Credit Agreement - Cooper Cameron Corp.
[EXECUTION COPY]
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$475,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
COOPER CAMERON CORPORATION
AND THE OTHER BORROWERS NAMED HEREIN
as Borrowers,
THE LENDERS NAMED HEREIN,
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
and
ABN AMRO BANK, N.V.,
BANK OF AMERICA ILLINOIS,
THE BANK OF NOVA SCOTIA,
THE CHASE MANHATTAN BANK,
CREDIT LYONNAIS, NEW YORK BRANCH,
NATIONSBANK OF TEXAS, N.A.,
PNC BANK, NATIONAL ASSOCIATION,
ROYAL BANK OF CANADA, and
SOCIETE GENERALE, SOUTHWEST AGENCY
as Co-Agents
DATED AS OF
March 20, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
THE CREDITS
2.1 Revolving Credit Advances . . . . . . . . . . . . . . . . . . 22
2.2 Singaporean Swing Loan. . . . . . . . . . . . . . . . . . . . 23
2.3 Canadian Swing Loan. . . . . . . . . . . . . . . . . . . . . . 25
2.4 Ratable Loans . . . . . . . . . . . . . . . . . . . . . . . . 26
2.5 Types of Revolving Credit Advances . . . . . . . . . . . . . . 26
2.6 Method of Selecting Types and Interest Periods for New
Revolving Credit Advances . . . . . . . . . . . . . . . . . . 26
2.7 Conversion and Continuation of Outstanding Advances . . . . . 27
2.8 Competitive Bid Advances . . . . . . . . . . . . . . . . . . . 28
2.9 Availability of Funds . . . . . . . . . . . . . . . . . . . . 32
2.10 Fees; Reductions in Aggregate Revolving Credit Commitment . . 32
2.11 Minimum Amount of Each Advance . . . . . . . . . . . . . . . . 33
2.12 Optional Principal Payments . . . . . . . . . . . . . . . . . 33
2.13 Mandatory Payments. . . . . . . . . . . . . . . . . . . . . . 33
2.14 Interest Rate, etc. . . . . . . . . . . . . . . . . . . . . . 34
2.15 Rates Applicable After Default . . . . . . . . . . . . . . . . 34
2.16 Method of Payment . . . . . . . . . . . . . . . . . . . . . . 34
2.17 Telephonic Notices . . . . . . . . . . . . . . . . . . . . . . 35
2.18 Interest Payment Dates; Interest and Fee Basis . . . . . . . . 35
2.19 Notification of Advances, etc . . . . . . . . . . . . . . . . 36
2.20 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . 36
2.21 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . 36
2.22 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection . . . . . . . . . . . . . . . . . . . . . . . 41
3.2 Changes in Capital Adequacy Regulations . . . . . . . . . . . 42
3.3 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . 43
3.4 Availability of Types of Advances . . . . . . . . . . . . . . 43
3.5 Funding Indemnification . . . . . . . . . . . . . . . . . . . 43
3.6 Lender Statements; Survival of Indemnity . . . . . . . . . . . 43
3.7 Right to Substitute Lender . . . . . . . . . . . . . . . . . . 44
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 Restatement . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.2 Each Future Advance . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Corporate Existence and Standing . . . . . . . . . . . . . . . 48
5.2 Authorization and Validity . . . . . . . . . . . . . . . . . . 48
5.3 Compliance with Laws and Contracts . . . . . . . . . . . . . . 48
5.4 Governmental Consents . . . . . . . . . . . . . . . . . . . . 49
5.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . 49
5.6 Material Adverse Change . . . . . . . . . . . . . . . . . . . 49
5.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.8 Litigation and Contingent Obligations . . . . . . . . . . . . 50
5.9 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.10 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.11 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.12 Federal Reserve Regulations . . . . . . . . . . . . . . . . . 51
5.13 Investment Company . . . . . . . . . . . . . . . . . . . . . . 51
5.14 Material Agreements . . . . . . . . . . . . . . . . . . . . . 51
5.15 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 51
5.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.17 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VI
COVENANTS
6.1 Financial Reporting . . . . . . . . . . . . . . . . . . . . . 52
6.2 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 54
6.3 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 54
6.4 Conduct of Business . . . . . . . . . . . . . . . . . . . . . 54
6.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.7 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . 55
6.8 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.9 Capital Stock and Dividends . . . . . . . . . . . . . . . . . 55
6.10 Indebtedness of Subsidiaries. . . . . . . . . . . . . . . . . 56
6.11 Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.12 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . 56
6.13 Sale of Accounts . . . . . . . . . . . . . . . . . . . . . . . 56
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6.14 Investments in Foreign Subsidiaries . . . . . . . . . . . . . 56
6.15 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.16 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . 57
6.18 Restrictions on Subsidiary Payments . . . . . . . . . . . . . 58
6.19 Financial Covenants . . . . . . . . . . . . . . . . . . . . . 58
6.20 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VII
DEFAULTS
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Optional Acceleration of Maturity . . . . . . . . . . . . . . 61
8.2 Automatic Acceleration of Maturity . . . . . . . . . . . . . . 61
8.3 Cash Collateral Account . . . . . . . . . . . . . . . . . . . 62
8.4 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.5 Preservation of Rights . . . . . . . . . . . . . . . . . . . . 63
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations . . . . . . . . . . . . . . . . . 64
9.2 Governmental Regulation . . . . . . . . . . . . . . . . . . . 64
9.3 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 64
9.6 Several Obligations; Benefits of this Agreement . . . . . . . 64
9.7 Expenses; Indemnification . . . . . . . . . . . . . . . . . . 64
9.8 Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.9 Severability of Provisions . . . . . . . . . . . . . . . . . . 65
9.10 Nonliability of Lenders . . . . . . . . . . . . . . . . . . . 65
9.11 CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . 65
9.12 CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . 66
9.13 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . 66
9.14 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.15 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 67
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ARTICLE X
THE AGENT
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.3 General Immunity . . . . . . . . . . . . . . . . . . . . . . . 67
10.4 No Responsibility for Loans, Recitals, etc. . . . . . . . . . 67
10.5 Action on Instructions of Lenders . . . . . . . . . . . . . . 68
10.6 Employment of Agents and Counsel . . . . . . . . . . . . . . . 68
10.7 Reliance on Documents; Counsel . . . . . . . . . . . . . . . . 68
10.8 Agent's Reimbursement and Indemnification . . . . . . . . . . 68
10.9 Notice of Default . . . . . . . . . . . . . . . . . . . . . . 68
10.10 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . 69
10.11 Lender Credit Decision . . . . . . . . . . . . . . . . . . . . 69
10.12 Successor Agent and Issuing Bank . . . . . . . . . . . . . . . 69
10.13 Co-Agents . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
11.2 Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 71
12.2 Participations. . . . . . . . . . . . . . . . . . . . . . . . 71
12.3 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . 72
12.4 Dissemination of Information . . . . . . . . . . . . . . . . . 73
12.5 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE XIII
NOTICES
13.1 Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . 73
13.2 Change of Address . . . . . . . . . . . . . . . . . . . . . . 73
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EXHIBITS
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Exhibit A (Article I) Competitive Bid Note
Exhibit B (Article I) Competitive Bid Quote
Exhibit C (Article I) Competitive Bid Quote Request
Exhibit D (Article I) Invitation for Competitive Bid Quotes
Exhibit E (Article I) Revolving Credit Note
Exhibit F-1 (Article I) Singaporean Swing Loan Note
Exhibit F-2 (Article I) Canadian Swing Loan Note
Exhibit G (Section 6.1(d)) Compliance Certificate
Exhibit H (Section 12.3.1) Assignment Agreement
SCHEDULES
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Schedule 2.9 - Payment Offices
Schedule 5.9 - Subsidiaries
Schedule 5.10 - ERISA
Schedule 5.15 - Environmental
Schedule 6.15 - Liens
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of March 20, 1997,
is among COOPER CAMERON CORPORATION, a Delaware corporation, COOPER CAMERON
(U.K.) LIMITED, a company formed under the laws of the United Kingdom, CAMERON
FRANCE, S.A., a societe anonyme formed under the laws of the Republic of
France, CAMERON GMBH, a Gesellschaft mit beschrankter Haftung formed under the
laws of the Federal Republic of Germany, COOPER CAMERON (SINGAPORE) PTE. LTD.,
a private limited company formed under the laws of the Republic of Singapore,
the Lenders (as defined below), ABN AMRO BANK, N.V., BANK OF AMERICA ILLINOIS,
THE BANK OF NOVA SCOTIA, THE CHASE MANHATTAN BANK, CREDIT LYONNAIS, NEW YORK
BRANCH, NATIONSBANK OF TEXAS, N.A., PNC BANK, NATIONAL ASSOCIATION, ROYAL BANK
OF CANADA, and SOCIETE GENERALE, SOUTHWEST AGENCY, individually and as Co-
Agents, and THE FIRST NATIONAL BANK OF CHICAGO, individually and as Agent.
R E C I T A L S:
A. The Borrowers (as this and other capitalized terms used in these
recitals are defined below), certain of the Lenders, certain of the Co-Agents,
and the Agent are parties to the Credit Agreement dated as of June 30, 1995, as
amended by Amendment No. 1 dated as of June 19, 1996 (the "Existing Credit
Agreement"), pursuant to which such Lenders made term loans in the aggregate
principal amount of $200,000,000 ("Existing Term Loans") and a revolving credit
facility in the aggregate committed amount of $275,000,000 ("Existing
Revolver") to the Borrowers, the proceeds of which were used (1) for the
general corporate needs of the Borrower and the Subsidiaries and (2) to repay
certain indebtedness of the Borrower and the Subsidiaries.
B. The Borrowers have requested the Lenders to amend the Existing
Credit Agreement to refinance the Existing Term Loans and the Existing Revolver
and to revise certain terms thereof and the Lenders have agreed to do so on the
terms and conditions set forth herein.
C. The Lenders have agreed to restate the Existing Credit Agreement
so that this Amended and Restated Credit Agreement constitutes for all purposes
an amendment to the Existing Credit Agreement and not a new or substitute
agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrowers,
the Lenders, the Co-Agents, and the Agent hereby agree as follows:
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ARTICLE I
DEFINITIONS
As used in this Agreement:
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a
given Revolving Lender for the relevant Absolute Rate Interest Period, the rate
of interest per annum (rounded to the nearest 1/100 of 1%) offered by such
Revolving Lender and accepted by the Borrower.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Revolving Lenders to the Borrower at the same time and for the same Absolute
Rate Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.8.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance, a period of not less than 30 and not more than 180 days commencing on
a Business Day selected by the Borrower pursuant to this Agreement. If such
Absolute Rate Interest Period would end on a day which is not a Business Day,
such Absolute Rate Interest Period shall end on the next succeeding Business
Day.
"Absolute Rate Loan" means a Loan which bears interest at the Absolute
Rate.
"Advance" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made on the same Borrowing Date by some or all of the
Lenders to the Relevant Borrower (a) of the same Type (or on the same interest
basis in the case of Competitive Bid Advances), (b) in the case of Eurocurrency
Advances, denominated in Dollars or in the same Alternative Currency, and (c)
when applicable, for the same Interest Period, and includes a Competitive Bid
Advance and a Swing Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 15% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means First Chicago in its capacity as agent for the Lenders
pursuant to Article X, and not in its individual capacity as a Lender, and any
successor Agent appointed pursuant to Article X.
"Aggregate Exposure Amount" means, at any time, the sum of the Dollar
Equivalent of the
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aggregate principal amount of all outstanding Revolving Credit Advances, the
aggregate principal amount of all outstanding Competitive Bid Advances, the
Letter of Credit Exposure, and the Dollar Equivalent of the aggregate principal
amount of all outstanding Swing Loans at such time.
"Aggregate Revolving Credit Commitment" means the aggregate of the
Revolving Credit Commitments of all the Revolving Lenders hereunder.
"Agreement" means this Amended and Restated Credit Agreement, as it may
be amended, modified, or restated and in effect from time to time.
"Agreement Accounting Principles" means U.S. generally accepted
accounting principles as in effect from time to time, applied in a manner
consistent with those used in preparing the Financial Statements; provided,
however, that for purposes of all computations required to be made with respect
to compliance by the Borrower with Section 6.19, such term shall mean generally
accepted accounting principles as in effect on the date hereof, applied in a
manner consistent with those used in preparing the Financial Statements.
"Alternate Base Rate" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (a) the Corporate Base Rate for such day and
(b) the sum of the Federal Funds Effective Rate most recently determined by
First Chicago for such day plus 50 Basis Points per annum.
"Alternative Currency" shall mean, subject to availability pursuant to
Section 3.4 and to the extent freely transferable and convertible into Dollars,
(a) with respect to Revolving Credit Advances, French francs, German marks, and
British pounds sterling, (b) with respect to Canadian Advances, Canadian
dollars, and (c) with respect to Singaporean Advances, Dollars and Singapore
dollars.
"Alternative Currency Sublimit" means $100,000,000.
"Applicable Margin" means, until Senior Debt is rated by either Moody's
or S&P and the Borrower elects to use the pricing schedule below based on
Senior Debt, for any period with respect to any Eurocurrency Advance,
Singaporean Rate Advance, facility fee, or Letter of Credit, the following
applicable Basis Points in effect with respect to such period based upon the
ratio of Total Debt to Total Capitalization as follows:
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Total Debt to Total
Capitalization Ratio Applicable Margin
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Eurocurrency Advances,
Singaporean Rate
Greater than Advances, and Documentary
or equal to But less than Standby Letters of Credit Facility Fees Letters of Credit
------------------------------------------------------------------------------------------
20 Basis
50% ---- 45 Basis Points Points 12.5 Basis Points
------------------------------------------------------------------------------------------
15 Basis
45% 50% 30 Basis Points Points 10 Basis Points
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12.5 Basis
40% 45% 25 Basis Points Points 6 Basis Points
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11 Basis
---- 40% 21.5 Basis Points Points 6 Basis Points
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The ratio of Total Debt to Total Capitalization shall be calculated by the
Borrower as of the end of each of its fiscal quarters commencing March 31, 1997
based upon the most recent certificate executed by an Authorized Officer of the
Borrower and delivered in accordance with Section 6.1(d). The Applicable Margin
shall be adjusted, if necessary, quarterly as of the third day after the
delivery of the certificate provided for above. Notwithstanding the foregoing,
until adjusted as described above for the fiscal quarter ending March 31, 1997,
the ratio of Total Debt to Total Capitalization shall be deemed to be greater
than or equal to 40% but less than 45%.
After Senior Debt is rated by either Moody's or S&P and the Borrower has
elected by written notice to the Agent to use the pricing schedule below,
"Applicable Margin" means for any period with respect to any Eurocurrency
Advance, Singaporean Rate Advance, facility fee, or Letter of Credit, the
following applicable Basis Points in effect with respect to such period based
upon the ratings by S&P or Moody's applicable on such date of Senior Debt as
set forth below:
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Senior Debt Rating Applicable Margin
----------------------------------------------------------------------------------
Eurocurrency Advances,
Singaporean Rate
Advances,
and Standby Documentary
S&P Moody's Letters of Credit Facility Fees Letters of Credit
----------------------------------------------------------------------------------
7.5 Basis
A- or higher A3 or higher 15 Basis Points Points 7.5 Basis Points
----------------------------------------------------------------------------------
9 Basis
BBB+ Baa1 18 Basis Points Points 6 Basis Points
----------------------------------------------------------------------------------
11 Basis
BBB Baa2 21.5 Basis Points Points 6 Basis Points
----------------------------------------------------------------------------------
12.5 Basis
BBB- Baa3 25 Basis Points Points 6 Basis Points
----------------------------------------------------------------------------------
15 Basis
BB+ Ba1 35 Basis Points Points 10 Basis Points
----------------------------------------------------------------------------------
Lower than Lower than 20 Basis
BB+ Ba1 45 Basis Points Points 12.5 Basis Points
----------------------------------------------------------------------------------
If a rating for Senior Debt exists from only Moody's or S&P, the Applicable
Margin shall be based on such rating. If ratings for Senior Debt exist from
both Moody's and S&P and such ratings fall within different categories, the
Applicable Margin shall be based on the higher of the two ratings unless the
lower rating is two or more levels below the higher rating, in which case the
rating which is one level above the lower rating will apply. If the ratings
established by Moody's or S&P for Senior Debt change (other than as a result of
a change in the rating system of Moody's or S&P), such change shall be
effective as of the date on which it is first announced by the applicable
rating agency. If the rating system of either Moody's or S&P shall change when
a rating for Senior Debt exists from both Moody's and S&P or if either such
rating agency shall cease to be in the business of rating corporate debt
obligations while the other remains in such business, the Applicable Margin
shall be based on the rating of the agency that has not changed its rating
system or that remains in the business of rating corporate debt obligations.
If both Moody's and S&P shall change their rating system, cease rating Senior
Debt or cease to be in the business of rating corporate debt obligations, the
Applicable Margin shall be determined by reference to the ratio of Total Debt
to Total Capitalization as provided above.
The Applicable Margin may change during an Interest Period.
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"Article" means an article of this Agreement unless another document is
specifically referenced.
"Asset Disposition" means any sale, transfer, or other disposition of
any asset of the Borrower or any Subsidiary in a single transaction or in a
series of related transactions (other than the sale of inventory in the
ordinary course, the sale of obsolete or excess machinery, equipment, or
furniture in the ordinary course, and the sale of accounts and notes receivable
permitted by Section 6.13).
"Attributable Debt" means as at the time of determination (a) with
respect to a Synthetic Lease, the present value (discounted at the explicit or
implicit interest rate applicable to such Synthetic Lease at such time) of the
total obligations of the lessee for rental payments during the remaining term
of such Synthetic Lease at such time and (b) with respect to an accounts or
notes receivable financing or securitization program, the outstanding balance
of amounts advanced in respect of the receivables and notes under such program.
"Authorized Officer" means, with respect to any of the Borrowers, any of
the president, chief financial officer or treasurer thereof, acting singly.
"Bankruptcy Code" means Title 11, United States Code, sections 1 et
seq., as the same may be amended from time to time, and any successor thereto
or replacement therefor which may be hereafter enacted.
"Basis Point" means 1/100th of one percent.
"Borrower" means Cooper Cameron Corporation, a Delaware corporation, and
its successors and assigns.
"Borrowers" means, collectively, the Borrower and the Borrowing
Subsidiaries.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.6.
"Borrowing Subsidiary" means each of the UK Borrower, the French
Borrower, the German Borrower, the Singaporean Borrower, and when a Wholly-
Owned Subsidiary is the Canadian Borrower, the Canadian Borrower.
"Business Day" means (a) with respect to any borrowing, payment, or rate
selection of Eurocurrency Advances or Singaporean Rate Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in Chicago, New
York, and London, and, for currencies other than Eurodollars, the principal
financial center of the country in whose currency the Advance is to be funded
for the conduct of substantially all of their commercial lending activities and
on which dealings in the relevant currency are carried on in the London
interbank market; provided that, if on
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<PAGE> 13
a date on which a Borrowing Notice or Conversion/Continuation Notice is to be
given banks are generally open in Chicago and New York, but not in London or
the relevant principal financial center and there are at least two days after
the date of such Borrowing Notice or Conversion/Continuation Notice is to be
given and before the requested Borrowing Date during which banks are generally
open in London and the relevant principal financial center, such date shall be
a Business Day and (b) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago for the conduct of
substantially all of their commercial lending activities.
"Canadian Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Canadian Swing Loans made by the Canadian
Lenders to the Canadian Borrower at the same time and for the same Interest
Period.
"Canadian Borrower" means (a) on the date of this Agreement and until a
Wholly-Owned Subsidiary is designated under the following clause (b), the
Borrower or (b) after the Borrower has designated to the Agent in writing a
Wholly-Owned Subsidiary incorporated under and operating in Canada or one of
its provinces which has executed and delivered to each Canadian Lender a
Canadian Swing Loan Note, such Wholly-Owned Subsidiary. The Borrower shall
remain the Canadian Borrower for any Canadian Advances outstanding on the date
a Wholly-Owned Subsidiary is designated to be the Canadian Borrower.
"Canadian Lenders" means the lending institutions listed on the
signature pages of this Agreement as Canadian Lenders and their respective
successors and assigns. Each Canadian Lender must be exempt from withholding
taxes imposed by Canada on interest payments made by the Canadian Borrower, but
need not be located in Canada.
"Canadian Swing Loan" means each Canadian Lender's Canadian portion of a
Canadian Advance.
"Canadian Swing Loan Note" means a promissory note in substantially the
form of Exhibit F-2, with appropriate insertions, duly executed and delivered
to Agent by the Canadian Borrower for the account of a Canadian Lender and
payable to the order of such Lender, including any amendment, modification,
renewal, or replacement of such promissory note.
"Canadian Swing Loan Share" means, for each Canadian Lender, a
percentage equal to (a) the Dollar amount set forth opposite its name on the
signature pages hereto under the heading "Canadian Swing Loan Amount" or as set
forth in any Notice of Assignment relating to any assignment which has become
effective pursuant to Section 12.3.2 divided by (b) the total Dollar amount of
the Canadian Swing Loan Amount indicated on the signature pages hereto for all
of the Canadian Lenders or as set forth in any Notices of Assignment relating
to any assignment which has become effective pursuant to Section 12.3.2.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition for value of any asset that is classified on
a consolidated balance sheet of the
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Borrower with the Subsidiaries prepared in accordance with Agreement Accounting
Principles as a fixed or capital asset excluding (a) the cost of assets
acquired under Capitalized Lease Obligations, (b) expenditures of insurance
proceeds to rebuild or replace any asset after a casualty loss, and (c) any
expenditures made as all or a portion of the purchase price for Specified
Acquisitions permitted hereby.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Collateral Account" means a special interest bearing cash
collateral account containing cash deposited pursuant to Section 8.1(b) or
8.2(b) to be maintained at the Agent's office in accordance with Section 8.3.
"Change" is defined in Section 3.2.
"Change in Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the SEC under the Securities Exchange Act of 1934) of 20% or more
of the outstanding shares of voting stock of the Borrower or (b) during any
period of 25 consecutive calendar months, commencing on the date of this
Agreement, the ceasing of those individuals (the "Continuing Directors") who
(i) were directors of the Borrower on the first day of each such period or (ii)
subsequently became directors of the Borrower and whose initial election or
initial nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of directors of the
Borrower, to constitute a majority of the board of directors of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed, or
otherwise modified from time to time.
"Commercial Letter of Credit" means, collectively, letters of credit
issued to assure payment for goods or services, bid and performance bond
letters of credit, and advance payment guaranty letters of credit.
"Competitive Bid Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of
the Revolving Lenders to the Borrower at the same time and for the same
Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.8.6.
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<PAGE> 15
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute
Rate Loan, or both, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurocurrency Base Rate offered for a Eurodollar Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurocurrency Base Rate.
"Competitive Bid Note" means a promissory note in substantially the form
of Exhibit A, with appropriate insertions, duly executed and delivered to the
Agent by the Borrower for the account of a Revolving Lender and payable to the
order of such Lender, including any amendment, modification, renewal, or
replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
the form of Exhibit B completed and delivered by a Revolving Lender to the
Agent in accordance with Section 2.8.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit C completed and delivered by the Borrower
to the Agent in accordance with Section 2.8.2.
"consolidated," when used in connection with any calculation, means a
calculation to be determined on a consolidated basis for the Borrower and the
Subsidiaries in accordance with Agreement Accounting Principles.
"Consolidated Person" means, for the taxable year of reference, each
Person which is a member of the affiliated group of the Borrower if
consolidated returns are or shall be filed for such affiliated group for
federal income tax purposes or any combined or unitary group of which the
Borrower is a member for state income tax purposes.
