receive any greater
compensation pursuant to SECTION 7.6, 7.7 or SECTION 8 than would have been paid
to the participating Bank if no participation had been sold).
15.10 GOVERNING LAW. This Agreement and each Note shall be a contract
made under and governed by the laws of the State of Illinois applicable to
contracts made and to be performed entirely within such State. Whenever
possible each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Borrowers and rights of the Agent and the
Banks expressed herein or in any other Loan Document shall be in addition to and
not in limitation of those provided by applicable law.
15.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
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15.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Borrowers, the Banks and the Agent and their respective successors and assigns,
and shall inure to the benefit of the Borrowers, the Banks and the Agent and the
permitted successors and assigns of the Banks and the Agent.
15.13 INDEMNIFICATION BY THE BORROWERS.
(a) Whether or not the transactions contemplated hereby are
consummated, the Borrowers shall indemnify and hold the Agent-Related
Persons and each Bank and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified
Person") harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges,
expenses and disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby or thereby, or any action taken or omitted
by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding
(including any bankruptcy or insolvency proceeding or any appellate
proceeding) related to or arising out of this Agreement or the Loans or
Letters of Credit or the use of the proceeds thereof, or related to any
transactions entered into in connection herewith, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); PROVIDED that no Borrower shall have any
obligation hereunder to any Indemnified Person with respect to (a)
Indemnified Liabilities resulting from the bad faith, gross negligence or
willful misconduct of such Indemnified Person or (b) any taxes for which a
Borrower is not liable pursuant to the provisions of SECTION 7.6 or 7.7.
(b) Without limiting the provisions of CLAUSE (A) above, the
Borrowers agree to reimburse each Indemnified Person for, and hold each
Indemnified Person harmless against, any and all losses, claims, damages,
penalties, judgments, liabilities and expenses (including Attorney Costs)
which any Indemnified Person may pay, incur or become subject to arising
out of or relating to the use, handling, release, emission, discharge,
transportation, storage, treatment or disposal of any Hazardous Material at
any real property owned or leased by the Company or any Subsidiary or used
by the Company or any Subsidiary in its business or operations, except to
the extent caused by the acts or omissions of any Indemnified Person.
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(c) All obligations in this SECTION 15.13 shall survive the
expiration or termination of the Commitments, the repayment of the Loans
and all other obligations of the Borrowers hereunder, the expiration or
termination of the Letters of Credit, and the termination of this
Agreement.
15.14 CONFIDENTIALITY. The Agent, the Issuer and the Banks shall hold all
non-public information obtained pursuant to the requirements of this Agreement
which has been identified as such by either Borrower in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and, in any event, may make
disclosure on the same confidential basis as provided for herein that is
reasonably required by any actual or bona fide potential transferee or
participant in connection with the contemplated transfer of any Note or
participation therein or in any Letter of Credit or as required or requested by
any governmental agency or representative thereof or pursuant to legal process;
PROVIDED that, unless specifically prohibited by applicable law or court order,
each of the Agent and each Bank shall notify the Company of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of the Agent or such
Bank by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and PROVIDED FURTHER that
in no event shall the Agent or any Bank be obligated or required to return any
materials furnished by Company.
15.15 PAYMENTS SET ASIDE. To the extent that either Borrower makes a
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any insolvency proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
15.16 NO THIRD PARTIES BENEFITED. This Agreement is made and entered into
for the sole protection and legal benefit of the Borrowers, the Banks, the Agent
and the Agent-Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary of, or have any
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direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents.
15.17 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. EACH OF THE AGENT, EACH BORROWER AND EACH BANK HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE COMPANY,
THE AGENT, EACH BORROWER AND EACH BANK FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT EITHER
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
15.18 WAIVER OF JURY TRIAL. EACH OF THE AGENT, EACH BORROWER, THE ISSUER
AND EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
15.19 JUDGMENT. If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder or under any other Loan Document
in one currency into another currency, the rate of exchange used shall be that
at which in accordance with normal banking procedures the Agent could purchase
the first currency with such other currency on the Business Day preceding that
on which final judgment is given.
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The obligation of each Borrower in respect of any such sum due from it to the
Agent or any Bank hereunder or under any other Loan Document shall,
notwithstanding any judgment in a currency (the "JUDGMENT CURRENCY") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "AGREEMENT CURRENCY"), be discharged only to
the extent that on the Business Day following receipt by the Agent or such Bank
of any sum adjudged to be so due in the Judgment Currency, the Agent or such
Bank may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so
purchased is less than the sum originally due to the Agent or such Bank in the
Agreement Currency, the applicable Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agent or such Bank against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Agent or such Bank in such currency, the Agent or
such Bank agrees to return the amount of any excess to the applicable Borrower
(or to any other Person who may be entitled thereto under applicable law).