"Contingent Obligation" of a Person means any agreement, undertaking, or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person,
or agrees to maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures in a legally binding manner
any creditor of such other Person against loss.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of the Subsidiaries,
are treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.7.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when
and as said corporate base rate
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changes. The Corporate Base Rate is a reference rate and does not necessarily
represent the lowest or best rate of interest actually charged to any customer.
First Chicago may make commercial loans or other loans at rates of interest at,
above or below the Corporate Base Rate.
"Coverage Ratio" means, for any applicable computation period, the ratio
of (a) EBITDA for such period minus Capital Expenditures for such period to (b)
Interest Expense for such period.
"Default" means an event described in Article VII.
"Documentary Letter of Credit" means a commercial letter of credit
qualifying as a trade-related contingency under 12 CFR Part 3, Appendix A,
Section 3(b)(3) or any successor U.S. Comptroller of the Currency regulation
and issued by an Issuing Bank under the terms of this Agreement.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Dollar Equivalent" shall mean on any day (a) with respect to any amount
denominated in Dollars, such amount and (b) with respect to any amount
denominated in an Alternative Currency, the amount of Dollars into which such
amount may be converted at the spot rate at which Dollars are offered to the
Agent in London for the Alternative Currency in which such amount is
denominated in an amount comparable to such amount at approximately 11:00 a.m.
(London time) on such day.
"EBITDA" means, for any applicable computation period, (a) the
Borrower's and Subsidiaries' Net Income (excluding for the period from June 30,
1995 through June 30, 1997, the effect of pre-tax Restructuring Charges of up
to $40,000,000) on a consolidated basis for such period plus (b) income and
franchise taxes accrued during such period plus (c) Interest Expense accrued
during such period plus (d) amortization and depreciation deducted in
determining Net Income for such period.
"Entitled Person" is defined in Section 2.16.
"Environmental Laws" is defined in Section 5.15.
"Environmental Permits" is defined in Section 5.15.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Advance" means an Advance in Dollars or an Alternative
Currency which bears interest at a Eurocurrency Rate, including without
limitation, Eurodollar Bid Rate Advances, Canadian Advances, and Singaporean
Eurocurrency Rate Advances.
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"Eurocurrency Base Rate" means, with respect to a Eurocurrency Advance
for any specified Eurocurrency Interest Period, a rate of interest per annum
equal to the applicable London interbank offered rate for deposits in Dollars
or in the applicable Alternative Currency as provided by the British Bankers
Association ("BBA") and appearing on Telerate Page 3740 in the case of Canadian
dollars or French francs or Telerate Page 3750 in the case of German marks,
British pounds sterling, or Dollars and, if for any reason such rate is not
available, as such BBA rates may appear on Reuters as the London interbank
offered rate for deposits in Dollars or in the applicable Alternative Currency,
as of 11:00 a.m. (London time) two Business Days prior to the first day of such
Eurocurrency Interest Period, and having a maturity approximately equal to such
Eurocurrency Interest Period. If no London interbank offered rate of such
Eurocurrency Interest Period for Dollars or for the applicable Alternative
Currency then appears on Telerate Page 3740 or 3750 or Reuters, as the case may
be, then the Eurocurrency Base Rate for Dollars or for the applicable
Alternative Currency will be equal to the London interbank offered rate for
deposits in Dollars or in the applicable Alternative Currency maturing
immediately before or immediately after such Eurocurrency Interest Period,
whichever is higher, as determined by the Agent and provided by the BBA from
Telerate Page 3740 or 3750 or Reuters, as the case may be. If Telerate Page
3740 or 3750 or Reuters, as the case may be, is not available for Dollars or
for the applicable Alternative Currency, the applicable Eurocurrency Base Rate
for the relevant Eurocurrency Interest Period for Dollars or for such
Alternative Currency will be the rate determined by the Agent to be the rate at
which First Chicago offers to place deposits in Dollars or in such Alternative
Currency with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Eurocurrency Interest Period, in the approximate amount of First Chicago's
relevant portion of the Eurocurrency Advance and having a maturity
approximately equal to such Eurocurrency Interest Period.
"Eurocurrency Interest Period" means, with respect to a Eurocurrency
Advance or Singaporean Advance, a period of one, two, three, or six months
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on (but exclude) the day which
corresponds numerically to such date one, two, three, or six months thereafter;
provided, however, that if there is no such numerically corresponding day in
such next, second, third, or sixth succeeding month, such Interest Period shall
end on the last Business Day of such next, second, third, or sixth succeeding
month. If an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding Business
Day; provided, however, that if said next succeeding Business Day falls in a
new calendar month, such Interest Period shall end on the immediately preceding
Business Day.
"Eurocurrency Loan" means a Loan denominated in Dollars or an
Alternative Currency which bears interest at the Eurocurrency Rate, including
without limitation, Canadian Swing Loans and Singaporean Eurocurrency Rate
Swing Loans.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Eurocurrency Interest Period, the sum of (a) the Eurocurrency Base
Rate applicable to such Eurocurrency Advance and Eurocurrency Interest Period
plus (b) the Applicable Margin.
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<PAGE> 18
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Eurodollar Bid Rates pursuant to Section 2.8.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan
made by a given Revolving Lender for the relevant Eurocurrency Interest Period,
the sum of (a) the Eurocurrency Base Rate for Dollars and (b) the Competitive
Bid Margin offered by such Revolving Lender and accepted by the Borrower.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which
bears interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Loan which bears interest at the
Eurodollar Bid Rate.
"Existing Credit Agreement," "Existing Revolver," and "Existing Term
Loans" each have the respective meaning set forth in Recital A.
"Expiration Date" means, with respect to any Letter of Credit, the date
on which such Letter of Credit will expire or terminate in accordance with its
terms.
"Facility Termination Date" means March 31, 2002.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10:00
a.m. (Chicago time) on such day on such transactions received by First Chicago
from three Federal funds brokers of recognized standing selected by First
Chicago in its sole discretion.
"Financial Letter of Credit" means a letter of credit which is not a
Commercial Letter of Credit and shall include, without limitation, standby
letters of credit issued to secure financial obligations.
"Financial Statements" is defined in Section 5.5.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Floating Rate Advance" means an Advance in Dollars which bears interest
at the Alternate Base Rate.
"Floating Rate Loan" means a Loan in Dollars which bears interest at the
Alternate Base Rate.
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<PAGE> 19
"Foreign Subsidiary" means a Subsidiary not organized under the laws of
the United States or any state, possession, or territory thereof.
"French Borrower" means Cameron France, S.A., a societe anonyme formed
under the laws of the Republic of France, and its successors and assigns.
"GATT" means the General Agreement on Tariffs and Trade.
"GATT Actuarial Assumptions" mean the actuarial assumptions set forth in
the Retirement Protection Act of 1994 (the "RPA"), which forms a part of GATT,
or any subsequent legislation which amends such provisions of the RPA.
"German Borrower" means Cameron GmbH, a Gesellschaft mit beschrankter
Haftung formed under the laws of the Federal Republic of Germany, and its
successors and assigns.
"Governmental Authority" means any government (foreign or domestic) or
any state or other political subdivision thereof or any governmental body,
agency, authority, department, or commission (including without limitation any
taxing authority or political subdivision) or any instrumentality or officer
thereof (including without limitation any court or tribunal) exercising
executive, legislative, judicial, regulatory, or administrative functions of or
pertaining to government and any corporation, partnership, or other entity
directly or indirectly owned or controlled by or subject to the control of any
of the foregoing.
"Hazardous Materials" is defined in Section 5.15.
"Hedging Obligations" of a Person means all obligations of such Person
under forward sales arrangements, calls, options, or other similar
transactions, including any obligations to purchase or sell any commodity or
security at a future date for a specific price entered into to protect such
Person from fluctuations in prices or rates, including interest rates,
commodity prices, and securities prices.
"Indebtedness" of a Person means such Person's (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade), (c)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (d) obligations which are evidenced by notes or acceptances, (e)
Capitalized Lease Obligations, (f) Contingent Obligations, (g) reimbursement
obligations of such Person in respect of a Commercial Letter of Credit or
Financial Letter of Credit, (h) repurchase obligations or liabilities of such
Person with respect to accounts or notes receivable sold by such Person, and
(i) obligations as lessee or guarantor under Synthetic Leases.
"Interest Expense" means the aggregate of all interest paid or accrued
by the Borrower and the Subsidiaries as determined in accordance with Agreement
Accounting Principles.
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<PAGE> 20
"Interest Period" means a Eurocurrency Interest Period or an Absolute
Rate Interest Period.
"Investment" of a Person means any (a) loan, advance (other than
commission, travel, and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), (b) deposit account , (c) contribution of capital by such Person to any
other Person, or (d) investment in, or purchase or other acquisition of, the
stock, partnership interests, notes, debentures, or other securities of any
other Person made by such Person.
"Investment Grade Country" means a country with a foreign currency
rating issued by S&P of BBB- or better or by Moody's of Baa3 or better.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit D, completed and
delivered by the Agent to the Revolving Lenders in accordance with Section
2.8.3.
"Issuance Request" means a request for the issuance, increase, or
extension of a Letter of Credit given in accordance with Section 2.23.1.
"Issuing Bank" means First Chicago or any other Revolving Lender
acceptable to the Agent which has agreed to issue one or more Letters of Credit
and any successor issuing bank pursuant to Section 10.12.
"Lenders" means the Revolving Lenders, the Canadian Lenders, and the
Singaporean Lenders.
"Lending Office" means, with respect to a Lender or the Agent, any
office, branch, subsidiary, or affiliate of such Lender or the Agent.
"Letter of Credit" means any Documentary Letter of Credit or Standby
Letter of Credit.
"Letter of Credit Documents" means, with respect to any Letter of
Credit, such Letter of Credit and any agreements, documents, and instruments
entered into in connection with or relating to such Letter of Credit.
"Letter of Credit Exposure" means, at any time without duplication, the
sum of (a) the Dollar Equivalent of the aggregate undrawn maximum face amount
of each Letter of Credit at such time and (b) the Dollar Equivalent of the
aggregate unpaid amount of all Reimbursement Obligations at such time.
"Letter of Credit Obligations" means any obligations of the Borrower
under this Agreement in connection with the Letters of Credit.
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<PAGE> 21
"Lien" means any lien (statutory or other), security interest, mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, or
preference, priority, or other security agreement or preferential arrangement
of any kind or nature whatsoever (including, without limitation, the interest
of a vendor or lessor under any conditional sale, Capitalized Lease, or other
title retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance and "Loans" means, with respect to the Lenders, the aggregate of all
Advances.
"Loan Documents" means this Agreement, the Notes, the Parent Guaranty,
the Letter of Credit Documents, and the other documents and agreements
contemplated hereby and executed by any Borrower with or in favor of the Agent
or any Lender.
"Margin Stock" has the meaning assigned to that term under Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, financial condition, performance, or results of operations
of the Borrower and the Subsidiaries taken as a whole, (b) the ability of any
Borrower to perform its obligations under the Loan Documents, or (c) the
validity or enforceability of the Credit Agreement, the Notes, the Parent
Guaranty, or any other material Loan Document or the rights or remedies of the
Agent or the Lenders under the Credit Agreement, the Notes, the Parent
Guaranty, or any of the other material Loan Documents.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto which is a nationally recognized statistical rating organization.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of a Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Available Proceeds" means:
(a) with respect to any Asset Disposition, the sum of cash or readily
marketable cash equivalents received therefrom, whether at the time of such
disposition or subsequent thereto or
(b) with respect to any sale or issuance of any equity securities of
the Borrower or any Subsidiary, cash or readily marketable cash equivalents
received therefrom,
in either case, whether at the time of such disposition, sale, or issuance or
subsequent thereto, net of all legal, title, and recording tax expenses,
commissions, and other fees and all costs and expenses incurred and all
federal, state, local, and other taxes required to be accrued as a liability as
a consequence of such transactions and, in the case of an Asset Disposition,
net of all payments made by the Borrower or any of the Subsidiaries on any
Indebtedness which is secured by such assets pursuant to a permitted Lien upon
or with respect to such assets or which must, by the terms of such
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<PAGE> 22
Lien, in order to obtain a necessary consent to such Asset Disposition, or by
applicable law, be repaid out of the proceeds from such Asset Disposition.
"Net Income" means, for any computation period, with respect to the
Borrower on a consolidated basis with the Subsidiaries (other than any
Subsidiary which is restricted from declaring or paying dividends or otherwise
advancing funds to its parent whether by contract or otherwise), cumulative net
income (loss) earned during such period as determined in accordance with
Agreement Accounting Principles.
"Net Worth" means at any date the Stockholders' Equity of the Borrower
and its consolidated Subsidiaries; provided, however, that any changes in
Stockholders' Equity as a result of changes in the GATT Actuarial Assumptions
and any changes in Stockholders' Equity as a result of foreign currency
translation adjustments, in either case after the date hereof, shall be
excluded when computing Net Worth.
"Notes" means, collectively, the Revolving Credit Notes, the Competitive
Bid Notes, and the Swing Notes; and "Note" means any one of the Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, any Issuing Bank, the Agent, or any
indemnified party hereunder arising under any of the Loan Documents.
"Parent Guaranty" means the Guaranty, dated as of the date hereof, duly
executed and delivered by the Borrower in favor of the Agent and the Lenders,
as the same may be amended, supplemented, or otherwise modified from time to
time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September, and
December.
"Payment Office" shall mean, with respect to the Agent or a Lender, the
payment office of the Agent or such Lender designated for Dollars or for the
applicable Alternative Currency on Schedule 2.9 or such other payment office
specified in writing to the Agent, the Lenders, and the Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust, or other entity or organization,
or any government or political subdivision or any agency, department, or
instrumentality thereof.
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<PAGE> 23
"Plan" means an employee pension benefit plan, as defined in Section
3(2) of ERISA, as to which the Borrower or any member of a Controlled Group may
have any liability.
"Proceeding" is defined in Section 5.15.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased, or operated by such Person.
"pro-rata" means, when used (a) with respect to a provision specific to
a Revolving Lender, and any described aggregate or total amount, an amount
equal to such Revolving Lender's pro-rata share or portion based on its
percentage of the Aggregate Revolving Credit Commitment or if the Aggregate
Revolving Credit Commitment has been terminated, its percentage of the
aggregate principal amount of outstanding Advances and Letter of Credit
Exposure to the aggregate outstanding Advances and Letter of Credit Exposure of
all Revolving Lenders at such time and (b) with respect to a provision specific
to a Lender, and any described aggregate or total amount, an amount equal to
such Lender's pro-rata share or portion based on its percentage of the
aggregate principal amount of outstanding Advances to the aggregate outstanding
Advances of all Lenders at such time.
"Purchase" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or
any of the Subsidiaries (a) acquires any going business or all or substantially
all of the assets of any firm, corporation, or division or line of business
thereof, whether through purchase of assets, merger, or otherwise or (b)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or
voting power) of the outstanding partnership interests of a partnership or
equity interests of another Person.
"Purchasers" is defined in Section 12.3.1.
"Regulation D, G, T, U, and X" means Regulations D, G, T, U, and X of
the Board of Governors of the Federal Reserve System as from time to time in
effect and shall include any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve requirements
applicable to depositary institutions.
"Reimbursement Obligations" has the meaning set forth in Section 2.23.4.
"Release" is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. 39601 et seq.
"Relevant Borrower" means, with respect to any outstanding or requested
Loan, Advance, or Letter of Credit, whichever of the Borrowers is the existing
or proposed primary obligor in respect of such Loan or Advance.
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"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
after the occurrence of such event; provided, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of
the notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means Revolving Lenders in the aggregate having at
least 66-2/3% of the Aggregate Revolving Credit Commitments or, if the
Aggregate Revolving Credit Commitments have been terminated, the Dollar
Equivalent of the aggregate unpaid principal amount of the outstanding
Revolving Credit Loans.
"Restructuring Charges" mean charges taken by the Borrower and the
Subsidiaries not later than June 30, 1997 for the purposes of rationalizing the
cost structure of the Borrower and the Subsidiaries, which charges may include,
but are not limited to, plant shut down costs, severance, outplacement and
other costs.
"Revolving Credit Advance" means an Advance made by the Revolving
Lenders to any of the Borrowers pursuant to Section 2.1.
"Revolving Credit Commitment" means, for each Revolving Lender, the
obligation of such Lender to make Revolving Credit Loans to the Borrowers
pursuant to Section 2.1 in an aggregate amount at any one time outstanding not
exceeding the amount set forth opposite its name under the heading "Revolving
Credit Commitment" on the signature page hereto or as set forth in any Notice
of Assignment relating to any assignment which has become effective pursuant to
Section 12.3.2, as such amount may be modified or reduced from time to time
pursuant to the terms of this Agreement.
"Revolving Credit Loan" means, with respect to a Revolving Lender, such
Lender's portion of all Revolving Credit Advances.
"Revolving Credit Note" means a promissory note in substantially the
form of Exhibit E, with appropriate insertions, duly executed and delivered to
the Agent by a Borrower and payable to the order of a Revolving Lender in the
amount of its Revolving Credit Commitment, including any amendment,
modification, renewal, or replacement of such promissory note.
"Revolving Lenders" means the lending institutions listed on the
signature pages of this Agreement as Revolving Lenders and their respective
successors and assigns.
"S&P" means Standard & Poor's Ratings Service, a division of the McGraw-
Hill Companies, Inc., and any successor thereto which is a nationally
recognized statistical rating organization.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
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"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Debt" means the Borrower's senior, unsecured, non-credit
enhanced, long-term indebtedness for borrowed money.
"Singaporean Advance" means a Singaporean Rate Advance or a Singaporean
Eurocurrency Rate Advance.
"Singaporean Borrower" means Cooper Cameron (Singapore) Pte. Ltd., a
private limited company formed under the laws of the Republic of Singapore.
"Singaporean Eurocurrency Rate Advance" means a borrowing hereunder
consisting of the aggregate amount of the several Singaporean Swing Loans made
by the Singaporean Lenders in Dollars to the Singaporean Borrower at the same
time bearing interest at the Eurocurrency Rate for Dollars and for the same
Eurocurrency Interest Period.
"Singaporean Eurocurrency Rate Swing Loan" means each Singaporean
Lender's portion of a Singaporean Eurocurrency Rate Advance.
"Singaporean Lenders" means the lending institutions listed on the
signature pages of this Agreement as Singaporean Lenders and their respective
successors and assigns. Each Singaporean Lender must be exempt from
withholding taxes imposed by the Republic of Singapore on interest payments
made by the Singaporean Borrower, but need not be located in Singapore.
"Singaporean Rate" means, with respect to a Singaporean Rate Swing Loan
for any specified Eurocurrency Interest Period, a rate of interest per annum
equal to the sum of (a) the rate offered by the Agent in the Singapore
interbank market at 11:00 a.m. (Singapore time) two Business Days prior to the
borrowing for deposits of Singapore dollars in the approximate amount of, and
for a maturity corresponding to the Singaporean Rate Swing Loan plus (b) the
Applicable Margin.
"Singaporean Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Singaporean Swing Loans made by the Singaporean
Lenders in Singapore dollars to the Singaporean Borrower at the same time
bearing interest at the Singaporean Rate and for the same Eurocurrency Interest
Period.
"Singaporean Rate Swing Loan" means each Singaporean Lender's
Singaporean Swing Loan Share of a Singaporean Rate Advance.
"Singaporean Swing Loan" means a Singaporean Eurocurrency Rate Swing
Loan or a Singaporean Rate Swing Loan.
"Singaporean Swing Loan Note" means a promissory note in substantially
the form of Exhibit F-1, with appropriate insertions, duly executed and
delivered to the Agent by the
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Singaporean Borrower for the account of a Singaporean Lender and payable to the
order of such Lender, including any amendment, modification, renewal, or
replacement of such promissory note.
"Singaporean Swing Loan Share" means, for each Singaporean Lender, a
percentage equal to (a) the Dollar amount set forth opposite its name on the
signature pages hereto under the heading "Singaporean Swing Loan Amount" or as
set forth in any Notice of Assignment relating to any assignment which has
become effective pursuant to Section 12.3.2 divided by (b) the total Dollar
amount of the Singaporean Swing Loan Amount indicated on the signature pages
hereto for all of the Singaporean Lenders or as set forth in any Notices of
Assignment relating to any assignment which has become effective pursuant to
Section 12.3.2.
"Single Employer Plan" means a Plan subject to Title IV of ERISA
maintained by the Borrower or any member of a Controlled Group for employees of
the Borrower or any member of a Controlled Group, other than a Multiemployer
Plan.
"Specified Acquisition" means any Purchase of or Investment in a Person
(other than a Subsidiary), or the assets thereof, in substantially the same or
related fields of enterprise in which the Borrower or the Subsidiaries are
presently engaged; provided that Investments made in Wholly-Owned Subsidiaries
to fund a Specified Acquisition by such Wholly-Owned Subsidiary shall also be
deemed a "Specified Acquisition."
"Standby Letter of Credit" means a letter of credit that is not a
Documentary Letter of Credit that is issued by an Issuing Bank under the terms
of this Agreement.
"Stockholders' Equity" means aggregate stockholders' equity of the
Borrower and its consolidated Subsidiaries determined in accordance with
Agreement Accounting Principles.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries
or (b) any partnership, association, joint venture, limited liability company,
or similar business organization more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and the Subsidiaries, Property which represents more than the greater
of (a) $300,000,000 and (b) 20% of the consolidated assets of the Borrower and
the Subsidiaries, as would be shown in the consolidated financial statements of
the Borrower and the Subsidiaries as at the end of the quarter next preceding
the date on which such determination is made.
"Swing Advance" means either a Canadian Advance or a Singaporean
Advance.
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"Swing Loan Lender" means a Canadian Swing Loan Lender or a Singaporean
Swing Loan Lender.
"Swing Loan Request" means a notice of request for a Swing Loan given
under Section 2.2(d) or 2.3(d).
"Swing Loans" means Canadian Swing Loans and Singaporean Swing Loans.
"Swing Notes" means the Canadian Swing Loan Notes and the Singaporean
Swing Loan Notes.
"Synthetic Lease" means (a) any lease that is treated as an operating
lease under Agreement Accounting Principles but for which the Borrower or any
of the Subsidiaries is viewed as the owner of the leased Property under the
Code and (b) guaranties by the Borrower or any of the Subsidiaries of the
obligations of the lessor of such leased Property which are secured by the
payments due under the lease of such Property.
"Termination Event" means, with respect to a Plan which is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower
or any other member of a Controlled Group from such Plan during a plan year in
which the Borrower or any other member of a Controlled Group was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4068(f) of ERISA, (c) the termination of such Plan, the filing of a
notice of intent to terminate such Plan or the treatment of an amendment of
such Plan as a termination under Section 4041 of ERISA, (d) the institution by
the PBGC of proceedings to terminate such Plan, or (e) any event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or appointment of a trustee to administer, such Plan.
"Total Capitalization" means, at any time, the sum of Total Debt and
Stockholders' Equity at such time.
"Total Debt" means, at any time and without duplication, (a) that part
of the consolidated Indebtedness of the Borrower and the Subsidiaries at such
time which would be reflected on a balance sheet prepared in accordance with
Agreement Accounting Principles plus (b) an amount (not less than zero) equal
to (i) the aggregate of (A) the Dollar Equivalent of the face amount of
Financial Letters of Credit issued for the account of the Borrower or any of
the Subsidiaries and (B) Contingent Obligations of the Borrower and the
Subsidiaries in respect of a Person other than the Borrower or a Subsidiary
minus (ii) $50,000,000 plus (c) the aggregate Attributable Debt of the Borrower
and the Subsidiaries as lessor or guarantor under Synthetic Leases plus (d) the
aggregate Attributable Debt of the Borrower and the Subsidiaries as seller,
originator, or guarantor under accounts or notes receivable financing or
securitization programs.
"Transferee" is defined in Section 12.4.
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"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance, Eurocurrency Advance, Singaporean Advance bearing interest at the
Singaporean Rate, or Absolute Rate Advance.
"U.K. Borrower" means Cooper Cameron (U.K.) Limited, a company formed
under the laws of the United Kingdom, and its successors and assigns.
"Unfunded Liability" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under a Single Employer Plan
exceeds the fair market value of assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans using the
GATT Actuarial Assumptions.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person or (b) any partnership, association, joint venture,
or similar business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
The foregoing definitions (other than the definitions of "Borrower" and
"Borrowers") shall be equally applicable to both the singular and plural forms
of the defined terms.
ARTICLE II
THE CREDITS
2.1 Revolving Credit Advances.
(a) From and including the date hereof to but excluding the Facility
Termination Date, each Revolving Lender severally (and not jointly) agrees, on
the terms and conditions set forth in this Agreement, to make Revolving Credit
Advances in Dollars or one or more of the Alternative Currencies to the
Borrowers from time to time in amounts, not to exceed in the aggregate at any
one time outstanding (i) the amount of its Revolving Credit Commitment existing
at such time, minus (ii) (A) the Dollar Equivalent of the aggregate principal
amount of the outstanding Revolving Credit Advances of such Lender at such time
and (B) the amount of such Lender's pro-rata share of the Letter of Credit
Exposure at such time; provided, however, that in no event may the Aggregate
Exposure Amount exceed the Aggregate Revolving Credit Commitment. The initial
Revolving Credit Advances shall be in an amount sufficient to refinance in full
the outstanding principal amount of the Existing Term Loans and the Existing
Revolver. Subject to the terms of this
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Agreement, the Borrowers may borrow, repay, and reborrow Revolving Credit
Advances at any time prior to the Facility Termination Date.
(b) The Borrower hereby agrees that if at any time the Aggregate
Exposure Amount exceeds the Aggregate Revolving Credit Commitment, the Borrower
shall repay or cause to be repaid the then outstanding Revolving Credit Loans
in such amount as may be necessary to eliminate such excess.
(c) The obligation of each Borrower to pay the principal of, and
interest on, its Revolving Credit Loans shall be evidenced by a Revolving
Credit Note executed by such Borrower. Although the Revolving Credit Notes
shall be dated the date of the initial Revolving Credit Advance, interest in
respect thereof shall be payable only for the periods during which the
Revolving Credit Loans evidenced thereby are outstanding and, although the
stated amount of each Revolving Credit Note shall be equal to the applicable
Revolving Lender's Revolving Credit Commitment, each Revolving Credit Note
shall be enforceable, with respect to the Relevant Borrower's obligation to pay
the principal amount thereof, only to the extent of the unpaid principal amount
of the Revolving Credit Loan to such Relevant Borrower at the time evidenced
thereby.
(d) All Revolving Credit Advances and Revolving Credit Loans shall
mature, and the principal amount thereof and the unpaid accrued interest
thereon shall be due and payable, on the Facility Termination Date.
2.2 Singaporean Swing Loan.
(a) From and including the date hereof to but excluding the Facility
Termination Date, each Singaporean Lender may, in its sole discretion, on the
terms and conditions set forth in this Agreement, make Singaporean Advances
from time to time in amounts not to exceed such Singaporean Lender's
Singaporean Swing Loan Share of the Dollar Equivalent of $20,000,000 in the
aggregate at any one time outstanding; provided that the Aggregate Exposure
Amount shall never exceed the Aggregate Revolving Credit Commitment. Each
Singaporean Eurocurrency Rate Loan shall be in Dollars, and each Singaporean
Rate Loan shall be in Singapore dollars. Subject to the terms of this
Agreement, the Singaporean Borrower may borrow, repay, and reborrow Singaporean
Advances at any time prior to the Facility Termination Date.
(b) The obligation of the Singaporean Borrower to pay the principal
of, and interest on, the Singaporean Swing Loans shall be evidenced by the
Singaporean Swing Loan Notes. Although the Singaporean Swing Loan Notes shall
be dated the date of the initial Singaporean Advance, interest in respect
thereof shall be payable only for the periods during which the Swing Loans
evidenced thereby are outstanding and, although the stated amount of each
Singaporean Swing Loan Note shall be equal to $20,000,000, each Singaporean
Swing Loan Note shall be enforceable, with respect to the Singaporean
Borrower's obligation to pay the principal amount thereof, only to the extent
of the unpaid principal amount of the Singaporean Swing Loan to the Singaporean
Borrower at the time evidenced thereby.
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(c) All Singaporean Advances and Singaporean Swing Loans shall
mature, and the principal amount thereof and the unpaid accrued interest
thereon shall be due and payable on the Facility Termination Date and, subject
to Section 2.7(c), on the last day of each Interest Period therefor.
(d) The Singaporean Borrower shall give the Agent a Swing Loan
Request not later than 10:00 a.m. (Chicago time) at least four Business Days
before the Borrowing Date. The Swing Loan Request shall specify (i) the
Borrowing Date, which shall be a Business Day, of such Advance; (ii) the
account to which such Advance is to be funded; (iii) the aggregate principal
amount of such Advance; (iv) the Eurocurrency Interest Period applicable
thereto, and (v) the Alternative Currency for Singaporean Swing Loans in which
such Advance is to be made.
(e) Notwithstanding anything in this Agreement to the contrary, it is
expressly agreed that no Singaporean Lender shall have an obligation whatsoever
to make any Singaporean Swing Loan, the making of any Singaporean Swing Loan to
be in the sole discretion of each Singaporean Lender determined at the time of
any request for Singaporean Advances by the Singaporean Borrower. Without
limiting the foregoing sentence, each Singaporean Lender agrees to give the
Borrower and the Agent written notice of its decision to no longer make
Singaporean Swing Loans.
(f) The Borrowers and the Lenders agree that the Agent may request
each Revolving Lender to pay, and upon such a request made in accordance with
the following sentence, each Revolving Lender shall pay to the Agent for the
ratable benefit of each Singaporean Lender, such Revolving Lender's pro-rata
share of all outstanding Singaporean Swing Loans as a Revolving Credit Advance
under such Lender's Revolving Credit Commitment upon the occurrence of a
Default. In connection with any Advance to be made as contemplated by the
foregoing sentence, the Agent shall give the Revolving Lenders notice of any
such request no later than 10:00 a.m. (Chicago time) to make a Floating Rate
Advance to the Singaporean Borrower in the amount of its pro-rata share of the
Dollar Equivalent of the outstanding Singaporean Swing Loans by noon (Chicago
time) on the date the proposed Advances are to be made. All Advances made
pursuant to each request made by the Agent pursuant to the foregoing sentence
shall be considered to be a Revolving Credit Advance, and the Singaporean
Borrower hereby irrevocably instructs the Agent to apply the proceeds of such
Advances to the prepayment of the outstanding Singaporean Swing Loans. If the
Required Lenders determine that a fundamental change has occurred in the
foreign exchange or interbank markets with respect to the applicable
Alternative Currency (including, without limitation, changes in national or
international financial, political, or economic conditions or currency exchange
rates or exchange controls), then each Revolving Lender shall have been deemed
to have purchased from the Singaporean Lenders a participation in the related
Singaporean Swing Loans equal to such Revolving Lender's pro-rata share and
such sale and purchase shall otherwise be in accordance with the terms of this
Agreement. The Agent shall promptly notify each such participant Revolving
Lender of each Singaporean Swing Loan and the Dollar Equivalent of such
Lender's participation in such Singaporean Swing Loan.
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2.3 Canadian Swing Loan.
(a) From and including the date hereof to but excluding the Facility
Termination Date, each Canadian Lender may, in its sole discretion, on the
terms and conditions set forth in this Agreement, make Canadian Advances from
time to time in amounts, not to exceed such Canadian Lender's Canadian Swing
Loan Share of the Dollar Equivalent of $20,000,000 in the aggregate at any one
time outstanding; provided that the Aggregate Exposure Amount shall never
exceed the Aggregate Revolving Credit Commitment. Subject to the terms of this
Agreement, the Canadian Borrower may borrow, repay, and reborrow Canadian Swing
Advances at any time prior to the Facility Termination Date.
(b) The obligation of the Canadian Borrower to pay the principal of,
and interest on, the Canadian Swing Loans shall be evidenced by the Canadian
Swing Loan Notes. Although the Canadian Swing Loan Notes shall be dated the
date of the initial Canadian Advance, interest in respect thereof shall be
payable only for the periods during which the Swing Loans evidenced thereby are
outstanding and, although the stated amount of Canadian Swing Loan Note shall
be equal to $20,000,000, each Canadian Swing Loan Note shall be enforceable,
with respect to the Canadian Borrower's obligation to pay the principal amount
thereof, only to the extent of the unpaid principal amount of the Canadian
Swing Loans to the Canadian Borrower at the time evidenced thereby.
(c) All Canadian Advances and Canadian Swing Loans shall mature, and
the principal amount thereof and the unpaid accrued interest thereon shall be
due and payable on the Facility Termination Date and, subject to Section
2.7(c), on the last day of the Interest Period therefor.
(d) The Canadian Borrower shall give the Agent a Swing Loan Request
not later than 10:00 a.m. (Chicago time) at least four Business Days before the
Borrowing Date. The Swing Loan Request shall specify (i) the Borrowing Date,
which shall be a Business Day, of such Advance; (ii) the account to which such
Advance is to be funded; (iii) the aggregate principal amount of such Advance;
and (iv) the Eurocurrency Interest Period applicable thereto.
(e) Notwithstanding anything in this Agreement to the contrary, it is
expressly agreed that no Canadian Lender shall have an obligation whatsoever to
make any Canadian Swing Loan, the making of any Canadian Swing Loan to be in
the sole discretion of each Canadian Lender determined at the time of any
request for Canadian Advances by the Canadian Borrower. Without limiting the
foregoing sentence, each Canadian Lender agrees to give the Borrower and the
Agent written notice of its decision to no longer make Canadian Swing Loans.
(f) The Borrowers and the Lenders agree that the Agent may request
each Revolving Lender to pay, and upon such a request made in accordance with
the following sentence, each Revolving Lender shall pay to the Agent for the
ratable benefit of each Canadian Lender, such Revolving Lender's pro-rata share
of all outstanding Canadian Swing Loans as a Revolving Credit Advance under
such Lender's Revolving Credit Commitment upon the occurrence of a Default. In
connection with any Advance to be made as contemplated by the foregoing
sentence, the Agent shall give the Revolving Lenders notice of any such request
no later than 10:00 a.m. (Chicago time) to
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make a Floating Rate Advance to the Borrower in the amount of its pro-rata
share of the Dollar Equivalent of the outstanding Canadian Swing Loans by noon
(Chicago time) on the date the proposed Advances are to be made. All Advances
made pursuant to each request made by the Agent pursuant to the foregoing
sentence shall be considered to be a Revolving Credit Advance, and the Borrower
hereby irrevocably instructs the Agent to apply the proceeds of such Advances
to the prepayment of the outstanding Canadian Swing Loans. If the Required
Lenders determine that a fundamental change has occurred in the foreign
exchange or interbank markets with respect to Canadian dollars (including,
without limitation, changes in national or international financial, political,
or economic conditions or currency exchange rates or exchange controls), then
each Revolving Lender shall have been deemed to have purchased from the
Canadian Lenders a participation in the related Canadian Swing Loans equal to
such Revolving Lender's pro-rata share and such sale and purchase shall
otherwise be in accordance with the terms of this Agreement. The Agent shall
promptly notify each such participant Revolving Lender of each Canadian Swing
Loan and the Dollar Equivalent of such Lender's participation in such Canadian
Swing Loan.
2.4 Ratable Loans. Each Revolving Credit Advance hereunder shall
consist of Revolving Credit Loans made from the several Revolving Lenders
ratably in proportion to the ratio that their respective Revolving Credit
Commitments bear to the Aggregate Revolving Credit Commitment. Each
Singaporean Swing Loan shall consist of Singaporean Swing Loans made from the
several Singaporean Lenders ratably in proportion to their respective
Singaporean Swing Loan Shares. Each Canadian Swing Loan shall consist of
Canadian Swing Loans made from the several Canadian Lenders ratably in
proportion to their respective Canadian Swing Loan Shares.
2.5 Types of Revolving Credit Advances. The Revolving Credit
Advances may be Floating Rate Advances or Eurocurrency Advances, or a
combination thereof, selected by the Borrower in accordance with Sections 2.6
and 2.7; provided, that at the time of the making or continuation of any
Eurocurrency Advance (other than a Singaporean Advance or a Canadian Advance)
or the conversion of any Floating Rate Advance to a Eurocurrency Advance, the
Dollar Equivalent of the aggregate Eurocurrency Advances (other than
Singaporean Advances and Canadian Advances) denominated in Alternative
Currencies (after giving effect to such making, conversion, or continuation)
and of the aggregate Letter of Credit Exposure denominated in Alternative
Currencies shall not exceed the Alternative Currency Sublimit. No Advance may
mature after, or have a Eurocurrency Interest Period which extends beyond, the
Facility Termination Date.
2.6 Method of Selecting Types and Interest Periods for New Revolving
Credit Advances. Subject to the terms of Section 2.5, the Borrower shall
select the Type of Advance and, in the case of each Eurocurrency Advance that
is a Revolving Credit Advance, the Interest Period and currency applicable to
each Revolving Credit Advance from time to time. The Borrower shall give the
Agent irrevocable notice (a "Borrowing Notice") not later than 10:00 a.m.
(Chicago time) on the Borrowing Date of each Floating Rate Advance and at least
three Business Days before the Borrowing Date for each Eurocurrency Advance
that is a Revolving Credit Advance. Notwithstanding the foregoing, a Borrowing
Notice for a Floating Rate Advance may be given not later than 30 minutes after
the time which the Borrower is required to reject one or more Bids offered in
connection with an Absolute Rate Auction pursuant to Section 2.8.6 and a
Borrowing Notice for
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a Eurocurrency Advance that is a Revolving Credit Advance may be given not
later than 30 minutes after the time the Borrower is required to reject one or
more Bids offered in connection with a Eurodollar Auction pursuant to Section
2.8.6. A Borrowing Notice shall specify:
(a) the Borrowing Date, which shall be a Business Day, of such
Advance;
(b) the Relevant Borrower which is to receive such Advance and the
account to which such Advance is to be funded;
(c) the aggregate principal amount of such Advance;
(d) the Type of Advance selected; and
(e) in the case of each Eurocurrency Advance that is a Revolving
Credit Advance, the Eurocurrency Interest Period applicable thereto and the
currency in which such Advance is to be made.
2.7 Conversion and Continuation of Outstanding Advances.
(a) Floating Rate Advances shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are repaid or converted into
Eurocurrency Advances. Each Eurocurrency Advance in Dollars (other than a
Singaporean Eurocurrency Rate Advance) shall continue as a Eurocurrency Advance
in Dollars until the end of the then applicable Interest Period therefor, at
which time such Eurocurrency Advance shall be automatically converted into a
Floating Rate Advance unless repaid or unless the Borrower shall have given the
Agent a notice (a "Conversion/Continuation Notice"), which shall be
irrevocable, requesting that, at the end of such Interest Period, such
Eurocurrency Advance either continue as a Eurocurrency Advance for the same or
another Interest Period or be converted into a Floating Rate Advance.
(b) Each Eurocurrency Advance in an Alternative Currency shall
continue as such until the end of the then applicable Eurocurrency Interest
Period therefor, at which time such Advance shall, unless repaid, automatically
be deemed to be continued as a Eurocurrency Advance in the same amount and in
the same currency with an Interest Period of one month (commencing on the last
day of the expiring Interest Period) unless the Borrower shall have given the
Agent a Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Eurocurrency Advance continue as a Eurocurrency Advance
in the same currency for the same or another Interest Period.
(c) Each Canadian Swing Loan and each Singaporean Swing Loan shall
continue as such until the end of the then applicable Eurocurrency Interest
Period therefor, at which time such Swing Loan shall, unless repaid or the
Canadian Lender or the Singaporean Lender has given the Borrower and the Agent
written notice under Section 2.2(e) or 2.3(e), as applicable, that it will not
continue making Canadian Swing Loans or Singaporean Swing Loans, as the case
may be, automatically be deemed to be continued as a Swing Loan in the same
amount and in the same
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currency with an Interest Period of one month (commencing on the last day of
the expiring Interest Period) unless the Borrower shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Swing Loan continue for the same or another Interest Period and in
the same currency.
(d) The Borrower shall give the Agent a Conversion/Continuation
Notice, which shall be irrevocable, with respect to each conversion of a
Revolving Credit Advance or continuation of a Eurocurrency Advance or a
Singaporean Rate Advance (as permitted by paragraphs (a), (b), and (c) above)
not later than 10:00 a.m. (Chicago time) on the date of such conversion, in the
case of a conversion into a Floating Rate Advance, or at least three Business
Days in the case of Revolving Credit Advances and four Business Days in the
case of Swing Advances prior to the date of the requested conversion or
continuation, in the case of a conversion into or continuation of a
Eurocurrency Advance or a Singaporean Rate Advance, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the Relevant Borrower with respect to such Advance;
(iii) the aggregate amount, currency, and Type of the Advance
which is to be converted or continued; and
(iv) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a conversion
into or continuation of a Eurocurrency Advance or a Singaporean Rate
Advance, the duration of the Interest Period applicable thereto.
Notwithstanding the provisions of paragraphs (a), (b), and (c) above, no
Eurocurrency Advance shall be continued as or converted into a Eurocurrency
Advance for a new Interest Period, no Canadian Swing Loan that is part of a
Canadian Advance shall be continued into a Canadian Swing Loan for a new
Interest Period, and no Singaporean Swing Loan that is part of a Singaporean
Rate Advance shall be continued into a Singaporean Loan for a new Interest
Period if the Aggregate Exposure Amount (determined as of the date of any
proposed conversion or continuation thereof) would exceed the Aggregate
Revolving Credit Commitment. The Relevant Borrower shall reimburse the Agent
on demand for any costs of currency exchange incurred by the Agent resulting
from the conversion pursuant to this Section 2.7 of Eurocurrency Advances
payable in an Alternative Currency to Floating Rate Advances.
2.8 Competitive Bid Advances.
2.8.1 Competitive Bid Option. In addition to Advances pursuant to
Sections 2.1, 2.2, and 2.3, but subject to the terms and conditions of this
Agreement (including, without limitation, the limitation set forth in Section
2.1(a) as to the maximum aggregate principal amount of all Advances and Letters
of Credit hereunder), at any time prior to the Facility Termination Date the
Borrower
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may, as set forth in this Section 2.8, request the Revolving Lenders to make
offers to make Competitive Bid Advances to the Borrower. Each Revolving Lender
may, but shall have no obligation to, make such offers and the Borrower may,
but shall have no obligation to, accept any such offers in the manner set forth
in this Section 2.8. The Borrower's obligation to pay the principal of, and
interest on, the Competitive Bid Advances shall be evidenced by the Competitive
Bid Notes. Although the Competitive Bid Notes shall be dated the date of the
initial Advance, interest in respect thereof shall be payable only for the
periods during which the Loans evidenced thereby are outstanding. All
outstanding Competitive Bid Loans and any unpaid accrued interest thereon shall
be due and payable in full by the Borrower on the Facility Termination Date.
2.8.2 Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.8, it shall
transmit to the Agent by telecopy a Competitive Bid Quote Request so as to be
received no later than (a) 10:00 a.m. (Chicago time) at least four Business
Days prior to the Borrowing Date proposed therein, in the case of a Eurodollar
Auction or (b) 10:00 a.m. (Chicago time) at least one Business Day prior to the
Borrowing Date proposed therein, in the case of an Absolute Rate Auction
specifying:
(i) the proposed Borrowing Date, which shall be a Business
Day, for the proposed Competitive Bid Advance;
(ii) the aggregate principal amount of such Competitive Bid
Advance;
(iii) whether the Competitive Bid Quotes requested are to set
forth a Eurodollar Bid Rate, an Absolute Rate, or both; and
(iv) the Interest Period applicable thereto (which may not end
after the Facility Termination Date).
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No Competitive Bid
Quote Request shall be given within five Business Days (or such other number of
days as the Borrower and the Agent may agree) of any other Competitive Bid
Quote Request. A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit C shall be rejected, and the Agent shall
promptly notify the Borrower of such rejection by telecopy.
2.8.3 Invitation for Competitive Bid Quotes. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.8.2,
the Agent shall send to each of the Revolving Lenders by telex or telecopy an
Invitation for Competitive Bid Quotes, which shall constitute an Invitation by
the Borrower to each Revolving Lender to submit Competitive Bid Quotes offering
to make the Competitive Bid Loans to which such Competitive Bid Quote Request
relates in accordance with this Section 2.8.
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2.8.4 Submission and Contents of Competitive Bid Quotes.
(a) Each Revolving Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make Competitive Bid
Loans in response to any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the requirements of this Section 2.8.4
and must be submitted to the Agent by telex or telecopy at its offices
specified in or pursuant to Article XIII not later than (i) 9:00 a.m. (Chicago
time) at least three Business Days prior to the proposed Borrowing Date, in the
case of a Eurodollar Auction or (ii) 9:00 a.m. (Chicago time) on the proposed
Borrowing Date, in the case of an Absolute Rate Auction (or, in either case
upon reasonable prior notice to the Revolving Lenders, such other time and date
as the Borrower and the Agent may agree); provided that Competitive Bid Quotes
submitted by First Chicago may only be submitted if the Agent or First Chicago
notifies the Borrower of the terms of the offer or offers contained therein not
later than 15 minutes prior to the latest time at which the relevant
Competitive Bid Quotes must be submitted by the other Revolving Lenders.
Subject to Articles IV and VIII, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
(b) Each Competitive Bid Quote shall specify:
(i) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid Quotes;
(ii) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (A) may be greater
than, less than or equal to the Revolving Credit Commitment of the
quoting Revolving Lender, (B) must be at least $10,000,000 and an
integral multiple of $1,000,000, and (C) may not exceed the principal
amount of Competitive Bid Loans for which offers were requested;
(iii) in the case of a Eurodollar Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan;
(iv) the minimum amount, if any, of the Competitive Bid Loan
which may be accepted by the Borrower;
(v) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan; and
(vi) the identity of the quoting Revolving Lender.
(c) The Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of Exhibit B or does not
specify all of the information required by Section 2.8.4(b);
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(ii) contains qualifying, conditional, or similar language,
other than any such language contained in Exhibit B;
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 2.8.4(a).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.8.4(c), then the Agent shall promptly notify the relevant Revolving Lender of
such rejection.
2.8.5 Notice to Borrower. The Agent shall promptly notify the Borrower
of the terms (a) of any Competitive Bid Quote submitted by a Revolving Lender
that is in accordance with Section 2.8.4 and (b) of any Competitive Bid Quote
that amends, modifies, or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded
by the Agent unless such subsequent Competitive Bid Quote specifically states
that it is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Agent's notice to the Borrower shall specify the
aggregate principal amount of Competitive Bid Loans for which offers have been
received for each Interest Period specified in the related Competitive Bid
Quote Request and the respective principal amounts and Eurodollar Bid Rates or
Absolute Rates, as the case may be, so offered.