15.20 AMENDMENT AND RESTATEMENT; RETURN OF NOTES. This Agreement amends
and restates the Existing Agreement in its entirety and, after the effectiveness
of this Agreement on the Effective Date, the Existing Agreement shall be of no
further force or effect (except for any provisions thereof which by their terms
survive termination thereof). Each Bank which is a party to the Existing
Agreement agrees that it will, as promptly as practicable after the Effective
Date, return to the Company the note issued to such Bank under the Existing
Agreement, marked to show that such note has been superseded.
15.21 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents (and any fee letter between the Company and the Agent and/or the
Arranger), embodies the entire agreement and understanding among the Company,
the Banks, the Issuer and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
15.22 INTERCREDITOR AGREEMENT. Each Bank hereby authorizes the Agent to
sign an Intercreditor Agreement substantially in the form of EXHIBIT M hereto,
which Intercreditor Agreement shall be binding on each of the Banks (including
any Assignee).
[SIGNATURES BEGIN ON THE NEXT PAGE]
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Delivered at Chicago, Illinois, as of the day and year first above written.
XXXXX XXXXXXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Xxxxx X. Xxxxxx, Vice President
--------------------------------
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
XXXXX XXXXXXXXXXX AUSTRALIA
PTY LIMITED ACN 078 167 610
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Title: X.X. Xxxxxx, Director
---------------------------------
c/o Xxxxx Xxxxxxxxxxx Company
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
-00-
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Managing Director
Agency Administrative Services #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
Agent's Payment Office for all
payments in U.S. Dollars:
ABA No. 000-000-000
Attn: Agency Administrative Services #5596
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
For Credit To: 12339-14497
Reference: Xxxxx Xxxxxxxxxxx Company/
Layne Australia (as applicable)
Agent's Payment Office for all payments in
Australian Dollars:
Bank of America NT & SA, Sydney
000 Xxxx Xxxxxx
Xxxxxx 0000
Xxxxxxxxx
Account Name: BOFA SAN XXXX GLOBAL AGENCY
Account Number: 00000000
SWIFT CODE: BOAAUSX
Reference: Layne Australia
-00-
XXXX XX XXXXXXX NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Bank
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Managing Director
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: 000-000-0000
BA AUSTRALIA LIMITED ACN 000 000 000
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Attorney in Fact
c/o Bank of America National Trust
and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: 000-000-0000
-94-
MERCANTILE BANK, as Co-Agent and
as a Bank
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Senior Vice President
-----------------------------
0000 Xxxxxx
0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
-95-
MICHIGAN NATIONAL BANK, as Co-Agent
and as a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Title: COMMERCIAL RELATIONSHIP MANAGER
--------------------------------
00000 Xxxxxxx Xxxx 00-00
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
-00-
XXX XXXX XX XXXX XXXXXX
By: /s/ F.C.H. Xxxxx
----------------------------------
Title: F.C.H. Xxxxx
-------------------------------
Senior Manager Loan Operations
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Law
Facsimile: 000-000-0000
WITH A COPY TO:
The Bank of Nova Scotia
Chicago Representative Xxxxxx
000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: 000-000-0000
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SOCIETE GENERALE - CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Xxxxxx X. Xxxxxxx
------------------------------
Vice President
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: 000-000-0000
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SCHEDULE 1.1(a)
COMMITMENT LIMITS AND PERCENTAGES
AMOUNT OF AUSTRALIAN
NAME OF BANK COMMITMENT PERCENTAGE PERCENTAGE
------------ ---------- ---------- -----------
Bank of America National U.S.$25,000,000 25.0% N/A
Trust and Savings Association
BA Australia Limited* N/A N/A 100%
Mercantile Bank U.S.$20,000,000 20.0% N/A
Michigan National Bank U.S.$20,000,000 20.0% N/A
The Bank of Nova Scotia U.S.$17,500,000 17.5% N/A
Societe Generale-Chicago U.S.$17,500,000 17.5% N/A
Branch
--------------------------------------------------
TOTALS U.S.$100,000,000 100% 100%
* Designated as an Australian Bank by the Bank listed immediately above such
Australian Bank.
SCHEDULE 1.1(b)
PRICING SCHEDULE
The Margin, the Facility Fee Rate and the LC Fee Rate (for the applicable
type of Letter of Credit) shall be determined based on the applicable Debt to
Capitalization Ratio as set forth below.