2.8.6 Acceptance and Notice by Borrower. Not later than (a) 10:00 a.m.
(Chicago time) at least three Business Days prior to the proposed Borrowing
Date, in the case of a Eurodollar Auction or (b) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Revolving Lenders, such other
time and date as the Borrower and the Agent may agree), the Borrower shall
notify the Agent of its acceptance or rejection of the offers so notified to it
pursuant to Section 2.8.5; provided, however, that the failure by the Borrower
to give such notice to the Agent shall be deemed to be a rejection of all such
offers. In the case of acceptance, such notice (a "Competitive Bid Borrowing
Notice") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may accept any Competitive Bid
Quote in whole or in part (subject to the terms of Section 2.8.4(b)(iv));
provided that:
(i) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(ii) acceptance of offers may only be made on the basis of
ascending Eurodollar Bid Rates or Absolute Rates, as the case may be,
and
(iii) the Borrower may not accept any offer that is described in
Section 2.8.4(c) or that otherwise fails to comply with the requirements
of this Agreement.
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2.8.7 Allocation by Agent. If offers are made by two or more Revolving
Lenders with the same Eurodollar Bid Rates or Absolute Rates, as the case may
be, for a greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the principal amount
of Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers; provided, however,
that no Revolving Lender shall be allocated a portion of any Competitive Bid
Advance which is less than the minimum amount which such Lender has indicated
that it is willing to accept. Allocations by the Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of manifest error.
The Agent shall promptly, but in any event on the same Business Day, notify
each Revolving Lender of its receipt of a Competitive Bid Borrowing Notice and
the aggregate principal amount of such Competitive Bid Advance allocated to
each participating Lender.
2.9 Availability of Funds. Not later than 11:00 a.m. (time at the
Payment Office for Dollars or the Alternative Currency, as applicable) on the
Borrowing Date thereof, each Lender shall make available its Loan, in funds
immediately available in Dollars or in the Alternative Currency, to the Agent
at its Payment Office applicable to Dollars or such Alternative Currency
specified in Schedule 2.9 or at any other Lending Office or Payment Office of
the Agent specified in writing by the Agent to the Lenders. The Agent will make
the funds so received from the Lenders available to the Relevant Borrower to
the account specified in the Borrowing Notice, Competitive Bid Borrowing
Notice, or Swing Loan Request, as the case may be, promptly following the
receipt of the related Loan from each Lender.
2.10 Fees; Reductions in Aggregate Revolving Credit Commitment.
(a) The Borrower agrees to pay to the Agent for the account of each
Revolving Lender a facility fee equal to the Applicable Margin per annum on
such Lender's Revolving Credit Commitment from the date hereof to and including
the Facility Termination Date, payable on each Payment Date hereafter and on
the Facility Termination Date. All accrued facility fees shall be payable on
the effective date of any termination of the obligations of the Revolving
Lenders to make Loans hereunder.
(b) The Borrower shall pay to the Agent the fees in the amounts and
at the times separately agreed to between the Agent and the Borrower.
(c) The Borrower agrees to pay (i) subject to the next sentence, to
the Agent for the pro-rata benefit of the Revolving Lenders, a fee for each
Letter of Credit equal to the Applicable Margin per annum of the face amount of
such Letter of Credit, (ii) to the Agent on behalf of each Issuing Bank, a fee
for each Documentary Letter of Credit issued by such Issuing Bank equal to five
Basis Points per annum of the face amount of such Documentary Letter of Credit,
and (iii) to the Agent on behalf of each Issuing Bank, a fee for each Standby
Letter of Credit issued by such Issuing Bank equal to 10 Basis Points per annum
of the face amount of such Standby Letter of Credit. If the Revolving Credit
Commitment is terminated for any reason, the letter of credit fee under the
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foregoing clause (i) for Standby Letters of Credit shall be 65 Basis Points per
annum and for Documentary Letters of Credit shall be 35 Basis Points per annum
beginning on the date of such termination. Each such fee shall be based on the
maximum amount available to be drawn under such Letter of Credit from time-to-
time from the date of issuance of the Letter of Credit until its Expiration
Date and payable quarterly in arrears on each Payment Date of each year for the
period during which such Letter of Credit or any portion thereof was
outstanding. The Borrower also agrees to pay each Issuing Bank upon the
issuance, increase, amendment, or extension of a Letter of Credit issued by
such Issuing Bank all customary and reasonable fees published by such Issuing
Bank and payable in connection with the issuance, increase, amendment, or
extension of a letter of credit.
(d) The Borrower may permanently reduce the Aggregate Revolving
Credit Commitment in whole, or in part ratably among the Revolving Lenders in a
minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000
in excess thereof, upon at least three Business Days' written notice to the
Agent, which notice shall specify the amount of any such reduction; provided,
however, that the amount of the Aggregate Revolving Credit Commitment may not
be reduced below the Aggregate Exposure Amount.
2.11 Minimum Amount of Each Advance. Each Eurocurrency Advance shall
be in the minimum amount having a Dollar Equivalent of not less than
$3,000,000, and each Floating Rate Advance shall be in the minimum amount of
$3,000,000; provided, however, that (a) any Floating Rate Advance may be in the
amount of the unused Aggregate Revolving Credit Commitment and (b) in no event
shall more than 10 Eurocurrency Advances be permitted to be outstanding at any
time.
2.12 Optional Principal Payments. The Borrowers may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances, or, in
a minimum aggregate amount of $3,000,000, any portion of the outstanding
Floating Rate Advances upon one Business Day's prior notice to the Agent.
Subject to Section 3.5 and upon two Business Days' notice, a Eurocurrency
Advance or a Singaporean Swing Loan bearing interest at the Singaporean Rate
may be paid prior to the last day of the applicable Interest Period in a
minimum amount of the Dollar Equivalent of $3,000,000. The Borrower may not
voluntarily prepay any Competitive Bid Loan.
2.13 Mandatory Payments. If at any time the Total Debt to Total
Capitalization ratio is greater than 50%, the Borrower shall make mandatory
payments of its outstanding debt for borrowed money in an amount equal to the
sum of (i) 50% of the Net Available Proceeds of the issuance of common stock,
preferred stock or other equity within five Business Days after Borrower's
receipt of such Net Available Proceeds and (ii) 100% of Net Available Proceeds
from the sale of assets outside the normal course of business in excess of
$10,000,000 during any 12 consecutive month period within five Business Days
after receipt of any such Net Available Proceeds in excess of such amount
during any such period, in either case to the extent such amount is not used to
pay other Indebtedness of the Borrowers and only to the extent necessary to
reduce the ratio of Total Debt to Total Capitalization to 50% or lower after
giving effect to such issuance or sale and payment.
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2.14 Interest Rate, etc. Each Floating Rate Advance shall bear
interest at the Alternate Base Rate from and including the date of such Advance
or the date on which such Advance was converted into a Floating Rate Advance to
(but not including) the date on which such Floating Rate Advance is paid or
converted to a Eurocurrency Advance pursuant to Section 2.7. Changes in the
rate of interest on that portion of any Advance maintained as a Floating Rate
Advance will take effect simultaneously with each change in the Alternate Base
Rate. Each Eurocurrency Advance, Absolute Rate Advance, and Advance comprised
of Singaporean Rate Swing Loans shall bear interest from and including the
first day of the Interest Period applicable thereto to, but not including, the
last day of such Interest Period at the interest rate determined as applicable
to such Eurocurrency Advance, Absolute Rate Advance, or Advance comprised of
Singaporean Rate Swing Loans. No Interest Period may end after the Facility
Termination Date.
2.15 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.6 or 2.7, no Advance may be made as, converted
into, or continued as a Eurocurrency Advance or an Advance comprised of
Singaporean Rate Swing Loans (except with the consent of the Agent and the
Required Lenders) when any Default or Unmatured Default has occurred and is
continuing. Overdue principal and (to the extent permitted by applicable law)
overdue interest in respect of each Loan shall bear interest, payable on
demand, after as well as before judgement, at a rate per annum equal to the
Alternate Base Rate plus 200 Basis Points per annum.
2.16 Method of Payment.
(a) All payments of the Obligations hereunder (including payments
made pursuant to the last sentence of this Section 2.16) shall be made, without
setoff, deduction, or counterclaim, in immediately available funds to the Agent
at the Agent's Payment Office applicable to the currency in which the payment
is to be made as specified in Schedule 2.9 or at any other Lending Office or
Payment Office of the Agent specified in writing by the Agent, to the Borrower
by noon (time at the Payment Office for applicable currency) on the date when
due and shall be applied ratably by the Agent among the Lenders, Canadian
Lenders, and Singaporean Lenders, as applicable. Each payment delivered to the
Agent for the account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds that the Agent received, at its Payment
Office for Dollar Advances or for the currency in which the payment is to be
made as specified in Schedule 2.9 or at any other Lending Office or Payment
Office specified in a notice received by the Agent from such Lender. The Agent
is hereby authorized to charge the account of the Borrower or any Relevant
Borrower maintained with First Chicago for each payment of principal, interest,
facility fees and annual administrative agent's fees payable in Dollars as it
becomes due hereunder. If the Agent does not intend to so charge such account
for any such amount, it will notify the Borrower of such fact at least two
Business Days prior to the due date of such amount.
(b) All payments of principal of and interest on any Advance or any
other Obligations hereunder shall be made by the Relevant Borrower in the
currency borrowed (the "Specified Currency") in the manner and at the address
(the "Specified Place") specified in Section 2.16(a). Payment of the
Obligations shall not be discharged by an amount paid in another currency or in
another place, whether pursuant to a judgment or otherwise, to the extent that
the amount so paid on
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conversion to the Specified Currency and transferred to the Specified Place
under normal banking procedures does not yield the amount of the Specified
Currency at the Specified Place due hereunder. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
in the Specified Currency into another currency (the "Judgment Currency"), the
rate of exchange which shall be applied shall be that at which in accordance
with normal banking procedures the Agent could purchase the Judgment Currency
with that amount of the Specified Currency on the Business Day next preceding
that on which such judgment is rendered. The obligation of each Borrower in
respect of any such sum due from it to the Agent or any Lender hereunder (an
"Entitled Person") shall, notwithstanding the rate of exchange actually applied
in rendering such judgment, be discharged only to the extent that on the
Business Day following receipt by such Entitled Person of any sum adjudged to
be due hereunder or under the Notes in the Judgment Currency, such Entitled
Person may in accordance with normal banking procedures purchase and transfer
to the Specified Place the Specified Currency with the amount of the Judgment
Currency so adjudged to be due; and each of the Borrowers hereby, as a separate
Obligation and notwithstanding any such judgment, agrees to indemnify such
Entitled Person against, and to pay such Entitled Person on demand, in the
Specified Currency, any difference between the sum originally due to such
Entitled Person in the Specified Currency and the amount of the Specified
Currency so purchased and transferred.
2.17 Telephonic Notices. The Borrowers hereby authorize the Lenders
and the Agent to extend, convert, or continue Advances, effect selections of
Types of Advances, submit Competitive Bid Quotes and transfer funds based on
telephonic notices made by (a) any Authorized Officer of the Borrower or (b)
any person or persons for whom the Lenders and the Agent have received written
authorization from an Authorized Officer of the Borrower, which written
authorization(s) may be relied upon by the Agent, in the case of any person so
authorized, until such time as the Agent shall have received written notice
from an Authorized Officer of the Borrower revoking such person's authority to
make such telephonic notices. The Borrower agrees to deliver promptly to the
Agent a written confirmation, if such confirmation is requested by the Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.
2.18 Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which a
Floating Rate Advance is prepaid, whether due to acceleration or otherwise, and
at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurocurrency Advance on a
day other than a Payment Date shall be payable on the date of conversion.
Interest accrued on each Eurocurrency Advance, Absolute Rate Advance, or
Advance comprised of Singaporean Rate Swing Loans shall be payable on the last
day of its applicable Interest Period and on any date on which the Eurocurrency
Advance, Absolute Rate Advance, or Advances comprised of Singaporean Rate Swing
Loans is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurocurrency Advance, Absolute Rate Advance, or
Advance comprised of Singaporean Rate Swing Loans having an Interest Period
longer than three months shall also be payable on the last day of each three-
month interval during such Interest Period. Interest shall be calculated for
actual days
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elapsed on the basis of a 360-day year, except interest accrued at the
Alternate Base Rate, at the Eurocurrency Rate on Advances denominated in
British pounds sterling, and at the Singaporean Rate shall be calculated for
actual days elapsed on the basis of a 365 or 366-day year. Interest on
Canadian Advances shall be expressed as a yearly rate for purposes of the
Interest Act (Canada) by multiplying such rate of interest by the actual number
of days in the calendar year of calculation and dividing it by 360 days.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (time at
the applicable Payment Office for the Agent) at the place of payment. If any
payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
Facility and letter of credit fees shall be calculated on the basis of 365 or
366-day year.
2.19 Notification of Advances, etc. Promptly after receipt thereof,
the Agent will notify each Lender of the contents of each Aggregate Revolving
Credit Commitment reduction notice, Borrowing Notice, Conversion/Continuation
Notice, Invitation for Competitive Bid Quotes, Swing Loan Request, and
repayment notice received by it hereunder. The Agent will notify each relevant
Lender and the Borrower of the interest rate applicable to each Advance
promptly upon determination of such interest rate and will give each Lender and
the Borrower prompt notice of each change in the Alternate Base Rate.
2.20 Lending Offices. Each Lender may book its Loans at any Lending
Office selected by such Lender and may change its Lending Office from time to
time. All terms of this Agreement shall apply to any such Lending Office and
the Notes shall be deemed held by each Lender for the benefit of such Lending
Office. Each Lender may, by written or telecopy notice to the Agent and the
Borrower, designate a Lending Office through which Loans will be made by it and
for whose account Loan payments are to be made.
2.21 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of the Borrower, a payment by any of the
Borrowers of principal, interest, or fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent may assume
that such payment has been made. The Agent may, but shall not be obligated to,
make the amount of such payment available to the intended recipient in reliance
upon such assumption. If the Relevant Borrower has not in fact made such
payment to the Agent, the Lenders shall, on demand by the Agent, repay to the
Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such amount at a rate
per annum equal to the (i) the Federal Funds Effective Rate for such day for
amounts denominated in or calculated with reference to Dollars, (ii) the
Eurocurrency Base Rate for amounts denominated in or calculated with reference
to Alternative Currencies or Dollars, and (iii) the Singaporean Rate for
Singaporean Rate Swing Loans. If any Lender has not in fact made such payment
to the Agent, such Lender, or the Relevant Borrower shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to (a) in the case of
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payment by a Lender, the Federal Funds Effective Rate for such day for amounts
denominated in or calculated with reference to Dollars and the Eurocurrency
Base Rate for such day for amounts denominated in or calculated with reference
to Alternative Currencies or (b) in the case of payment by any of the
Borrowers, the interest rate applicable to the relevant Loan.
2.22 Taxes.
(a) Any payments made by the Borrowers under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp, or other taxes, levies, imposts,
duties, charges, fees, deductions, or withholdings, now or hereafter imposed,
levied, collected, withheld, or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes or any other tax based upon any
income imposed on the Agent, any Lender, or any Issuing Bank by the
jurisdiction (i) of a Lending Office maintained by the Agent, such Lender, or
such Issuing Bank or (ii) in which the Agent, such Lender, or such Issuing Bank
is incorporated or has its principal place of business. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions, or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Agent, any Lender, or any Issuing Bank hereunder, the
amounts so payable to the Agent, such Lender, or such Issuing Bank shall be
increased to the extent necessary to yield to the Agent, such Lender, or such
Issuing Bank (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in or
pursuant to this Agreement; provided, however, that the Borrowers shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the U.S. or a state thereof if such Lender or such
Issuing Bank fails to comply with the requirements of paragraph (b) of this
Section 2.22. Whenever any Non-Excluded Taxes are payable by one of the
Borrowers, as promptly as practicable thereafter the Relevant Borrower shall
send to the Agent for its own account or for the account of such Lender or such
Issuing Bank, as the case may be, a certified copy of an original official
receipt received by the Relevant Borrower showing payment thereof. If the
Relevant Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Relevant Borrower shall
indemnify the Agent, the Lenders, and each Issuing Bank for any incremental
taxes, interest or penalties that may become payable by any Agent, any Lender,
or any Issuing Bank as a result of any such failure. The agreements in this
Section 2.22 shall survive the termination of this Agreement and the payment of
all other amounts payable hereunder.
(b) At least five Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any Lender or any
Issuing Bank, each Lender and Issuing Bank that is not incorporated under the
laws of the United States of America, or a state thereof, agrees that it will
deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender or such Issuing Bank is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes. Each Lender and each Issuing Bank which so
delivers a Form 1001 or 4224 further undertakes to deliver to each of the
Borrower and the Agent two additional copies of such form (or a successor form)
on or before the date that such form
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expires (currently, three successive calendar years for Form 1001 and one
calendar year for Form 4224) or becomes obsolete or after the occurrence of any
event requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, in each case certifying that such
Lender or such Issuing Bank is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including, without limitation, any
change in treaty, law, or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender or such Issuing
Bank advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
(c) Each Lender and each Issuing Bank shall, as soon as practicable
after the date of this Agreement, file all appropriate forms and take other
appropriate actions to obtain, if and to the extent available under applicable
law, a certificate or other appropriate document from the United Kingdom Inland
Revenue establishing that such Lender or such Issuing Bank, on the date of
delivery thereof, is entitled to receive payments of principal and interest for
the account of its Lending Office under this Agreement and the Notes without
deduction and free from withholding of any income taxes imposed by the United
Kingdom; provided that if the forms supplied by such Lender or such Issuing
Bank fails to establish a complete exemption from withholding tax of the United
Kingdom as of the date of delivery thereof, such Lender or such Issuing Bank
shall, within 15 days after a written request from the Borrower, deliver to the
Borrower the forms or other evidence reasonably satisfactory to the Borrower to
establish, if and to the extent available under applicable law, a complete
exemption from withholding tax of the United Kingdom as of such date.
2.23 Letters of Credit.
2.23.1 Issuance. On the terms and conditions of this Agreement from and
including the date hereof to but excluding the Facility Termination Date, at
the request of a Borrower, an Issuing Bank shall, within three Business Days
after receipt of a request therefor sent to it and the Agent, issue, increase,
or extend the expiration date of Letters of Credit in Dollars or in an
Alternative Currency for the account of such Borrower; provided (a) that the
Aggregate Exposure Amount shall never exceed the Aggregate Revolving Credit
Commitment; (b) the aggregate Letter of Credit Exposure shall never exceed
$100,000,000; and (c) the Dollar Equivalent of the aggregate Eurocurrency
Advances denominated in Alternative Currencies (other than Singaporean Advances
and Canadian Advances) and the Letter of Credit Exposure denominated in
Alternative Currencies shall never exceed the Alternative Currency Sublimit.
2.23.2 Certain Requirements. In addition to the terms and conditions
set forth elsewhere in this Agreement as to the issuance of Letters of Credit,
it shall be a condition to the issuance of any Letter of Credit that:
(a) such Letter of Credit has an Expiration Date not later than five
Business Days before the Facility Termination Date;
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(b) such Letter of Credit shall be in a minimum amount having a
Dollar Equivalent of not less than $3,000,000;
(c) such Letter of Credit is in form and substance reasonably
acceptable to such Issuing Bank; and
(d) the applicable Borrower has delivered to such Issuing Bank a
completed and executed letter of credit application on such form as may be
reasonably requested by such Issuing Bank.
2.23.3 Participations. Upon the date of issuance or increase of a
Letter of Credit, the Issuing Bank of such Letter of Credit shall be deemed to
have sold to each other Revolving Lender and each other Revolving Lender shall
have been deemed to have purchased from such Issuing Bank a participation in
the related Letter of Credit Obligations equal to such Lender's pro-rata share
and such sale and purchase shall otherwise be in accordance with the terms of
this Agreement. The Agent shall promptly notify each such participant
Revolving Lender of each Letter of Credit issued, increased, or extended and
the Dollar Equivalent of such Lender's participation in such Letter of Credit.
2.23.4 Reimbursement. In the event an Issuing Bank makes a payment
pursuant to a request for draw presented under a Letter of Credit and such
payment is not promptly reimbursed by the Borrower which is the account party
thereunder upon demand (the amount demanded is referred to in this Agreement as
the "Reimbursement Obligation"), such Issuing Bank shall give notice of such
payment to the Agent and the Revolving Lenders, and each Revolving Lender shall
promptly reimburse such Issuing Bank in Dollars or the applicable Alternative
Currency such Lender's pro-rata share of such payment and such Borrower's
Reimbursement Obligation in connection with such Letter of Credit shall be
deemed for all purposes of this Agreement to constitute a Floating Rate Advance
in the Dollar Equivalent of such Lender's pro rata share of such payment to
such Borrower from such Lender. Such Borrower hereby unconditionally and
irrevocably authorizes and directs the Agent and the Revolving Lenders to
record and otherwise treat such Reimbursement Obligation not immediately
reimbursed by such Borrower as a Revolving Credit Loan to such Borrower
consisting of Floating Rate Advances in the Dollar Equivalent of such
Reimbursement Obligation. If such reimbursement is not made by any Revolving
Lender to such Issuing Bank on the same day on which such Issuing Bank shall
have made payment on any such draw, such Lender shall pay interest thereon to
such Issuing Bank for each day such amount is due from such Lender at a rate
per annum equal to the Federal Funds Effective Rate on the Dollar Equivalent of
such amount for each such day through the fifth Business Day after such amount
was due and the interest rate applicable to the Borrower on each date
thereafter for Floating Rate Advances.
2.23.5 Revolving Lender Obligations Several. The failure of any
Revolving Lender to pay any amount pursuant to the foregoing Section 2.23.4
shall not relieve any other Revolving Lender of its obligation to make its
payment to such Issuing Bank. No Revolving Lender shall be
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responsible for the failure of any other Revolving Lender to make the payment
to be made by such other Revolving Lender on the date of any payment under a
Letter of Credit.
2.23.6 Obligations Unconditional. The Reimbursement Obligations and
other obligations of the Borrowers under this Agreement in respect of each
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, notwithstanding the following circumstances:
(a) any lack of validity or enforceability of any Letter of Credit
Document;
(b) any amendment or waiver of or any consent to departure from any
Letter of Credit Document, except to the extent otherwise provided in such
amendment, waiver, or consent;
(c) the existence of any claim, set-off, defense, or other right
which the Borrowers may have at any time against any beneficiary or transferee
of such Letter of Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank for such Letter of Credit, or
any other Person or entity, whether in connection with this Agreement, the
transactions contemplated in this Agreement, or in any Letter of Credit
Documents or any unrelated transaction;
(d) any statement or any other document presented under such Letter
of Credit proving to be forged, fraudulent, or invalid in any respect or any
statement therein being untrue or inaccurate in any respect; or
(e) payment by the Issuing Bank under such Letter of Credit against
presentation of a draft or certificate which does not comply with the terms of
such Letter of Credit unless such noncompliance is evident on the face of such
draft or certificate;
provided, however, that nothing contained in this Section 2.23.6 shall be
deemed to constitute a waiver of any remedies of the Borrowers in connection
with the Letters of Credit under Section 2.23.7.
2.23.7 Liability of Issuing Bank. The Borrowers assume all risks of the
acts or omissions of any beneficiary or transferee of any Letter of Credit with
respect to its use of such Letter of Credit. Neither any Issuing Bank nor any
of its officers or directors shall be liable for or responsible for:
(a) the use which may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent, or forged; or
(c) payment by such Issuing Bank against presentation of documents
which do not comply with the terms of a Letter of Credit, including failure of
any documents to bear any reference
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or adequate reference to the Letter of Credit unless such noncompliance is
evident on the face of such draft or certificate.
Notwithstanding the foregoing, the Borrowers shall have a claim against such
Issuing Bank, and such Issuing Bank shall be liable to the Borrowers, to the
extent of any direct, as opposed to consequential damages suffered by the
Borrowers which were caused by (i) such Issuing Bank's willful misconduct or
gross negligence in determining whether documents presented under a Letter of
Credit comply with the terms of such Letter of Credit or (ii) such Issuing
Bank's willful failure to make lawful payment under any Letter of Credit after
the presentation to it of a draft and certificate strictly complying with the
terms and conditions of such Letter of Credit.
In furtherance and not in limitation of the foregoing, such Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection.
(a) If, after the date hereof, with respect to any Eurocurrency
Advance, the adoption of or any change in any law or any governmental or
quasi-governmental rule, regulation, policy, guideline, or directive (whether
or not having the force of law), or any interpretation thereof, or the
compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Office to
any tax, duty, charge, or withholding on or from payments due from any
of the Borrowers (excluding net income taxes and franchise taxes or any
other tax based upon income imposed on the Agent or any Lender by the
jurisdiction (x) of a Lending Office maintained by the Agent or such
Lender or (y) in which the Agent or such Lender is incorporated or has
its principal place of business), or changes the basis of taxation of
principal, interest, or any other payments to any Lender or Lending
Office in respect of its Loans or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit, or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Office (other than
reserves and assessments taken into account in determining the interest
rate applicable to Eurocurrency Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Office of
making, funding, or maintaining Loans or reduces any amount receivable
by any Lender or any applicable Lending Office in
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connection with any Loans, or requires any Lender or any applicable
Lending Office to make any payment calculated by reference to the amount
of Loans held, or interest received by it, by an amount deemed material
by such Lender,
then, within 15 days after demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or resulting in an
amount received which such Lender determines is attributable to making,
funding, and maintaining its Loans and its Commitment.
(b) In addition to any other amounts payable by the Borrowers
hereunder, each Lender may require the Relevant Borrower to pay,
contemporaneously with each payment of interest on Eurocurrency Advances of
such Relevant Borrower, additional interest on the related Eurocurrency Loan of
such Lender at the percentage calculated from time to time by such Lender to be
the percentage required to fully compensate such Lender for all reserve costs,
liabilities, expenses, and assessments which have been incurred by such Lender
(or its applicable Lending Office) regarding the making, funding, or
maintaining of such Eurocurrency Loan (including, without limitation, any and
all liquid asset maintenance requirements of the Bank of England and any
reserve requirements of Regulation D). Any Lender wishing to require payment
of such additional interest (i) shall so notify the Relevant Borrower and the
Agent pursuant to Section 3.6, in which case such additional interest on the
Eurocurrency Loans of such Lender shall be payable in the applicable currency
to such Lender at the place indicated in such notice with respect to each
Interest Period commencing at least five Business Days after the giving of such
notice and (ii) shall notify the Borrower at least five Business Days prior to
each date on which interest is payable on such Eurocurrency Loans of the amount
then due it under this Section 3.1(b); provided, however, that if a Lender
fails to give such prior notice, then such additional interest shall be payable
five Business Days after such notice is given.
3.2 Changes in Capital Adequacy Regulations. If a Lender or an
Issuing Bank determines the amount of capital required or expected to be
maintained by such Lender or such Issuing Bank, any Lending Office of such
Lender or such Issuing Bank or any corporation controlling such Lender or such
Issuing Bank is increased as a result of a Change, then, within 15 days after
demand by such Lender or such Issuing Bank, the Borrower shall pay such Lender
or such Issuing Bank the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which is
attributable to this Agreement, such Lender's Loans or its obligation to make
Loans hereunder, or such Issuing Bank's Letters of Credit or its obligation to
issue the Letters of Credit (after taking into account such Lender's or such
Issuing Bank's good faith policies as to capital adequacy). "Change" means (a)
any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (b) any adoption of or change in any other law, governmental, or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender, any Issuing Bank or any Lending Office or any
corporation controlling any Lender or any Issuing Bank. "Risk-Based Capital
Guidelines" means (a) the risk-based capital guidelines in effect in the United
States on the date of this Agreement and (b) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking
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Regulation and Supervisory Practices entitled "International Convergence of
Capital Measurements and Capital Standards" and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3 Letters of Credit. If any Change shall either (a) impose,
modify, or deem applicable any reserve, special deposit, or similar requirement
against letters of credit issued by, letters of credit participated in, or
assets held by, or deposits in or for the account of, any Revolving Lender or
any Issuing Bank or (b) impose on a Revolving Lender or an Issuing Bank any
other condition regarding the provisions of this Agreement relating to the
Letters of Credit or any Letter of Credit Obligations, and the result of any
event referred to in the preceding clause (a) or (b) shall be to increase the
cost to such Lender or such Issuing Bank of issuing or maintaining or
participating in any Letter of Credit (which increase in cost shall be
determined by such Lender's or such Issuing Bank's reasonable allocation of the
aggregate of such cost increases resulting from such event), then, within 15
days after demand by such Lender or such Issuing Bank, the Borrowers shall pay
to the Agent for the benefit of such Lender or such Issuing Bank, from time-to-
time as specified by such Lender or such Issuing Bank, additional amounts which
shall be sufficient to compensate such Lender or such Issuing Bank for such
increased cost. A certificate as to such increased cost incurred by such
Lender or such Issuing Bank, as a result of any event mentioned in clause (i)
or (ii) above, submitted by such Lender or such Issuing Bank to the Borrowers,
shall be conclusive and binding for all purposes, absent manifest error.
3.4 Availability of Types of Advances. If any Lender determines that
maintenance of its Eurocurrency Loans at a suitable Lending Office would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (a) deposits
of a type and maturity appropriate to match fund Eurocurrency Advances are not
available, (b) the interest rate applicable to a Type of Advance does not
accurately or fairly reflect the cost of making or maintaining such Advance,
(c) a fundamental change has occurred in the foreign exchange or interbank
markets with respect to any applicable Alternative Currency (including, without
limitation, changes in national or international financial, political, or
economic conditions or currency exchange rates or exchange controls), or (d) it
has become otherwise materially impractical for the Lenders to make such
Advance in any applicable Alternative Currency, then the Agent shall suspend
the availability of the affected Type of Advance until such circumstance no
longer exists and require any Eurocurrency Advances of the affected Type to be
repaid.
3.5 Funding Indemnification. If any payment of a Eurocurrency
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurocurrency Advance is not made on the date specified by the Relevant Borrower
for any reason other than default by the Agent or the Lenders, the Borrower
will indemnify the Agent and each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurocurrency
Advance.
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3.6 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending Office
with respect to its Eurocurrency Advances to reduce any liability of the
Borrowers to such Lender under Sections 3.1 and 3.2 or to avoid the
unavailability of a Type of Advance under Section 3.4, so long as such
designation is not disadvantageous to such Lender. Each Lender and each
Issuing Bank shall use reasonable efforts to promptly deliver a written
statement of such Lender or such Issuing Bank to the Borrower (with a copy to
the Agent) as to the amount due, if any, under Sections 3.1, 3.2, 3.3, or 3.5;
provided, however, that with respect to any circumstances occurring before the
date of any such notice, such Lender or such Issuing Bank shall only be
entitled to recover compensation for such events occurring within 120 days
before the date of such notice. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender or such Issuing Bank
determined such amount and shall be final, conclusive and binding on the
Borrowers in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurocurrency Advances shall be
calculated as though each Lender funded its Eurocurrency Advances through the
purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Eurocurrency Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender or any
Issuing Bank shall be payable on demand after receipt by the Borrower of the
written statement. The obligations of the Borrowers under Sections 3.1, 3.2,
3.3, and 3.5 shall survive payment of the Obligations and termination of this
Agreement.
3.7 Right to Substitute Lender. Any Lender claiming any additional
amounts payable pursuant to Section 3.1 or 3.2 or unable to make a Type of
Advance available in accordance with Section 3.4, shall, so long as no Default
or Unmatured Default has occurred and is continuing, upon the written request
of the Borrower delivered to such Lender and the Agent, assign, pursuant to and
in accordance with the provisions of Section 12.3, all of its rights and
obligations under this Agreement and under the Loan Documents to another Lender
or to a commercial bank, other financial institution, commercial finance
company, or other business lender selected by the Borrower and reasonably
acceptable to the Agent that has agreed not to claim any additional amounts
under Section 3.1 or 3.2 with respect to some or all of the taxes or regulatory
changes that gave rise to such assigning Lender's claim for such compensation,
or that has agreed to make the Type of Advance available that was not made
available from such assigning Lender, in consideration for (a) the payment by
such assignee to such assigning Lender of the principal of, and interest
accrued and unpaid to the date of such assignment on, the Notes held by such
assigning Lender, (b) the payment by the Borrower to such assigning Lender of
any and all other amounts owing to such assigning Lender under any provision of
this Agreement accrued and unpaid to the date of such assignment, and (c) the
Borrower's release of such assigning Lender from any further obligation or
liability under this Agreement and the Loan Documents. Notwithstanding
anything to the contrary contained in this Section 3.7, in no event shall the
replacement of any Lender result in a decrease or reallocation of the Aggregate
Total Commitment without the prior written consent of each of the remaining
Lenders.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 Restatement. The Existing Credit Agreement shall be amended and
restated in its entirety by this Agreement upon the satisfaction or written
waiver of each of the following conditions precedent on or before March 20,
1997:
(a) Documentation. The Borrower has furnished the following to the
Agent with sufficient copies for the Lenders:
(i) Charter Documents; Good Standing Certificates. Copies of
the certificate of incorporation of the Borrower, together with all
amendments thereto, certified by the secretary or assistant secretary of
the Borrower and a good standing certificate issued by the Secretary of
State of the jurisdiction of its incorporation and such other
jurisdictions as shall be requested by the Agent.
(ii) By-Laws and Resolutions. Copies, certified by the
secretary or assistant secretary of the Borrower of its by-laws and of
its board of directors' resolutions authorizing the execution, delivery,
and performance of the Loan Documents to which the Borrower is a party.
(iii) Incumbency Certificate. An incumbency certificate,
executed by the secretary or assistant secretary of the Borrower, which
shall identify by name and title and bear the signature of the officers
of the Borrower authorized to sign the Loan Documents and to make
borrowings hereunder, upon which certificate the Agent and the Lenders
shall be entitled to rely until informed of any change in writing by the
Borrower.
(iv) Officer's Certificate. A certificate, dated the initial
Borrowing Date, signed by an Authorized Officer of the Borrower, in form
and substance satisfactory to the Agent, to the effect that: (A) on the
initial Borrowing Date no Default or Unmatured Default has occurred and
is continuing; (B) no injunction or temporary restraining order which
would prohibit the making of the Loans, or other litigation which could
reasonably be expected to have a Material Adverse Effect is pending or,
to the best of such Person's knowledge, threatened; (C) all orders,
consents, approvals, licenses, authorizations, or validations of, or
filings, recordings, or registrations with, or exemptions by, any
governmental or public body or authority, or any subdivision thereof,
required in connection with this Agreement have been or, prior to the
time required, will have been, obtained, given, filed, or taken and are
or will be in full force and effect (or the Borrower has obtained
effective judicial relief with respect to the application thereof) and
all waiting periods applicable thereto have expired; (D) each of the
representations and warranties set forth in Article V of this Agreement
is true and correct on and as of the initial Borrowing Date; and (E)
there has occurred no material adverse change in the consolidated
financial condition of the Borrower from that reflected in the
Borrower's consolidated financial statements as of December 31, 1996.
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(v) Legal Opinions. (i) A written opinion of Franklin Myers,
general counsel of the Borrower, addressed to the Agent and the Lenders
in form and substance acceptable to the Agent and its counsel and (ii) a
written opinion of the outside counsel to the Borrower and the
Subsidiaries addressed to the Agent and the Lenders in form and
substance acceptable to the Agent and its counsel.
(vi) Revolving Credit Notes. A Revolving Credit Note payable
to the order of each of the Revolving Lenders duly executed by each
Borrower.
(vii) Competitive Bid Notes. A Competitive Bid Note payable to
the order of each of the Revolving Lenders duly executed by the
Borrower.
(viii) Swing Notes. A Singaporean Swing Loan Note payable to the
order of each of the Singaporean Lenders duly executed by the
Singaporean Borrower and a Canadian Swing Loan Note payable to the order
of each of the Canadian Lenders duly executed by the Canadian Borrower.
(ix) Loan Documents. Executed originals of this Agreement and
each of the other Loan Documents, which shall be in full force and
effect, together with all schedules, exhibits, certificates,
instruments, opinions, documents, and financial statements required to
be delivered pursuant hereto and thereto.
(x) Letters of Direction. Written money transfer instructions
with respect to the initial Advances and to future Advances in form and
substance acceptable to the Agent and its counsel addressed to the Agent
and signed by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have reasonably
requested.
(xi) Subsidiary Charter Documents; Good Standing Certificates.
Copies of the articles or certificates of incorporation or other
organizational documents of each Borrowing Subsidiary, together with all
amendments thereto, certified by the secretary or assistant secretary,
director, or other appropriate official of such Borrowing Subsidiary and
a good standing certificate (if applicable) issued by the Secretary of
State (or other appropriate official) of the jurisdiction of such
Subsidiary's incorporation or organization and such other jurisdictions
as shall be requested by the Agent.
(xii) Subsidiary By-Laws and Resolutions. Copies, certified by
the secretary or assistant secretary, director, or other appropriate
official of each Borrowing Subsidiary, of its by-laws and board of
directors' (or functional equivalent thereof's) resolutions of such
Subsidiary (and resolutions of other bodies, if any are deemed necessary
by counsel for the Agent) or such other evidence of corporate authority
reasonably acceptable to the Agent in either case authorizing the
execution, delivery, and performance of the Loan Documents to which such
Subsidiary is a party.
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(xiii) Subsidiary Incumbency Certificates. An incumbency
certificate, executed by the secretary or assistant secretary of each
Borrowing Subsidiary, which shall identify by name and title and bear
the signature of the officers of each such Subsidiary authorized to sign
the Loan Documents upon which certificate the Agent and the Lenders
shall be entitled to rely until informed of any change in writing by the
Borrower.
(xiv) Other. Such other documents as the Agent, any Lender, or
their counsel may have reasonably requested. All legal matters incident
to the making of the initial Advances shall be satisfactory to the
Lenders and their counsel.
(b) Payment of Fees and Expenses. The Borrower shall have paid
to the Agent for its account and the fees and expenses required by Section 2.10
to be paid as of the date of this Agreement.
(c) No Default. No Default or Unmatured Default shall have occurred
and be continuing.
(d) Representations and Warranties. The representations and
warranties contained in Article V shall be true and correct in all material
respects.
(e) Existing Credit Agreement. Contemporaneously with the amendment
and restatement of the Existing Credit Agreement, (i) each of the Lenders (as
defined in the Existing Credit Agreement) shall have received payment in full
of all amounts owing under the Existing Credit Agreement from the proceeds of
the initial Advances under this Agreement and (ii) the Agent shall have
received a master assignment agreement in form reasonably satisfactory to the
Agent executed by each of the Existing Lenders which are not party to this
Agreement.
4.2 Each Future Advance. The Revolving Lenders shall not be required
to make any Advance and no Issuing Bank shall be required to issue, increase,
or extend any Letter of Credit, unless on the applicable Borrowing Date or the
date of such issuance, increase, or extension:
(a) There exists no Default or Unmatured Default and none would
result from such Advance or the issuance, increase, or extension of such Letter
of Credit;
(b) The representations and warranties contained in Article V are
true and correct in all material respects as of such Borrowing Date or the date
of such issuance, increase, or extension, except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct in all
material respects on and as of such earlier date; and
(c) A Borrowing Notice, Competitive Bid Quote Request, or Issuance
Request shall have been properly submitted.
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Each Borrowing Notice, Swing Loan Request, Issuance Request, and
Competitive Bid Quote Request with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Section 4.2 have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Lenders that:
5.1 Corporate Existence and Standing. Each of the Borrowers is a
corporation duly incorporated or organized, validly existing, and in good
standing (to the extent applicable) under the laws of its respective
jurisdiction of incorporation or organization. Each of the Borrowers and each
of the Subsidiaries is duly qualified and in good standing (to the extent
applicable) as a foreign corporation or other business entity and is duly
authorized to conduct its business in each jurisdiction in which its business
is conducted or proposed to be conducted except where the failure to qualify
may not reasonably be expected to have a Material Adverse Effect.
5.2 Authorization and Validity. Each of the Borrowers has all
requisite power and authority (corporate and otherwise) and legal right to
execute and deliver each of the Loan Documents to which it is a party and to
perform its obligations thereunder. The execution and delivery by each of the
Borrowers of the Loan Documents to which it is a party and the performance of
its respective obligations thereunder have been duly authorized by proper
corporate proceedings and the Loan Documents constitute legal, valid, and
binding obligations of each of the Borrowers, as applicable, enforceable
against each of such Borrowers, as applicable, in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally.
5.3 Compliance with Laws and Contracts. Each of the Borrowers and
each of the Subsidiaries has complied in all material respects with all
applicable statutes, rules, regulations, orders, and restrictions of any
domestic or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of its respective businesses or the ownership of
its respective properties, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. Neither the
execution and delivery by any of the Borrowers of the Loan Documents to which
it is a party, the application of the proceeds of the Loans or any other
transaction contemplated in the Loan Documents, nor compliance with the
provisions of the Loan Documents will, or at the relevant time did, (a) violate
any law, rule, regulation (including Regulations G, T, U, and X), order, writ,
judgment, injunction, decree, or award binding on any of the Borrowers'
charter, articles or certificate of incorporation, or by-laws, (b) violate the
provisions of or require the approval or consent of any party to any indenture,
instrument, or agreement to which any of the Borrowers is a party or is
subject, or by which it, or its property, is bound (other than violations which
have been permanently and effectively waived), or conflict with or constitute a
default thereunder, or result in the creation or imposition of any Lien (other
than Liens permitted
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by the Loan Documents) in, of or on the property of the Borrowers pursuant to
the terms of any such indenture, instrument, or agreement, or (c) require any
consent of the stockholders of any Person, except for any violation of, or
failure to obtain an approval or consent required under, any such indenture,
instrument, or agreement that could not reasonably be expected to have a
Material Adverse Effect.
5.4 Governmental Consents. Except for those which have been
obtained, no order, consent, approval, qualification, license, authorization,
or validation of, or filing, recording, or registration with, or exemption by,
or other action in respect of, any court, governmental, or public body or
authority, or any subdivision thereof, any securities exchange or other Person
is or at the relevant time was required to authorize, or is or at the relevant
time was required in connection with the execution, delivery, consummation or
performance of, or the legality, validity, binding effect, or enforceability
of, any of the Loan Documents, the application of the proceeds of the Loans or
any other transaction contemplated in the Loan Documents. Neither the Borrower
nor any Subsidiary is in default under or in violation of any foreign, federal,
state, or local law, rule, regulation, order, writ, judgment, injunction,
decree, or award binding upon or applicable to the Borrower or such Subsidiary,
in each case the consequences of which default or violation could reasonably be
expected to have a Material Adverse Effect.
5.5 Financial Statements. The Borrower has heretofore furnished to
each of the Lenders the December 31, 1996 audited consolidated financial
statements of the Borrower and the Subsidiaries (the "Financial Statements").
Each of the Financial Statements was prepared in accordance with Agreement
Accounting Principles and fairly presents the consolidated financial condition
and operations of the Borrower and the Subsidiaries at such date and the
consolidated results of their operations for the fiscal year then ended.
5.6 Material Adverse Change. No material adverse change in the
business, Property, financial condition, or results of operations of the
Borrower and the Subsidiaries taken as a whole has occurred since December 31,
1996.
5.7 Taxes. The Borrower and the Subsidiaries have filed or caused to
be filed on a timely basis and in correct form all United States federal and
applicable foreign, state, and local tax returns and all other tax returns
(other than local returns pertaining to immaterial amounts) which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Borrower or any Subsidiary, except for taxes for
which the failure to pay could not be reasonably expected to cause a Material
Adverse Effect or taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided in accordance with Agreement
Accounting Principles and as to which no Lien exists. No tax liens have been
filed and no claims are being asserted with respect to any such taxes which
could reasonably be expected to have a Material Adverse Effect. The charges,
accruals, and reserves on the books of the Borrower and the Subsidiaries in
respect of any taxes or other governmental charges are in accordance with
Agreement Accounting Principles.
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5.8 Litigation and Contingent Obligations. There is no litigation,
arbitration, proceeding, inquiry, or governmental investigation pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any Subsidiary or any of their respective properties which could
reasonably be expected to have a Material Adverse Effect or to prevent, enjoin,
or unduly delay the making of the Loans under this Agreement.
5.9 Subsidiaries. Schedule 5.9 contains an accurate list of all of
the existing Subsidiaries as of the date of this Agreement, setting forth their
respective jurisdictions of incorporation or organization and the percentage of
their capital stock owned by the Borrower or other Subsidiaries. Each
Borrowing Subsidiary is a direct, Wholly-Owned Subsidiary except for the
Singaporean Borrower, all of the issued and outstanding capital stock of which
is owned by the Borrower and Cooper Energy Services International, Inc., a
direct, Wholly-Owned Subsidiary of the Borrower. All of the issued and
outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued, and are fully paid and non-assessable, and are
free and clear of all Liens. No authorized but unissued or treasury shares of
capital stock of any Subsidiary are subject to any option, warrant, right to
call, or commitment of any kind or character. Except as set forth on Schedule
5.9, no Subsidiary has any outstanding stock or securities convertible into or
exchangeable for any shares of its capital stock, or any right issued to any
Person (either preemptive or other) to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments, or claims of any
character relating to any of its capital stock or any stock or securities
convertible into or exchangeable for any of its capital stock other than as
expressly set forth in the certificate or articles of incorporation or other
charter document of the Borrower or such Subsidiary.
5.10 ERISA. Except as disclosed on Schedule 5.10, no Single Employer
Plan has any Unfunded Liability in excess of $15,000,000. Neither the Borrower
nor any other member of a Controlled Group maintains, or is obligated to
contribute to, any Multiemployer Plan or has incurred any unsatisfied
withdrawal liability to any Multiemployer Plan, or is reasonably expected to
incur, any withdrawal liability to any Multiemployer Plan. Each Plan complies
in all material respects with all applicable requirements of law and
regulations. Neither the Borrower nor any member of a Controlled Group has,
with respect to any Plan, failed to make any material contribution or pay any
material amount required under Section 412 of the Code or Section 302 of ERISA
or the terms of such Plan. There are no pending or, to the knowledge of the
Borrower, threatened claims, actions, investigations, or lawsuits against any
Plan, any fiduciary thereof, or the Borrower or any member of a Controlled
Group with respect to a Plan which could reasonably be expected to have a
Material Adverse Effect. The Borrower has not engaged in any prohibited
transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) in
connection with any Plan which would subject the Borrower to any material
liability. Within the last five years, neither the Borrower nor any member of
a Controlled Group has engaged in a transaction which resulted in a Single
Employer Plan with an Unfunded Liability being transferred out of a Controlled
Group and which could reasonably be expected to have a Material Adverse Effect.
No Termination Event has occurred or is reasonably expected to occur with
respect to any Plan which is subject to Title IV of ERISA which could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any other member of a Controlled Group has any material liability,
contingent or otherwise, under either Title
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IV of ERISA or Chapter 43 of the Code by reason of being or having at some
earlier date been a part of Cooper Industries, Inc. or being or having been
treated as a single employer with Cooper Industries, Inc. as a single employer
under Section 414 of the Code.