LC FEE RATE - LC FEE RATE-
DEBT TO FACILITY FINANCIAL NON-FINANCIAL
CAPITALIZATION RATIO MARGIN FEE RATE LETTERS OF CREDIT LETTERS OF CREDIT
-------------------- ------ -------- ----------------- -----------------
Less than 0.45 to 1 0.500% 0.250% 0.500% 0.125%
Equal to or greater than 0.700% 0.300% 0.700% 0.200%
0.45 to 1 but less than
0.60 to 1
Equal to or greater than 0.875% 0.375% 0.875% 0.250%
0.60 to 1
The Margin initially shall be 0.7%, the Facility Fee Rate initially shall
be 0.3%, the LC Fee Rate for Financial Letters of Credit initially shall be 0.7%
and the LC Fee Rate for Non-Financial Letters of Credit initially shall be 0.2%.
Each of the foregoing shall be adjusted, to the extent applicable, 45 days (or,
in the case of the last Fiscal Quarter of any Fiscal Year, 90 days) after the
end of each Fiscal Quarter beginning with the Fiscal Quarter ending July 31,
1997 based on the Debt to Capitalization Ratio as of the last day of such Fiscal
Quarter; PROVIDED that if the Company fails to deliver the financial statements
required by SECTION 10.1.1 or 10.1.2, as applicable, by the due date therefor,
the Margin, the Facility Fee Rate and the LC Fee Rate (for each type of Letter
of Credit) that would apply if the Debt to Capitalization Ratio were greater
than 0.60 to 1 shall apply from such due date until such financial statements
are delivered.
SCHEDULE 1.1(c)
EXISTING LETTERS OF CREDIT
EXPIRY
LETTER NO. BENEFICIARY DATE AMOUNT
---------- ----------- -------- --------------
C7208785 Hartford Fire
Insurance Co. 09/18/97 U.S.$206,755.00
C7228396 Hartford Fire
Insurance Co. 05/01/98 660,936.00
C7260510 BHN Multibanco S.A. 08/26/97 109,577.000
C7264202 Hartford Fire
Insurance Co. 04/30/98 786,000.00
C7275332 Reliance National
Indemnity Co. 04/30/98 2,750,000.00*
C7283163 BHN Multibanco S.A. 10/03/97 50,343.25
C7289299 Liberty Mutual
Insurance Company 04/30/98 400,000.00
C7298316 Krung Thai Bank, Ltd. 07/14/98 34,600.00
C7330328 Hong Kong and Shanghai
Banking 08/15/98 120,000.00
* Will increase to U.S.$3,200,000 on 11/1/97.
SCHEDULE 1.1(d)
INVESTMENTS AS OF FEBRUARY 29, 1996
(WHICH DO NOT CONSTITUTE RESTRICTED INVESTMENTS)
G.A. Xxxxxx U.S.$ 2,026
Rancho Xxxxxxx 59,181
Central Oregon Drilling 4,164
Xxxxxx Xxxxxxx 22,053
Employee Computer Purchases 2,948
Employee Loans 21,810
Officer Loans 313,318
Employee Advances 233,315
Investment in Affiliates - Domestic 2,310,354
Investment in Affiliates - Foreign 15,176,973
Nalco Chemical Co. 479
Homestake Mining 500
----------------
TOTAL U.S.$18,147,121
----------------
----------------
SCHEDULE 6.1.1
SCHEDULED COMMITMENT REDUCTIONS
COMMITMENT AGGREGATE
REDUCTION COMMITMENT
DATE REDUCED TO:
---------- -----------
April 30, 1998 $97,500,000
July 31, 1998 $96,000,000
October 31, 1998 $94,500,000
January 31, 1999 $93,000,000
April 30, 1999 $91,500,000
July 31, 1999 $90,000,000
October 31, 1999 $87,000,000
January 31, 2000 $84,000,000
April 30, 2000 $81,000,000
July 31, 2000 $78,000,000
October 31, 2000 $74,500,000
January 31, 2001 $71,000,000
April 30, 2001 $67,500,000
July 31, 2001 $64,000,000
October 31, 2001 $60,500,000
January 31, 2002 $57,000,000
April 30, 2002 $53,500,000
July 31, 2002 $ 0
SCHEDULE 9.6
LITIGATION AND CONTINGENT LIABILITIES
-NONE-
-3-
SCHEDULE 9.8
SUBSIDIARIES
PERCENTAGE OF VOTING
STOCK OWNED BY
JURISDICTION COMPANY AND EACH
NAME OF SUBSIDIARY OF INCORPORATION OTHER SUBSIDIARY
Xxxxxx Bros. Drilling Company** Utah 100%
Xxxxxxxxxxx Xxxxxx Corporation** Delaware 100%
Xxxxxxxxxxx Xxxxxx International** Cayman Islands 100%
Xxxxxxxxxxx Mining Products Export Barbados 100%
Company, Ltd.**
Xxxxxxxxxxx Products (Thailand) Thailand 100%
Co., Ltd.**
Elgin Exploration Company, Ltd.** Calgary, Alberta, 100%
Canada
Glindemann & Kitching Pty Ltd. *** Australia 51%
Hydroresources Co., Ltd.** Thailand 100%
International Mining Services Australia 100%
Pty Ltd. ***
Layne Arkansas Company Arkansas 100%
Layne Atlantic Company, Inc. Indiana 100%
Xxxxx de Bolivia S.R.L.** Cochabamba, Bolivia 99.9%
Xxxxx de Mexico, S.A. de C.V.** Hermosillo, 99.9%
Sonora, Mexico
Layne Central Company Tennessee 100%
Xxxxx Xxxxxxxxxxx Australia Pty Australia 100%
Limited**
Layne GeoSciences, Inc.** Delaware 100%
Layne Louisiana Company Louisiana 100%
Layne Northern Company, Inc. Indiana 100%
Layne-Northwest Company, Inc. Wisconsin 100%
Layne Ohio Company West Virginia 100%
Layne Texas, Incorporated** Delaware 100%
Layne (Thailand) Limited** Bangkok, Thailand 99.9%
Mid-Continent Drilling Company** Delaware 100%
SMS Offshore Pty Ltd. Australia 100%
Xxxxx Xxxxxxx, Inc. Louisiana 100%
Xxxxxxx Exploration Mining Company Australia 100%
Ltd. ***
Xxxxxxx Mining Services Limited ** Australia 100%
Xxxxxxx Mining Services (Tanzania) Tanzania 100%
Ltd **
Stanmines Ghana Ltd. Xxxxx 000%
Xxxxxxxxx XX ** Australia 100%
__________________
* Will be a Subsidiary upon completion of Xxxxxxx Acquisition
** Designates a Restricted Subsidiary
-2-
SCHEDULE 9.9
WELFARE PLANS
1. Prior to April 30, 1993, the Company provided life insurance in an amount
equal to the lesser of U.S.$10,000 or 25% of the salaried retiree's basic
life insurance on the date of retirement provided (i) the retiree retired
on or after the normal retirement age of 65, AND (ii) the retiree had at
least 20 years of service with the Company as of the date of retirement.
This benefit was discontinued effective May 1, 1993.
2. Prior to April 30, 1993, the Company provided reimbursement to eligible
salaried retirees and qualified spouses up to U.S.$25 per month each of
premiums paid to obtain health insurance which provides supplemental
coverage to Medicare. To be eligible, the retiree must have been at least
age 65 and had at least 20 years of service with the Company. This benefit
was discontinued effective May 1, 1993.
SCHEDULE 10.7(l)
PERMITTED DEBT
Non-Compete - Datum U.S.$296,000
Notes Payable U.S.$60,000
Mortgage Loan U.S.$1,372,000
ABN AMRO U.S.$107,000*
Hunter Premium U.S.$320,000*
*INDICATES DEBT OF XXXXXXX OR A SUBSIDIARY THEREOF WHICH WILL BE PERMITTED
PURSUANT TO SECTION 10.7(L) AFTER XXXXXXX BECOMES A SUBSIDIARY.
SCHEDULE 10.7(o)
XXXXXXX DEBT TO BE REPAID
Bank of New Zealand Debt under a revolving credit
facility in an aggregate
amount not at any time
exceeding a Dollar Equivalent
amount of U.S. $10,000,000
SCHEDULE 10.8
LIENS
-NONE-
SCHEDULE 10.11
INVESTMENTS
Rancho Xxxxxxx
U.S.$ 7,000
Investments in foreign affiliates: 19,094,000
Geotec Xxxxxx Bros., S.A. (Chile)
Geotec, S.A. (Peru)
Xxxxxx Bros. Xxxxxxxxxx, S.A. (Peru)
Xxxxxxxxxxx Chile, S.A. (Chile)
Xxxxxxxxxxx Comercial, S.A. (Peru)
Xxxxxxxxxxx Comercial, S.A. (Chile)
Boytec, S.A. (Panama)
Plantel Industrial (Chile)
Technidrill, Ltd. (France)
Xxxxxxxxxxx Xxxxxx GmbH (Germany)
Equigold (Ghana)* 833,000
Equigold (Xxxxx D'Ivoire)* 186,000
*Indicates Investment of Xxxxxxx or a Subsidiary thereof which will be permitted
pursuant to Section 10.11(a) after Xxxxxxx becomes a Subsidiary.