5.11 Defaults. No Default or Unmatured Default has occurred and is
continuing.
5.12 Federal Reserve Regulations. Neither the Borrower nor any
Subsidiary is engaged, directly or indirectly, principally, or as one of its
important activities, in the business of extending, or arranging for the
extension of, credit for the purpose of purchasing or carrying Margin Stock.
No part of the proceeds of any Loan will be used in a manner which would
violate, or result in a violation of, Regulation G, Regulation T, Regulation U,
or Regulation X. Neither the making of any Advance hereunder, the use of the
proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, Regulation T, Regulation U, or Regulation X. Following the
application of the proceeds of the Loans, less than 25% of the value (as
determined by any reasonable method) of the assets of the Borrower and the
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder taken as a whole have been, and will continue to be,
represented by Margin Stock.
5.13 Investment Company. Neither the Borrower nor any Subsidiary is,
or after giving effect to any Advance will be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
5.14 Material Agreements. Neither the Borrower nor any Subsidiary is
a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance, or fulfillment of any of the obligations, covenants,
or conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
5.15 Environmental Laws. There are no claims, investigations,
litigation, administrative proceedings, notices, requests for information (each
a "Proceeding"), whether pending or threatened, or judgments or orders
asserting violations of applicable federal, state, and local environmental,
health, and safety statutes, regulations, ordinances, codes, rules, orders,
decrees, directives, and standards ("Environmental Laws") or relating to any
toxic or hazardous waste, substance, or chemical or any pollutant, contaminant,
chemical, or other substance defined or regulated pursuant to any Environmental
Law, including, without limitation, asbestos, petroleum, crude oil, or any
fraction thereof ("Hazardous Materials") asserted against the Borrower or any
of the Subsidiaries which, in any case, could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has caused or
permitted any Hazardous Materials to be released, either on or under real
property, currently (or, to the best of their knowledge, formerly), legally or
beneficially owned or operated by the Borrower or any Subsidiary or on or under
real property to which the Borrower or any of the Subsidiaries transported,
arranged for the transport or disposal of, or disposed of Hazardous Materials,
which release could reasonably be expected to have a Material Adverse Effect.
To the knowledge of each of the Borrowers, no real property currently or
formerly
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owned or operated by the Borrower or any Subsidiary has ever been used as a
dump or disposal site or as a treatment or storage site for Hazardous Materials
in a material violation of any Environmental Law, except as disclosed on
Schedule 5.15. The Borrower and each of the Subsidiaries have obtained and are
in compliance in all material respects with all material permits, certificates,
licenses, approvals, and other authorizations ("Environmental Permits")
required for the operation of their business and have filed all required
notifications or reports relating to chemical substances, air emissions, and
effluent discharges and the storage, treatment, transport, and disposal of
Hazardous Materials, except for such Environmental Permits for which the
failure to so obtain or comply could reasonably be expected to cause a Material
Adverse Effect. To the knowledge of each of the Borrowers, no asbestos
containing materials, polychlorinated biphenyls, or underground storage tanks
are or have been located in, on or under real property owned or operated by the
Borrower or any of the Subsidiaries, in a material violation of any
Environmental Law.
5.16 Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all or substantially all of its Property, or shall maintain self-insurance, in
such amounts and covering such risks as is consistent with sound business
practice for Persons in substantially the same industry as the Borrower or such
Subsidiary, and the Borrower will furnish to any Lender upon request full
information as to the insurance carried.
5.17 Disclosure. None of the (a) information, exhibits or reports
furnished or to be furnished by the Borrower or any Subsidiary to the Agent or
to any Lender in connection with the negotiation of the Loan Documents or (b)
representations or warranties of the Borrower or any Subsidiary contained in
this Agreement, the other Loan Documents or any other document, certificate, or
written statement furnished to the Agent or the Lenders by or on behalf of the
Borrower or any Subsidiary for use in connection with the transactions
contemplated by this Agreement contained, contains or will contain any untrue
statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. There is
no fact known to any of the Borrowers (other than matters of a general economic
nature) that has had or could reasonably be expected to have a Material Adverse
Effect and that has not been disclosed herein or in such other documents,
certificates and statements furnished to the Lenders for use in connection with
the transactions contemplated by this Agreement.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with Agreement Accounting Principles, consistently applied, and
furnish to the Lenders:
(a) Within 90 days after the close of each of its fiscal years, an
audit report unqualified as to going concern or as to access to information or
in any other material respect and certified by independent certified public
accountants, acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles, as in effect from time to time, applied consistently on
a consolidated basis for itself and the Subsidiaries, including balance sheets
as of the end of such period and related statements of income, retained
earnings, and cash flows accompanied by a certificate of said accountants that,
in the course of the examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or Unmatured Default,
or if, in the opinion of such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof. The 90-day period
referenced above shall be extended for up to 15 days for any fiscal year as to
which the Borrower has received an extension from the SEC for the filing of its
annual report on SEC Form 10K.
(b) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and the Subsidiaries,
consolidated unaudited balance sheets as at the close of each such period and
consolidated statements of income, retained earnings, and cash flows for the
period from the beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer. The 45-day period referenced above
shall be extended for up to 15 days for any fiscal quarter as to which the
Borrower has received an extension from the SEC for the filing of its quarterly
report on SEC Form 10Q.
(c) Within 45 days after the close of each fiscal quarter, for each
of the Borrowing Subsidiaries, consolidating unaudited balance sheets as at the
close of each such period and consolidating statements of income for the period
from the beginning of such fiscal year to the end of such quarter, all
certified by the Borrower's chief financial officer. The 45-day period
referenced above shall be extended for up to 15 days for any fiscal quarter as
to which the Borrower has received an extension from the SEC for the filing of
its quarterly report on SEC Form 10Q.
(d) Together with the financial statements required by clauses (a)
and (b) above, a compliance certificate in substantially the form of Exhibit G
signed by an Authorized Officer of the Borrower showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
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(e) Within 10 Business Days after the Borrower knows that any
Termination Event that could reasonably be expected to cause a Material Adverse
Effect has occurred with respect to any Plan, a statement, signed by an
Authorized Officer of the Borrower, describing such Termination Event and the
action which the Borrower proposes to take with respect thereto.
(f) Within 30 days after receipt by the Borrower, a copy of (i) any
notice, claim, complaint or order to the effect that the Borrower or any of the
Subsidiaries is or may be liable to any Person in an amount which could
reasonably be expected to exceed $5,000,000 as a result of the release by the
Borrower, any of the Subsidiaries, or any other Person of any Hazardous
Materials into the environment or requiring that action be taken to respond to
or clean up a Release of Hazardous Materials into the environment and (ii) any
notice, complaint, or citation alleging any violation of any Environmental Law
or Environmental Permit by the Borrower or any of the Subsidiaries as to which
the liability of the Borrower and the Subsidiaries may reasonably be expected
to exceed $5,000,000.
(g) Promptly upon the furnishing thereof to the stockholders of the
Borrower, copies of all financial statements, reports, and proxy statements so
furnished.
(h) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly, or other regular reports which the
Borrower or any of the Subsidiaries files with the SEC.
(i) Such other information (including non-financial information) as
the Agent or any Lender may from time to time reasonably request.
6.2 Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Revolving Credit Advances, the
Competitive Bid Advances, the Letters of Credit, and the Swing Loans to meet
the general corporate needs of the Borrower and the Subsidiaries. The Borrower
will not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances, the Letters of Credit, or the Swing Loans to purchase or carry any
Margin Stock or to finance the Purchase of any Person which has not been
approved and recommended by the board of directors (or functional equivalent
thereof) of such Person.
6.3 Notice of Default. The Borrower will give prompt notice in
writing to the Lenders of the occurrence of (a) any Default or Unmatured
Default and (b) any other event or development, financial or otherwise,
relating specifically to the Borrower or any of the Subsidiaries (and not of a
general economic or political nature) which could reasonably be expected to
have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower and the Subsidiaries, taken as
a whole, will carry on and conduct their business in substantially the same
manner and in substantially the same or related fields of enterprise as it is
presently conducted by the Borrower and the Subsidiaries taken as a whole. The
Borrower will, and will cause each Subsidiary to, do all things necessary to
remain duly incorporated, validly existing, and in good standing as a
corporation or other business entity
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in its jurisdiction of incorporation or organization and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted where the failure to so maintain its authority could reasonably be
expected to cause a Material Adverse Effect; provided, however, that
Subsidiaries may enter into mergers permitted by Section 6.11 and may (other
than in the case of Borrowing Subsidiaries) be liquidated if such liquidation
may not reasonably be expected to have a Material Adverse Effect.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state, and local tax returns required by applicable law and pay when due all
material taxes, assessments, and governmental charges and levies upon it or its
income, profits, or Property, except which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside.
6.6 Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
substantially all their Property, or maintain self insurance, in such amounts
and covering such risks as is consistent with sound business practice, and the
Borrower will furnish to the Agent and any Lender upon request full information
as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees, or awards to which it may be subject, the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect or for which the compliance is being contested in good faith by
appropriate proceedings.
6.8 Inspection. The Borrower will, and will cause each Subsidiary
to, permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, corporate books and financial records
of the Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and
to discuss the affairs, finances and accounts of the Borrower and each
Subsidiary with, and to be advised as to the same by, the officers of the
Borrowers at such reasonable times and intervals as the Lenders may designate
and upon reasonable notice. When no Default has occurred and is continuing,
any such inspection or examination shall be at the Lenders' cost and expense.
When a Default has occurred and is continuing, any such inspection or
examination shall be at the Borrower's cost and expense.
6.9 Capital Stock and Dividends. The Borrower will not, nor will it
permit any Subsidiary to:
(a) issue (except by a Subsidiary to the Borrower or any Wholly-Owned
Subsidiary) any preferred stock, other capital stock or any equity securities
of any kind subject to sinking fund payments or other mandatory redemptions or
payments prior to the Facility Termination Date or
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(b) declare or pay any dividends or make any distributions on its
capital stock (other than dividends payable in its own common stock) or redeem,
repurchase, or otherwise acquire or retire any of its capital stock or any
options or other rights in respect thereof at any time outstanding if a
Default or Unmatured Default exists before or after giving effect thereto.
6.10 Indebtedness of Subsidiaries. The Borrower will not permit the
Subsidiaries to create, incur, or suffer to exist (a) Indebtedness which, in
accordance with Agreement Accounting Principles is required to be shown on the
balance sheet of such Person (other than Indebtedness owed by one of the
Borrower's Wholly-Owned Subsidiaries to the Borrower or to another Wholly-Owned
Subsidiary), (b) Contingent Obligations in respect of a Person other than the
Borrower or another Subsidiary, (c) Attributable Debt as lessor or guarantor
under Synthetic Leases, and (d) Attributable Debt as seller, originator, or
guarantor under accounts or notes receivable financing or securitization
programs, in an aggregate amount outstanding at any time in excess of
$150,000,000.
6.11 Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that (a) a
Wholly-Owned Subsidiary may merge into the Borrower or any Wholly-Owned
Subsidiary of the Borrower and (b) the Borrower or any Subsidiary may merge or
consolidate with any other Person, so long as immediately thereafter (and after
giving effect thereto), (i) no Default or Unmatured Default exists, (ii) in the
case of a merger or a consolidation involving the Borrower, the Borrower is the
continuing or surviving corporation, and (iii) in the case of a merger or a
consolidation involving a Borrowing Subsidiary, if such Subsidiary is not the
continuing or surviving entity, then the continuing or surviving entity has
agreed in writing to assume the obligations of such Subsidiary under the Loan
Documents.
6.12 Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to enter into any Asset Disposition from on and after the date of
this Agreement, except for Asset Dispositions that in the aggregate do not
constitute a Substantial Portion of the Property of the Borrower and the
Subsidiaries.
6.13 Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable arising in the ordinary course of business on terms customary in the
trade and which are due within 120 days after the invoice date, with or without
recourse, in an amount that exceeds $150,000,000 in the aggregate face amount
at any time outstanding.
6.14 Investments in Foreign Subsidiaries. The Borrower will not, nor
will it permit any Subsidiary to, make or suffer to exist any Investments in
Foreign Subsidiaries organized under the laws of or with a principal place of
business or headquarters in a non-Investment Grade Country, or commitments
therefor, or to create any Subsidiary or to become or remain a partner in any
partnership or joint venture organized under the laws of or with a principal
place of business or headquarters in a non-Investment Grade Country, except for
cash Investments which, when aggregated with (i) the outstanding amount of net
equity (i.e., cash contributed net of cash dividends and cash redemptions
received) invested by the Borrower in such Foreign Subsidiaries and
partnerships and joint ventures and (ii) all other outstanding Indebtedness
owing to the Borrower and
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the Subsidiaries by such Foreign Subsidiaries and such partnership and joint
ventures, does not exceed, at the time made, the greater of (A) 5% of the
Borrower's consolidated net assets and (B) $75,000,000.
6.15 Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of the Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with
generally accepted principles of accounting shall have been set aside on its
books;
(b) Liens imposed by law, such as carriers', warehousemen's, and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure the payment of obligations not more than 60 days past due
or which are being contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions, and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries;
(e) Liens existing on the date hereof and described in Schedule 6.15;
and
(f) Liens other than those permitted by (a), (b), (c), (d), or (e)
immediately above securing Indebtedness not at any time exceeding in the
aggregate 10% of Net Worth.
6.16 Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate that is not a Subsidiary, except in the ordinary
course of business and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms.
The Borrower will cause each Borrowing Subsidiary to remain a Wholly-Owned
Subsidiary.
6.17 Environmental Matters. The Borrower will, and will cause each
Subsidiary to, (a) conduct its business so as to comply with all applicable
material Environmental Laws and shall promptly take corrective action to remedy
any non-compliance with any applicable material Environmental Law, except where
failure to comply or take action could not reasonably be expected to have a
Material Adverse Effect and (b) establish and maintain a management system
designed to
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ensure compliance with applicable material Environmental Laws and minimize
financial and other risks to the Borrower and each Subsidiary arising under
applicable material Environmental Laws or as the result of environmentally
related injuries to Persons or Property. If the Agent or any Lender at any
time has a reasonable basis to believe that there may be a material violation
of any Environmental Law by the Borrower or any of the Subsidiaries, or any
material liability arising thereunder or related to a Release of Hazardous
Materials on any real property owned, leased, or operated by the Borrower or
any of the Subsidiaries or a Release on real property adjacent to such real
property, then the Borrower shall, upon the request of the Agent or such
Lender, provide the Agent and each Lender with all such reports, certificates,
engineering studies, and other written material or data relating thereto as the
Agent or any Lender may reasonably require.
6.18 Restrictions on Subsidiary Payments. The Borrower shall not, nor
shall it permit any Subsidiary to, enter into any indenture, agreement,
instrument or other arrangement which, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon the ability of any Subsidiary to (a) pay
dividends or make other distributions on its capital stock, (b) make loans or
advances to the Borrower, or (c) repay loans or advances from the Borrower.
6.19 Financial Covenants. The Borrower on a consolidated basis with
the Subsidiaries:
6.19.1 Coverage Ratio. As of the end of each fiscal quarter for the
four fiscal quarters then ended shall not permit the Coverage Ratio to be less
than 2.5.
6.19.2 Total Debt to Total Capitalization Ratio. Shall not permit the
ratio of Total Debt to Total Capitalization to be greater than 50% at any time;
provided that the ratio of Total Debt to Total Capitalization may increase to
up to 60% for up to one year after the date of a Specified Acquisition approved
by the board of directors (or functional equivalent thereof) of the acquired
business; provided further that, prior to effecting any such acquisition, the
Borrower provides to the Agent and the Lenders financial projections covering
the 12 months beginning on or about the date of such acquisition and showing
that (a) the financing of such acquisition will not otherwise cause any Default
or Unmatured Default during such period and (b) the ratio of Total Debt to
Capitalization will be 50% or less within such 12-month period.
6.20 ERISA Compliance.
With respect to any Plan, neither the Borrower nor any Subsidiary shall:
(a) incur any "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA) in excess of $10,000,000, whether or not
waived;
(b) permit the occurrence of any Termination Event which could result
in a liability to the Borrower or any other member of a Controlled Group in
excess of $10,000,000;
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(c) be an "employer" (as such term is defined in Section 3(5) of
ERISA) required to contribute to any Multiemployer Plan or a "substantial
employer" (as such term in defined in Section 4001(a)(2) of ERISA) required to
contribute to any Multiemployer Plan; or
(d) permit the establishment or amendment of any Plan or fail to
comply with the applicable provisions of ERISA and the Code with respect to any
Plan which could result in liability to the Borrower or any other member of a
Controlled Group which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary shall incur liability in excess of
$10,000,000 under Title IV of ERISA or Chapter 43 of the Code by reason of
being or having been a part of Cooper Industries, Inc.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any written representation or warranty made, or deemed made
pursuant to Section 4.2, by the Borrower or any of the Subsidiaries to the
Lenders or the Agent under or in connection with this Agreement, any Loan, or
any certificate delivered in connection with this Agreement or any other Loan
Document shall be false in any material respect on the date as of which made.
7.2 Nonpayment of (a) principal of any Revolving Credit Note when
due, (b) principal of any Swing Note (i) within five Business Days of when due
if the Aggregate Revolving Credit Commitment minus the Aggregate Exposure
Amount (the "Availability") on the date such principal payment is due is
greater than or equal to the principal amount so due or (ii) when due if the
Availability is less than the principal amount so due, or (c) interest upon any
Note or any facility fee or other fee or obligations under any of the Loan
Documents within five Business Days after the same becomes due.
7.3 The breach by any of the Borrowers of any of the terms or
provisions of Section 6.2 or 6.3(a) or Sections 6.09 through 6.20.
7.4 The breach by any of the Borrowers (other than a breach which
constitutes a Default under Section 7.1, 7.2, or 7.3) of any of the terms or
provisions of this Agreement which is not remedied within 30 days after written
notice from the Agent or any Lender.
7.5 The default (after any applicable grace period) by the Borrower
or any of the Subsidiaries in the performance of any term, provision, or
condition contained in any agreement or agreements under which any Indebtedness
aggregating in excess of $20,000,000 is outstanding or
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any Hedging Obligations with an aggregate mark-to-market exposure in excess of
$20,000,000, provided such default has not been cured or waived, or the
occurrence of any other event or existence of any other condition, the effect
of any of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity or such Hedging Obligations to terminate or become due before its
stated due date; or any such Indebtedness or Hedging Obligations of the
Borrower or any of the Subsidiaries shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof.
7.6 The Borrower or any of the Subsidiaries shall (a) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (b) make an assignment for the benefit of creditors,
(c) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator, or similar official for it
or any Substantial Portion of its Property, (d) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment, or composition of it or its debts under any law relating to
bankruptcy, insolvency, or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (e) take any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 7.6, (f) fail to
contest in good faith any appointment or proceeding described in Section 7.7,
or (g) become unable to pay, not pay, or admit in writing its inability to pay,
its debts generally as they become due.
7.7 Without the application, approval, or consent of the Borrower or
any of the Subsidiaries, a receiver, trustee, examiner, liquidator, or similar
official shall be appointed for the Borrower or any of the Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(d) shall be instituted against the Borrower or any of the Subsidiaries and
such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days.
7.8 Any court, government, or governmental agency shall condemn,
seize, or otherwise appropriate, or take custody or control of (each a
"Condemnation"), all or any portion of the Property of the Borrower and the
Subsidiaries which, when taken together with all other Property of the Borrower
and the Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Borrower or any of the Subsidiaries shall fail within thirty
days to pay, bond, or otherwise discharge any judgment or order for the payment
of money in excess of $10,000,000 (or multiple judgments or orders for the
payment of an aggregate amount in excess of $20,000,000), which is not stayed
on appeal or otherwise being appropriately contested in good faith and as to
which no enforcement actions have been commenced.
7.10 Any Change in Control shall occur.
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7.11 The Parent Guaranty shall fail to remain in full force or effect
or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Parent Guaranty, or the Borrower shall fail to comply
with any of the terms or provisions of the Parent Guaranty or shall deny that
it has any further liability under the Parent Guaranty or gives notice to such
effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Optional Acceleration of Maturity. If any Default (other than a
Default under Section 7.6, 7.7, or 7.8) shall have occurred and be continuing,
then, and in any such event,
(a) the Agent (i) shall at the request, or may with the consent, of
the Required Lenders, by notice to the Borrowers, declare the obligation of
each Lender to make Loans and the obligation of each Issuing Bank to issue,
increase, or extend Letters of Credit to be terminated, whereupon the same
shall forthwith terminate and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon, the Letter of Credit Obligations, and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest, all such Letter of Credit Obligations and all such
amounts shall become and be forthwith due and payable in full, without
presentment, demand, protest, or further notice of any kind (including, without
limitation, any notice of intent to accelerate or notice of acceleration), all
of which are hereby expressly waived by the Borrowers;
(b) the Borrower shall, on demand of the Agent at the request or with
the consent of the Required Lenders, deposit with the Agent into the Cash
Collateral Account an amount of cash equal to the Letter of Credit Exposure as
security for the Obligations to the extent the Letter of Credit Obligations are
not otherwise paid at such time; and
(c) the Agent shall at the request of, or may with the consent of,
the Required Lenders proceed to enforce its rights and remedies under the
Parent Guaranty or any other Loan Document for the ratable benefit of the
Lenders by appropriate proceedings.
8.2 Automatic Acceleration of Maturity. If any Default pursuant to
Section 7.6, 7.7, or 7.8 shall occur,
(a) the obligation of each Lender to make Loans and the obligation of
each Issuing Bank to issue, increase, or extend Letters of Credit shall
immediately and automatically be terminated and the Notes, all interest on the
Notes, all Letter of Credit Obligations, and all other amounts payable under
this Agreement shall immediately and automatically become and be due and
payable in full, without presentment, demand, protest, or any notice of any
kind (including, without limitation, any notice of intent to accelerate or
notice of acceleration), all of which are hereby expressly waived by the
Borrowers;
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(b) the Borrower shall deposit with the Agent into the Cash
Collateral Account an amount of cash equal to the outstanding Letter of Credit
Exposure as security for the Obligations to the extent the Letter of Credit
Obligations are not otherwise paid at such time; and
(c) the Agent shall at the request of, or may with the consent of,
the Required Lenders proceed to enforce its rights and remedies under the
Parent Guaranty or any other Loan Document for the ratable benefit of the
Lenders by appropriate proceedings.
8.3 Cash Collateral Account.
(a) Pledge. The Borrower hereby pledges, and grants to the Agent for
the benefit of the Lenders, a security interest in all funds held in the Cash
Collateral Account from time-to-time and all proceeds thereof, as security for
the payment of the Obligations, including all Letter of Credit Obligations
owing to the Issuing Banks or any other Lender due and to become due from the
Borrower to any Issuing Bank or any other Lender under this Agreement in
connection with the Letters of Credit. Nothing in this Section 8.3, however,
shall either obligate the Agent to require any funds to be deposited in the
Cash Collateral Account or limit the right of the Agent, which it may exercise
at any time and from time-to-time, to release to the Borrower any funds held in
the Cash Collateral Account pursuant to the other provisions of this Section
8.3.
(b) Application against Letter of Credit Obligations; Release of
Funds. The Agent may, at any time or from time-to-time apply funds then held
in the Cash Collateral Account to the payment of any Letter of Credit
Obligations owing to the Issuing Banks, in such order as the Agent may elect,
as shall have become or shall become due and payable by the Borrower to the
Issuing Banks under this Agreement in connection with the Letters of Credit.
So long as no Default referred to in Section 7.2 shall have occurred and be
continuing, the Agent will release to the Borrower at the Borrower's written
request funds held in the Cash Collateral Account in an amount up to but not
exceeding the excess, if any (immediately prior to the release of any such
funds), of (i) the total amount of funds held in the Cash Collateral Account
over (ii) the Letter of Credit Exposure.
(c) Duty of Care. The Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Cash Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Agent accords its own
property, it being understood that the Agent shall not have any responsibility
for taking any necessary steps to preserve rights against any parties with
respect to any such funds.
8.4 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into agreements supplemental hereto for
the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrowers hereunder or
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waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender:
(a) Extend the final maturity of any Loan or Note or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest or fees thereon;
(b) Reduce the percentage specified in the definition of Required
Lenders;
(c) Increase the amount of the Commitment of any Lender hereunder;
(d) Extend the Facility Termination Date;
(e) Amend this Section 8.4;
(f) Release the Borrower from the Parent Guaranty; or
(g) Permit any assignment by any of the Borrowers of their respective
Obligations or its rights hereunder.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive
payment of the fee required under Section 12.3.2 without obtaining the consent
of any other party to this Agreement.
8.5 Preservation of Rights. No delay or omission of the Lenders or
the Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein,
and the making of a Loan notwithstanding the existence of a Default or the
inability of any of the Borrowers to satisfy the conditions precedent to such
Loan shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment, or other
variation of the terms, conditions, or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.4, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent and the
Lenders until the Obligations have been paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties
of the Borrowers contained in this Agreement or of the Borrower or any
Subsidiary contained in any Loan Document shall survive delivery of the Notes
and the making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
any of the Borrowers in violation of any limitation or prohibition provided by
any applicable statute or regulation.
9.3 Taxes. Any stamp, documentary, or similar taxes, assessments, or
charges payable or ruled payable by any governmental authority in respect of
the Loan Documents shall be paid by the Borrowers, together with interest and
penalties, if any, accruing after the Borrower has notice of such taxes,
assessments, or charges.
9.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agent, and the Lenders and supersede
all prior agreements and understandings among any of the Borrowers, the Agent,
and the Lenders relating to the subject matter thereof other than the fee
letter dated February 21, 1997 in favor of First Chicago.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint, and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any
of its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
9.7 Expenses; Indemnification. The Borrowers shall reimburse the
Agent for any reasonable costs and out-of-pocket expenses (including attorneys'
fees and time charges of attorneys for the Agent, which attorneys may be
employees of the Agent) paid or incurred by the Agent in connection with the
preparation, negotiation, execution, delivery, review, amendment, and
modification of the Loan Documents. The Borrowers also agree to reimburse the
Agent and the Lenders for any reasonable costs and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Agent and the Lenders, which attorneys may be employees of the Agent or the
Lenders) paid or incurred by the Agent or any Lender in connection with the
collection of any Obligations not paid when due or enforcement of the Loan
Documents. The Borrowers further agree to indemnify the Agent and each Lender,
its directors, officers, and employees against all losses, claims, damages,
penalties, judgments, liabilities, and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the
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Agent or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or thereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder
except to the extent that they arise out of the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the
Borrowers under this Section 9.7 shall survive the termination of this
Agreement.
9.8 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10 Nonliability of Lenders. The relationship between the Borrowers
and the Lenders and the Agent shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrowers. Neither the Agent nor any Lender undertakes any responsibility
to the Borrowers to review or inform the Borrowers of any matter in connection
with any phase of the Borrowers' business or operations. Each of the Borrowers
shall rely entirely upon its own judgment with respect to its business, and any
review, inspection, or supervision of, or information supplied to the Borrowers
by the Agent or the Lenders is for the protection of the Agent and the Lenders
and neither the Borrowers nor any other Person is entitled to rely thereon.
The Borrowers (a) agree that neither the Agent nor any Lender shall have
liability to the Borrowers (whether sounding in tort, contract, or otherwise)
for losses suffered by the Borrowers in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission, or event occurring in
connection therewith, unless it is determined by a judgment of a court that is
binding on the Agent, or such Lender, final and not subject to review on
appeal, that such losses were the result of acts or omissions on the part of
the Agent or such Lender, as the case may be, constituting gross negligence or
willful misconduct of the party from which recovery is sought. Whether or not
such damages are related to a claim that is subject to the waiver effected
above and whether or not such waiver is effective, neither the Agent nor any
Lender shall have any liability with respect to, and the Borrowers hereby
waive, release, and agree not to sue for, any special, indirect or
consequential damages suffered by the Borrowers in connection with, arising out
of, or in any way related to the Loan Documents or the transactions
contemplated thereby or the relationship established by the Loan Documents, or
any act, omission, or event occurring in connection therewith.
9.11 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS, WITHOUT REGARD
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TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.12 CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL, NEW YORK OR
ILLINOIS STATE COURT SITTING IN NEW YORK, NEW YORK OR CHICAGO, ILLINOIS,
RESPECTIVELY, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT
OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY OF THE BORROWERS IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY OF THE
BORROWERS AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A
COURT IN NEW YORK, NEW YORK OR CHICAGO, ILLINOIS; PROVIDED, THAT SUCH
PROCEEDINGS MAY BE BROUGHT IN OTHER COURTS IF JURISDICTION MAY NOT BE OBTAINED
IN A COURT IN NEW YORK, NEW YORK OR CHICAGO, ILLINOIS.
9.13 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
9.14 Disclosure. Each of the Borrowers and each Lender hereby (a)
acknowledge and agree that First Chicago and/or its Affiliates from time to
time may hold other investments in, make other loans to or have other
relationships with any of the Borrowers, including, without limitation, in
connection with any interest rate hedging instruments or agreements or swap
transactions and (b) waive any liability of First Chicago or such Affiliate to
any of the Borrowers or any Lender, respectively, arising out of or resulting
from such investments, loans, or relationships other than liabilities arising
out of the gross negligence or willful misconduct of First Chicago or its
Affiliates to the extent that such liability would not have arisen but for
First Chicago's status as Agent hereunder.
9.15 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been
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executed by the Borrowers, the Agent, and the Lenders and each party has
notified the Agent that it has taken such action.
9.16 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrowers pursuant to this Agreement
in confidence and for use in connection with this Agreement, including, without
limitation, for use in connection with its rights and remedies hereunder,
except for disclosure (a) to its Affiliates or to other Lenders and their
respective Affiliates, (b) to legal counsel, accountants, and other
professional advisors to that Lender, (c) to regulatory officials, (d) as
requested pursuant to or as required by law, regulation, or legal process, (e)
in connection with any legal proceeding to which that Lender is a party, and
(f) permitted by Section 12.4.
ARTICLE X
THE AGENT
10.1 Appointment. First Chicago is hereby appointed Agent hereunder
and under each other Loan Document, and each of the Lenders authorizes the
Agent to act as the agent of such Lender. The Agent agrees to act as such upon
the express conditions contained in this Article X. The Agent shall not have a
fiduciary relationship in respect of any of the Borrowers or any Lender by
reason of this Agreement, any Loan Document or any transaction contemplated
hereby or thereby.
10.2 Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder, except any action specifically provided
by the Loan Documents to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to any of the Borrowers or any
Lender for any action taken or omitted to be taken by it or them hereunder or
under any other Loan Document or in connection herewith or therewith except for
its or their own gross negligence or willful misconduct.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Agent
nor any of its directors, officers, agents, or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (a) any statement,
warranty, or representation made in connection with any Loan Document or any
borrowing hereunder, (b) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender, (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered to the Agent and not waived at
closing, or (d) the validity, effectiveness, sufficiency, enforceability, or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith. The Agent shall have no duty to disclose to the
Lenders information that is not required to be furnished by the
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Borrowers to the Agent at such time, but is voluntarily furnished by any of the
Borrowers to the Agent (either in its capacity as Agent or in its individual
capacity).
10.5 Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders (or, to the extent required by Section 8.4, all Lenders), and
such instructions and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders and on all holders of Notes. The Agent shall
be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro-rata against any and all liability, cost, and
expense that it may incur by reason of taking or continuing to take any such
action.
10.6 Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper, or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Revolving Lenders
agree to reimburse and indemnify the Agent ratably in proportion to their
respective Commitments (or, if the Commitments have been terminated, in
proportion to their Commitments immediately prior to such termination) (a) for
any amounts not reimbursed by the Borrowers for which the Agent is entitled to
reimbursement by any of the Borrowers under the Loan Documents, (b) for any
other expenses incurred by the Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration, and enforcement of
the Loan Documents, and (c) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents; provided, that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent. The obligations of the Revolving Lenders under this
Section 10.8 shall survive payment of the Obligations and termination of this
Agreement.
10.9 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written
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notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Unmatured Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give prompt notice thereof to the Lenders.
10.10 Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is
a Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity, or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of the Subsidiaries in which the Relevant Borrower or
such Subsidiary is not restricted hereby from engaging with any other Person.
The Agent, in its individual capacity, is not obligated to remain a Lender.
10.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement and the other Loan
Documents.
10.12 Successor Agent and Issuing Bank. The Agent or any Issuing Bank
may resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Agent or, if no successor Agent has been appointed, forty-five days after the
retiring Agent gives notice of its intention to resign. Upon any such
resignation, the Required Lenders shall have the right to appoint, on behalf of
the Borrowers and the Lenders, a successor Agent, with the consent of the
Borrower (which shall not be unreasonably withheld). If no successor Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty days after the resigning Agent's giving notice
of its intention to resign, then the resigning Agent may appoint, on behalf of
the Borrowers and the Lenders, a successor Agent. If the Agent has resigned
and no successor Agent has been appointed, the Lenders may perform all the
duties of the Agent hereunder and the Borrowers shall make all payments in
respect of the Obligations to the applicable Lender and for all other purposes
shall deal directly with the Lenders. No successor Agent shall be deemed to be
appointed hereunder until such successor Agent has accepted the appointment.
Any such successor Agent shall be a commercial bank having capital and retained
earnings of at least $50,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges, and
duties of the resigning Agent. Upon the effectiveness of the resignation of
the Agent, the resigning Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. Notwithstanding its
resignation or removal, the retiring Issuing Bank shall remain an Issuing Bank
with respect to any Letters of Credit issued by it and outstanding on the
effective date of its
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resignation or removal and the provisions affecting such Letters of Credit and
such Issuing Bank with respect to such Letters of Credit shall inure to the
benefit of, and shall continue to bind, the retiring or removed Issuing Bank
until the termination of all such Letters of Credit (giving effect to any
extensions or renewals thereof made in accordance with the provisions of this
Agreement). After the effectiveness of the resignation of an Agent or an
Issuing Bank, the provisions of this Article X shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent or an Issuing Bank hereunder and under the other Loan
Documents.
10.13 Co-Agents. There shall be no rights, obligation, or liabilities
afforded to or imposed upon any Co-Agent by virtue of its status as such under
this Agreement.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or
not collected or available) and any other Indebtedness at any time held or
owing by any Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. While no Default or Unmatured Default exists,
if any Revolving Lender, whether by setoff or otherwise, has payment made to it
upon its Revolving Credit Loans (other than payments received pursuant to
Section 3.1, 3.2, or 3.5) in a greater proportion than its pro-rata share of
such Revolving Credit Loans, such Revolving Lender agrees, promptly upon
demand, to purchase a portion of the Revolving Credit Loans held by the other
Revolving Lenders so that after such purchase each Revolving Lender will hold
its pro rata proportion of the Revolving Credit Loans. While no Default or
Unmatured Default exists, if any Swing Loan Lender, whether by setoff or
otherwise, has payment made to it upon its Canadian Swing Loans or Singaporean
Swing Loans (other than payments received pursuant to Section 3.1, 3.2, or 3.5)
in a greater proportion than its ratable share of such Swing Loans, such Swing
Loan Lender agrees, promptly upon demand, to purchase a portion of the Canadian
Swing Loans or Singaporean Swing Loans, as the case may be, held by the other
Swing Loan Lenders so that after such purchase each Canadian Lender or
Singaporean Lender, as the case may be, will hold its ratable proportion of the
Canadian Swing Loans or the Singaporean Swing Loans, as the case may be. While
a Default or an Unmatured Default exists, if any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Section 3.1, 3.2, or 3.5) in a greater proportion than its pro-rata
share of such Loans, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its pro-rata share of Loans. If any Lender, whether in
connection with setoff or amounts
-70-
<PAGE> 77
which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action necessary such
that all Lenders share in the benefits of such collateral ratably in proportion
to their Loans. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made. If an amount to be
setoff is to be applied to Indebtedness of any of the Borrowers to a Lender,
other than Indebtedness evidenced by any of the Notes held by such Lender, such
amount shall be applied ratably to such other Indebtedness and to the
Indebtedness evidenced by such Notes. All calculations to determine a Lender's
share of any Loans in an Alternative Currency under this Section 11.2 shall be
based upon the Dollar Equivalent of such Alternative Currency.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (a) none
of the Borrowers shall have the right to assign its rights or obligations under
the Loan Documents and (b) any assignment by any Lender must be made in
compliance with Section 12.3. Notwithstanding clause (b) of this Section, any
Lender may at any time, without the consent of the Borrowers or the Agent,
assign all or any portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment to a Federal
Reserve Bank shall release the transferor Lender from its obligations
hereunder. The Agent may treat the payee of any Note as the owner thereof for
all purposes hereof unless and until such payee complies with Section 12.3 in
the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Agent. Any assignee or
transferee of a Note agrees by acceptance thereof to be bound by all the terms
and provisions of the Loan Documents. Any request, authority, or consent of
any Person, who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee, or assignee of such Note or of any Note or Notes
issued in exchange therefor.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities excluding entities classified
by SIC code 3533 ("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Loan Documents, all amounts payable by the
Borrowers under this Agreement
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<PAGE> 78
shall be determined as if such Lender had not sold such participating
interests, and the Borrowers and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification,
or waiver of any provision of the Loan Documents other than any amendment,
modification, or waiver which effects any of the modifications referenced in
clauses (a) through (g) of Section 8.4.
12.2.3 Benefit of Setoff. The Borrowers agree that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents; provided, that each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the amount
of participating interests sold to each Participant; and provided further that
such right of setoff shall not be exercisable until five Business Days after
the date upon which the Borrower receives written notice of the fact that such
Participant is a Participant (it being understood that neither the Agent, the
Lender granting such participation nor the Participant shall be obligated to
give such notice). The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1, agrees
to share with each Lender, any amount received pursuant to the exercise of its
right of setoff, such amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights
and obligations under the Loan Documents; provided, however, that in the case
of an assignment to an entity which is not a Lender or an Affiliate of a
Lender, such assignment shall be in a minimum amount of (a) $10,000,000 or (b)
all of such Lender's Revolving Credit Commitment and Loans. A Lender making an
assignment shall also assign or cause such Lender's affiliate, if any, who is a
Swing Loan Lender to assign a portion of such Swing Loan Lender's Swing Loans
to the assignee or an appropriate affiliate of the assignee equal to the same
portion of the Revolving Credit Commitments and Revolving Credit Loans sold to
such Assignee. No Swing Loan Lender may assign any portion of its Swing Loans
unless it or its affiliate which is a Revolving Lender assigns the same portion
of such Revolving Lender's Revolving Credit Commitments and Revolving Credit
Loans to the Person or an affiliate of the Person purchasing the assignment
from such Swing Loan Lender Such assignment shall be substantially in the form
of Exhibit H or in such other form as may be agreed to by the parties thereto.
The consent of the Agent and, so long as no Default is continuing, the Borrower
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof. Such consent shall
not be unreasonably withheld.
12.3.2 Effect; Effective Date. Upon (a) delivery to the Agent of a
notice of assignment, substantially in the form attached as Exhibit I to
Exhibit H (a "Notice of Assignment"), together with
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<PAGE> 79
any consents required by Section 12.3.1 and (b) payment of a $4,000 fee to the
Agent for processing such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment. On and after the
effective date of such assignment, (a) such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto, and
(b) the transferor Lender shall be released with respect to the percentage of
the Aggregate Revolving Credit Commitment and Loans assigned to such Purchaser
without any further consent or action by the Borrowers, the Lenders, or the
Agent. Upon the consummation of any assignment to a Purchaser pursuant to this
Section 12.3.2, the transferor Lender, the Agent, and the Borrowers shall make
appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Total Commitment, as adjusted pursuant to such assignment.
12.4 Dissemination of Information. The Borrowers authorize each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee (which, in each case, has agreed
to be bound by the provisions of Section 9.16) any and all information in such
Lender's possession concerning the creditworthiness of the Borrowers and the
Subsidiaries.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.22(b).
ARTICLE XIII
NOTICES
13.1 Giving Notice. Except as otherwise permitted by Section 2.17
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing, by facsimile, first class U.S. mail or overnight courier
and addressed or delivered to such party at its address set forth below its
signature hereto or at such other address as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly addressed
with first class postage prepaid, return receipt requested, shall be deemed
given three Business Days after deposit in the U.S. mail; any notice, if
transmitted by facsimile, shall be deemed given when transmitted; and any
notice given by overnight courier shall be deemed given when received by the
addressee.
13.2 Change of Address. The Borrowers, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing to
the other parties hereto.
[signature pages to follow]
-73-
<PAGE> 80
IN WITNESS WHEREOF, the Borrowers, the Lenders, the Agent, and the Co-
Agents have executed this Agreement as of the date first above written.
COOPER CAMERON CORPORATION
By:
------------------------------------------
Daniel P. Keenan
Vice President & Treasurer
Address: 515 Post Oak Boulevard,
Suite 1200
Houston, Texas 77027
Attn: Daniel P. Keenan
Vice President &
Treasurer
Telecopy: (713) 513-3355
Telephone: (713) 513-3336
COOPER CAMERON (U.K.) LIMITED
CAMERON FRANCE, S.A.
CAMERON GMBH
COOPER CAMERON (SINGAPORE) PTE.
LTD.
By:
------------------------------------------
Daniel P. Keenan
Attorney-in-fact
Address: 515 Post Oak Boulevard,
Suite 1200
Houston, Texas 77027
Attn: Daniel P. Keenan
Vice President and
Treasurer
Telecopy: (713) 513-3355
Telephone: (713) 513-3336
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<PAGE> 81
REVOLVING LENDERS:
Commitments
-----------
Revolving Credit THE FIRST NATIONAL BANK OF
Commitment CHICAGO, Individually and as Agent
$46,000,000.00
By:
------------------------------------------
Dixon P. Schultz
Vice President
Address: 1100 Lousiana, Suite 3200
Houston, Texas 77002
Attn: Ms. Dixon P. Schultz
Vice President
Telecopy: (713) 654-7329
Telephone: (713) 654-7370
-75-
<PAGE> 82
Revolving Credit ABN AMRO BANK N.V.,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Ms. Cheryl I. Lipshutz
Group Vice President
Telecopy: (713) 629-7533
Telephone: (713) 964-3351
Telex: 6868916 ABN INTL HOU
-76-
<PAGE> 83
Revolving Credit BANK OF AMERICA ILLINOIS,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
J. Stephen Mernick
Senior Vice President
Address: 333 Clay Street, Suite 4550
Houston, Texas 77002-4103
Attn: Mr. J. Stephen Mernick
Senior Vice President
Telecopy: (713) 651-4808
Telephone: (713) 651-4830
-77-
<PAGE> 84
Revolving Credit THE BANK OF NOVA SCOTIA,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street N.E.
Suite 2700
Atlanta, Georgia 30308
Attn: Jeff Lents
Telex: 00542319
Telecopy: (404) 888-8998
Telephone: (404) 877-1559
-78-
<PAGE> 85
Revolving Credit THE CHASE MANHATTAN BANK,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 1 Chase Manhattan Plaza
3rd Floor
New York, New York 10081
Attn: Ms. Mary Jo Woodford
Telephone: (212) 552-5517
With a copy to:
707 Travis
Houston, Texas 77002
Attn: Ms. Mona Foch
Vice President
Telecopy: (713) 216-4227
Telephone: (713) 216-5911
-79-
<PAGE> 86
Revolving Credit CREDIT LYONNAIS, NEW YORK BRANCH,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: c/o Credit Lyonnais Houston
Representative Office
1000 Louisiana, Suite 5360
Houston, Texas 77002
Attn: Mr. David Gurghigian
Telecopy: (713) 751-0307 or
(713) 751-0421
Telephone: (713) 753-8709
-80-
<PAGE> 87
Revolving Credit NATIONSBANK OF TEXAS, N.A.,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: NationsBank of Texas, N.A.
Energy Finance Division
700 Louisiana
8th Floor
Houston, Texas 77002
Attn: Mr. James R. Allred
Telecopy: (713) 247-6568
Telephone: (713) 247-6327
-81-
<PAGE> 88
Revolving Credit PNC BANK, NATIONAL ASSOCIATION,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Attn: Mr. John Way
Telecopy: (412) 762-2571
Telephone: (412) 762-5290
-82-
<PAGE> 89
Revolving Credit ROYAL BANK OF CANADA,
Commitment individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 600 Wilshire Boulevard
Suite 800
Los Angeles, California 90017
Attn: Mr. J. D. Frost
Senior Manager
Telecopy: (213) 955-5350
Telephone: (213) 955-5310
-83-
<PAGE> 90
Revolving Credit SOCIETE GENERALE, SOUTHWEST
Commitment AGENCY, individually and as a Co-Agent
$39,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 1111 Bagby, Suite 2020
Houston, Texas 77002
Attn: Mr. Thierry Namuroy
Telecopy: (713) 650-0824
Telephone: (713) 759-6316
-84-
<PAGE> 91
Revolving Credit AUSTRALIA AND NEW ZEALAND
Commitment BANKING GROUP LIMITED
$26,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 1177 Avenue of the Americas
New York, NY 10036-2798
Attn: Mr. Kyle Loughlin
Telecopy: (212) 801-9131
Telephone: (212) 801-9853
Telex: 667559-420686
-85-
<PAGE> 92
Revolving Credit COMMERZBANK AG, ATLANTA AGENCY
Commitment
$26,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 1230 Peachtree Street, NE
Suite 3500
Atlanta, Georgia 30309
Attn: Mr. David Suttles
Telecopy: (404) 888-6539
Telephone: (404) 888-6524
-86-
<PAGE> 93
Revolving Credit NATIONAL WESTMINSTER BANK PLC
Commitment
$26,000,000.00
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 175 Water Street
Floor 19
New York, New York 10038
Attn: Mr. Paul Carter
Vice President and
Manager
Telecopy: (212) 602-4118
Telephone: (212) 602-4249
Aggregate Revolving Credit
Commitment: $475,000,000.00
-87-
<PAGE> 94
CANADIAN LENDERS:
Commitments
-----------
Canadian Swing Loan FIRST CHICAGO NBD CANADA
Amount
$6,666,666.68
By:
------------------------------------------
Helen A. Carr
Attorney-in-fact
Address: 1100 Lousiana, Suite 3200
Houston, Texas 77002
Attn: Ms. Dixon P. Schultz
Vice President
Telecopy: (713) 654-7329
Telephone: (713) 654-7370
-88-
<PAGE> 95
Canadian Swing Loan ABN AMRO BANK CANADA/BANQUE
Amount ABN AMRO DU CANADA
$3,333,333.33
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Ms. Cheryl I. Lipshutz
Group Vice President
Telecopy: (713) 629-7533
Telephone: (713) 964-3351
Telex: 6868916 ABN INTL HOU
-89-
<PAGE> 96
Canadian Swing Loan BANK OF AMERICA CANADA
Amount
$3,333,333.33
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 855 2nd Street SW, Suite 1900
Calgary, Alberta T2P 4J7
Attn: D. B. Linkletter
Vice President and
Manager
Telecopy: (403) 232-8848
Telephone: (403) 269-4909
-90-
<PAGE> 97
Canadian Swing Loan THE BANK OF NOVA SCOTIA
Amount
$3,333,333.33
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street N.E.
Suite 2700
Atlanta, Georgia 30308
Attn: Jeff Lents
Telex: 00542319
Telecopy: (404) 888-8998
Telephone: (404) 877-1559
-91-
<PAGE> 98
[PAGE INTENTIONALLY LEFT BLANK]
-92-
<PAGE> 99
Canadian Swing Loan ROYAL BANK OF CANADA
Amount
$3,333,333.33
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: Royal Bank Plaza
200 Bay Street, 13th Floor
South Tower
Toronto, Ontario M5J 2J5
Attn: Jan Archibald
Senior Account Manager
Telecopy: (416) 974-2249
Telephone: (416) 974-6685
Aggregate Canadian Swing
Loan Amount: $20,000,000.00
-93-
<PAGE> 100
SINGAPOREAN LENDERS:
Commitments
-----------
Singaporean Swing Loan THE FIRST NATIONAL BANK OF
Amount CHICAGO
$5,714,285.75
By:
------------------------------------------
Dixon P. Schultz
Vice President
Address: 1100 Lousiana, Suite 3200
Houston, Texas 77002
Attn: Ms. Dixon P. Schultz
Vice President
Telecopy: (713) 654-7329
Telephone: (713) 654-7370
-94-
<PAGE> 101
Singaporean Swing Loan ABN AMRO BANK N.V.
Amount
$2,857,142.85
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Ms. Cheryl I. Lipshutz
Group Vice President
Telecopy: (713) 629-7533
Telephone: (713) 964-3351
Telex: 6868916 ABN INTL HOU
-95-
<PAGE> 102
Singaporean Swing Loan BANK OF AMERICA NT & SA,
Amount SINGAPORE BRANCH
$2,857,142.85
By:
------------------------------------------
J. Stephen Mernick
Senior Vice President
Address: 78 Shenton Way No. 20-00
Singapore, Republic of
Singapore
Attn: Ms. Anna Lim
Telecopy: 65 2393266
Telephone: 65 2393191
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<PAGE> 103
Singaporean Swing Loan THE BANK OF NOVA SCOTIA
Amount
$2,857,142.85
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street N.E.
Suite 2700
Atlanta, Georgia 30308
Attn: Jeff Lents
Telex: 00542319
Telecopy: (404) 888-8998
Telephone: (404) 877-1559
-97-
<PAGE> 104
[PAGE INTENTIONALLY LEFT BLANK]
-98-
<PAGE> 105
Singaporean Swing Loan NATIONSBANK OF TEXAS, N.A.
Amount
$2,857,142.85
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: NationsBank of Texas, N.A.
Energy Finance Division
700 Louisiana
8th Floor
Houston, Texas 77002
Attn: Mr. James R. Allred
Telecopy: (713) 247-6568
Telephone: (713) 247-6327
-99-
<PAGE> 106
Singaporean Swing Loan ROYAL BANK OF CANADA, SINGAPORE
Amount BRANCH
$2,857,142.85
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Address: 140 Cecil Street, #01-00
PIL Building
Republic Singapore 0106
Attn: Ms. Diana Lowe
Telecopy: 0086-065-224-7311
Telephone: 0086-065-222-2768
Aggregate Singaporean Swing
Loan Amount: $20,000,000.00
-100-
<PAGE> 107
EXHIBIT A
NOTE
(COMPETITIVE BID LOAN)
__________, ____
Cooper Cameron Corporation, a Delaware corporation (the
"Borrower"), promises to pay to the order of _____________________"Lender")
the aggregate unpaid principal amount of all Competitive Bids Loans made by the
Lender to the Borrower pursuant to Section 2.8 of the Agreement (as hereinafter
defined), in immediately available funds at the main office of The First
National Bank of Chicago in Chicago, Illinois, as Agent, together with interest
on the unpaid principal amount hereof at the rates and on the dates determined
pursuant to the Agreement. The Borrower shall pay the principal of and accrued
and unpaid interest on the Competitive Bid Loans evidenced hereby in full on
the maturity date thereof.
The Lender shall record in accordance with its usual practice,
the date, amount, applicable interest rate or margin and Interest Period of
each Competitive Bid Loan and the date and amount of each principal payment
hereunder; provided, however, that neither the failure to so record nor any
error in this recordation shall affect the Borrower's obligations under this
Note.
This Note (Competitive Bid Loan) is one of the Notes issued
pursuant to, and is entitled to the benefits of, the Amended and Restated
Credit Agreement, dated as of March 20, 1997(as the same may be amended or
modified and in effect from time to time, the "Agreement"), among the Borrower,
Cooper Cameron (U.K.) Limited, Cameron France, S.A., Cameron GmbH, Cooper
Cameron (Singapore) Pte. Ltd., the financial institutions named therein
(including the Lender), the Co-Agents named therein, and The First National
Bank of Chicago, individually and as Agent, to which Agreement reference is
hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not otherwise
defined herein are used with the meanings attributed to them in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note (Competitive Bid Loan).
<PAGE> 108
THIS NOTE (COMPETITIVE BID LOAN) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF
LAWS PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
COOPER CAMERON CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 109
EXHIBIT B
COMPETITIVE BID QUOTE
(Section 2.8.4)
_____________ ___, ____
To: The First National Bank of Chicago, as Agent
Attn: Lilian Arroyo
Financial Services Department
Fax No.: (312) 732-4033
Re: Competitive Bid Quote to Cooper Cameron Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_______________ ___, ____, we hereby make the following Competitive Bid Quote
pursuant to Section 2.8.4 of the Credit Agreement hereinafter referred to and
on the following terms:
1. Quoting Lender: _________________________________
2. Person to contact at Quoting Lender: _______________________
3. Borrowing Date: ____________________ ____, _________1
4. We hereby offer to make Competitive Bid Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest [Competitive [Absolute Minimum
Amount2 Period3 Bid Margin4] Rate5] Amount6
-------- -------- ------------ --------- --------
$
_____________________________________
1 As specified in the related Invitation.
2 Principal amount bid for each Interest Period may not exceed principal
amount requested. Bids must be made for at least $10,000,000 and an
integral multiple of $1,000,000.
3 One, two, three or six months (Eurodollar Auction) or at least 30 and up
to 180 days (Absolute Rate Auction), as specified in the related
Invitation.
4 Competitive Bid Margin over or under the Eurocurrency Base Rate
determined for the applicable Interest Period. Specify percentage
(rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
"MINUS".
5 Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
6 Specify minimum amount which the Borrower may accept (see Section
2.8.4(b)(iv)).
<PAGE> 110
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Amended and
Restated Credit Agreement (as the same may be amended or modified and in effect
from time to time, the "Credit Agreement") dated as of March 20, 1997 among the
Borrower, Cooper Cameron (U.K.) Limited, Cameron France, S.A., Cameron GmbH,
Cooper Cameron (Singapore) Pte. Ltd., the financial institutions named therein,
the Co-Agents named therein, and yourself, individually and as Agent,
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part.
Capitalized terms used herein and not otherwise defined herein are
used with the meanings attributed to them in the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
Dated: , By:
------------- --- ------ ---------------------------
Authorized Officer
2
<PAGE> 111
EXHIBIT C
COMPETITIVE BID QUOTE REQUEST
(Section 2.8.2)
_____________ ___, ____
To: The First National Bank of Chicago,
as agent (the "Agent")
From: Cooper Cameron Corporation ("Borrower")
Re: Amended and Restated Credit Agreement dated as of March 20,
1997 among the Borrower, Cooper Cameron (U.K.) Limited, Cameron
France, S.A., Cameron GmbH, Cooper Cameron (Singapore) Pte.
Ltd., the financial institutions named therein, the Co-Agents
named therein and The First National Bank of Chicago,
individually and as Agent (as from time to time amended, the
"Agreement")
We hereby give notice pursuant to Section 2.8.2 of the Agreement that
we request Competitive Bid Quotes for the following proposed Competitive Bid
Advance(s):
Borrowing Date: ________________ ___,________
Principal Amount: $ [1]
---------
Interest Period: [2]
---------
Such Competitive Bid Quotes should offer a [Competitive Bid Margin]
[Absolute Rate].
Upon acceptance by the undersigned of any or all of the Competitive
Bid Advances offered by Lenders in response to this request, the undersigned
shall be deemed to affirm as of such date the representations and warranties
made in the Agreement to the extent specified in Section 4.2 thereof.
Capitalized terms used herein have the meanings assigned to them in the
Agreement.
COOPER CAMERON CORPORATION
By:
--------------------------------
Title:
-----------------------------
1 Amount must be at least $10,000,000 and an integral multiple of
$1,000,000.
2 One, two, three or six months (Eurodollar Auction) or at least 30
and up to 180 days (Absolute Rate Auction), subject to the provisions
of the definitions of Eurocurrency Interest Period and Absolute Rate
Interest Period.
<PAGE> 112
EXHIBIT D
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.8.3)
________________ ___, _____
To: [Name of Lender]
Re: Invitation for Competitive Bid Quotes to
Cooper Cameron Corporation (the "Borrower")
Pursuant to Section 2.8.3 of the Amended and Restated Credit Agreement
dated as of March 20, 1997 (as from time to time amended, the "Agreement")
among the Borrower, Cooper Cameron (U.K.) Limited, Cameron France, S.A.,
Cameron GmbH, Cooper Cameron (Singapore) Pte. Ltd., the financial institutions
named therein, the Co-Agents named therein and the undersigned, individually
and as Agent, we are pleased on behalf of the Borrower to invite you to submit
Competitive Bid Quotes to the Borrower for the following proposed Competitive
Bid Advance(s):
Borrowing Date: ___________________ ___, ______
Principal Amount: $___________
Interest Period: ___________
Such Competitive Bid Quotes should offer a [Competitive Bid Margin]
[Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.8.4 of
the Agreement and the foregoing terms in which the Competitive Bid Quote
Request was made. Capitalized terms used herein have the meanings assigned to
them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. Chicago
time on ________________, ____.
THE FIRST NATIONAL BANK OF CHICAGO, as Agent
By:
--------------------------------------
Authorized Officer
<PAGE> 113
EXHIBIT E
REVOLVING CREDIT NOTE
$_______________________ Dated: ___________, ____
FOR VALUE RECEIVED, _______________________ (the "Borrower") HEREBY PROMISES TO
PAY to the order of ______________________ (the "Lender") the principal sum of
________________________ United States Dollars ($__________) or, if less, the
aggregate unpaid principal amount of the Revolving Credit Loans made by the
Lender to the Borrower pursuant to Section 2.1 of the Credit Agreement (as
hereinafter defined), on or before the Facility Termination Date; together, in
each case, with interest on any and all principal amounts remaining unpaid
hereunder from time to time. Interest upon the unpaid principal amount hereof
shall accrue at the rates, shall be calculated in the manner and shall be
payable on the dates set forth in the Credit Agreement. After maturity, whether
by acceleration or otherwise, accrued interest shall be payable upon demand.
Both principal and interest shall be payable in Dollars or the applicable
Alternative Currency determined in accordance with the Credit Agreement to The
First National Bank of Chicago, as Agent (the "Agent") on behalf of the Lender,
at the appropriate office specified in the Credit Agreement, in immediately
available funds. The Revolving Credit Loans made by the Lender to the Borrower
pursuant to the Credit Agreement and all payments on account of principal hereof
shall be recorded by the Lender in accordance with its usual practices;
provided, however, that the failure to so record shall not affect the Borrower's
obligations under this Revolving Credit Note.
This Revolving Credit Note is a Revolving Credit Note referred
to in, and is entitled to the benefits of, the Amended and Restated Credit
Agreement dated as of March 20, 1997 among Cooper Cameron Corporation, Cooper
Cameron (U.K.) Limited, Cameron France, S.A., Cameron GmbH, Cooper Cameron
(Singapore) Pte. Ltd., the financial institutions named therein (including the
Lender), the Co-Agents named therein, and The First National Bank of Chicago,
individually and as Agent (as amended, modified or supplemented from time to
time, the "Credit Agreement") and the other Loan Documents. Capitalized terms
used but not otherwise defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Revolving Credit Note.
<PAGE> 114
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS
PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
[BORROWER]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
2
<PAGE> 115
EXHIBIT F-1
SINGAPOREAN SWING LOAN NOTE
$___________________________ Dated: ____________, ____
FOR VALUE RECEIVED, Cooper Cameron (Singapore) Pte. Ltd. (the
"Borrower") HEREBY PROMISES TO PAY to the order of ____________________ (the
"Lender") the principal sum of _____________________ United States Dollars
($__________) or, if less, the aggregate unpaid principal amount of the
Singaporean Swing Loans made by the Lender to the Borrower pursuant to Section
2.2 of the Credit Agreement (as hereinafter defined), on or before the Facility
Termination Date; together, in each case, with interest on any and all principal
amounts remaining unpaid hereunder from time to time. Interest upon the unpaid
principal amount hereof shall accrue at the rates, shall be calculated in the
manner and shall be payable on the dates set forth in the Credit Agreement.
After maturity, whether by acceleration or otherwise, accrued interest shall be
payable upon demand. Both principal and interest shall be payable in Dollars or
the applicable Alternative Currency determined in accordance with the Credit
Agreement to The First National Bank of Chicago, as Agent (the "Agent") on
behalf of the Lender, at its main office in Chicago, Illinois in immediately
available funds. The Singapore Swing Loans made by the Lender to the Borrower
pursuant to the Credit Agreement and all payments on account of principal hereof
shall be recorded by the Lender in accordance with its usual practices;
provided, however, that the failure to so record shall not affect the Borrower's
obligations under this Singapore Swing Loan Note.
This Singapore Swing Loan Note is a Singapore Swing Loan Note
referred to in, and is entitled to the benefits of, the Amended and Restated
Credit Agreement dated as of March 20, 1997 among Cooper Cameron Corporation,
Cooper Cameron (U.K.) Limited, Cameron France, S.A., Cameron GmbH, the
Borrower, the financial institutions named therein (including the Lender), the
Co-Agents named therein, and The First National Bank of Chicago, individually
and as Agent (as amended, modified or supplemented from time to time, the
"Credit Agreement") and the other Loan Documents. Capitalized terms used but
not otherwise defined herein shall have the respective meanings ascribed
thereto in the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Singapore Swing Loan Note.
<PAGE> 116
THIS SINGAPORE SWING LOAN NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF
LAWS PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
COOPER CAMERON (SINGAPORE) PTE. LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
2
<PAGE> 117
EXHIBIT F-2
CANADIAN SWING LOAN NOTE
$___________________________ Dated: ____________, ____
FOR VALUE RECEIVED, ________________________________ (the
"Borrower") HEREBY PROMISES TO PAY to the order of __________________ (the
"Lender") the principal sum of _____________________ United States Dollars
($__________) or, if less, the aggregate unpaid principal amount of the Canadian
Swing Loans made by the Lender to the Borrower pursuant to Section 2.3 of the
Credit Agreement (as hereinafter defined), on or before the Facility Termination
Date; together, in each case, with interest on any and all principal amounts
remaining unpaid hereunder from time to time. Interest upon the unpaid principal
amount hereof shall accrue at the rates, shall be calculated in the manner and
shall be payable on the dates set forth in the Credit Agreement. After
maturity, whether by acceleration or otherwise, accrued interest shall be
payable upon demand. Both principal and interest shall be payable in the
Alternative Currency determined in accordance with the Credit Agreement to The
First National Bank of Chicago, as Agent (the "Agent") on behalf of the Lender,
at its main office in Chicago, Illinois in immediately available funds. The
Canadian Swing Loans made by the Lender to the Borrower pursuant to the Credit
Agreement and all payments on account of principal hereof shall be recorded by
the Lender in accordance with its usual practices; provided, however, that the
failure to so record shall not affect the Borrower's obligations under this
Canadian Swing Loan Note.
This Canadian Swing Loan Note is a Canadian Swing Loan Note
referred to in, and is entitled to the benefits of, the Amended and Restated
Credit Agreement dated as of March 20, 1997 among the Borrower, Cooper Cameron
(U.K.) Limited, Cameron France, S.A., Cameron GmbH, Cooper Cameron (Canadian)
Pte. Ltd., the financial institutions named therein (including the Lender), the
Co-Agents named therein, and The First National Bank of Chicago, individually
and as Agent (as amended, modified or supplemented from time to time, the
"Credit Agreement") and the other Loan Documents. Capitalized terms used but
not otherwise defined herein shall have the respective meanings ascribed
thereto in the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Canadian Swing Loan Note.
<PAGE> 118
THIS CANADIAN SWING LOAN NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF
LAWS PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
2
<PAGE> 119
EXHIBIT G
COMPLIANCE CERTIFICATE
I, _________________ certify that I am the _____________ of
Cooper Cameron Corporation (the "Borrower"), and that as such I am authorized
to execute this Compliance Certificate on behalf of the Borrower, and DO HEREBY
FURTHER CERTIFY on behalf of the Borrower that:
1. I have reviewed the terms of that certain Amended and Restated
Credit Agreement, dated as of March 20, 1997, among the Borrower, Cooper
Cameron (U.K.) Limited, Cameron France, S.A., Cameron GmbH, Cooper Cameron
(Singapore) Pte. Ltd., the financial institutions named therein (the
"Lenders"), the Co-Agents named therein, and The First National Bank of
Chicago, individually and as Agent (the "Agent") (as amended, supplemented or
modified from time to time, the "Credit Agreement") and I have made, or have
caused to be made by employees or agents under my supervision, a detailed
review of the transactions and conditions of the Borrower and the Borrowing
Subsidiaries (as this and other capitalized terms not defined herein are
defined in the Credit Agreement) during the accounting period covered by the
attached financial statements;
2. The examinations described in paragraph 1 did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the
date of this Compliance Certificate[, except as set forth below]; and
3. Schedule I attached hereto sets forth financial data and
computations evidencing compliance with the covenants set forth in Sections
6.10, 6.12, 6.14, 6.15, and 6.19 of the Credit Agreement, all of which data and
computations are true, complete and correct.
[Described below are the exceptions, if any, to paragraph 2,
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
------------------------------------------------
------------------------------------------------
------------------------------------------------
-----------------------------------------------]
<PAGE> 120
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Compliance Certificate in support hereof, are made and delivered this ______
day of ______________, ____.
COOPER CAMERON CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
2
<PAGE> 121
SCHEDULE I
SECTION 6.10 -- INDEBTEDNESS OF SUBSIDIARIES ($MILLIONS)
------------ ---------------------------- -----------
(a) Indebtedness of Subsidiaries (other than
Indebtedness owed by one of the Borrower's Wholly-
owned Subsidiaries to the Borrower or to another
Wholly-owned Subsidiary or Rate Hedging Obligation),
(b) Contingent Obligations in respect of a Person other
than the Borrower or another Subsidiary, (c) Attributable
Debt as lessor or guarantor under Synthetic Leases,
and (d) Attributable Debt as seller, originator, or
guarantor under accounts or notes receivable financing
or securitization programs
PERMITTED MAXIMUM $150,000,000
ACTUAL ------------
SECTION 6.12 -- SALE OF ASSETS
------------ --------------
Asset dispositions of the Borrower and its
Subsidiaries to any Person other than the
Borrower or a Subsidiary Guarantor for period
from March 20, 1997 to date of determination:
PERMITTED MAXIMUM ------------
greater of (a) $300,000,000 and (b) 20% of
consolidated assets of the Borrower and its
Subsidiaries as of the end of the quarter next
preceding the date of determination
ACTUAL ------------
<PAGE> 122
SECTION 6.14 -- INVESTMENTS IN FOREIGN SUBSIDIARIES
PERMITTED MAXIMUM
5% of Borrower's consolidated net assets or $75,000,000
$
ACTUAL ------------
Amount of net equity (i.e., cash contributed net of
cash dividends and cash redemptions received) invested
by the Borrower and the Subsidiaries in Foreign
Subsidiaries organized or headquartered in a non-
Investment Grade Country
Plus, all outstanding Indebtedness owing to the Borrower
and the Subsidiaries by the Foreign Subsidiaries
organized or headquartered in a non-Investment
Grade Country ------------
Equals, total actual
------------
2
<PAGE> 123
SECTION 6.15(f) -- LIENS
Indebtedness secured by Liens (other than as permitted by Section
6.15(a)-(e))
PERMITTED MAXIMUM
Net Worth of the Borrower and the Subsidiaries -----------
Times, 10% x 10%
-----------
Equals, total permitted maximum
-----------
ACTUAL -----------
3
<PAGE> 124
SECTION 6.19.1 -- COVERAGE RATIO
REQUIRED MINIMUM 2.5x
ACTUAL
Net Income (excluding for the period from June 30, 1995
through June 30, 1997, the effect of pre-tax Restructuring
Charges of up to $40,000,000)*
--------------
Plus, income and franchise taxes accrued and
deducted in the determination of Net Income*
--------------
Plus, Interest Expense*
--------------
Plus, amortization and depreciation deducted in the
determination of Net Income*
--------------
Equals, EBITDA
--------------
Minus, Capital Expenditures*
--------------
Equals, ratio numerator
--------------
Divided by, Interest Expense*
--------------
Equals, actual coverage ratio x
--------------
* for the Borrower and its Subsidiaries on a consolidated basis for
the four fiscal quarters ending on the date of determination
4
<PAGE> 125
SECTION 6.19.2 -- TOTAL DEBT TO TOTAL CAPITALIZATION RATIO ($ MILLIONS)
-------------- ---------------------------------------- ------------
PERMITTED MAXIMUM 50%*
ACTUAL
Total Debt ------------
Plus, Stockholders' Equity ------------
Equals, Total Capitalization ------------
Actual ratio of Total Debt to Total Capitalization -----------%
*May increase to up to 60% for up to one year after the date of a Specified
Acquisition approved by the board of directors (or functional equivalent
thereof) of the acquired business; provided that, prior to effecting any such
acquisition, the Borrower provides the Agent and the Lenders financial
projections covering the 12 months beginning on or about the date of such
acquisition and showing that (a) the financing of such acquisition will not
otherwise cause any Default or Unmatured Default during such period and (b)
the ratio of Total Debt to Capitalization will be 50% or less with such
12-month period.
5
<PAGE> 126
EXHIBIT H
FORM OF
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
________________________ (the "Assignor") and _______________________ (the
"Assignee") is dated as of ____________________, ____. The parties hereto
agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, supplemented, modified, renewed
or extended from time to time is herein called the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto. Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed thereto in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement such that after giving effect to such assignment the Assignee
shall have purchased pursuant to this Assignment Agreement the percentage
interest specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement relating to the Loans and the other Loan
Documents. [The aggregate Revolving Credit Commitment (or Revolving Credit
Loans and Letter of Credit Exposure, if the applicable Revolving Credit
Commitment has been terminated) purchased by the Assignee hereunder is set
forth in Item 4 of Schedule 1.] [The aggregate Swing Loans purchased by the
Assignee hereunder is set forth in Item 4 of Schedule I.]
3. EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period agreed to by
the Agent) after a Notice of Assignment substantially in the form of Exhibit I
attached hereto has been delivered to the Agent. Such Notice of Assignment
must include any consents required to be delivered to the Agent pursuant to
Section 12.3.1 of the Credit Agreement. In no event will the Effective Date
occur if the payments required to be made by the Assignee to the Assignor on
the Effective Date under Section 4 hereof are not made on the proposed
Effective Date. The Assignor will notify the Assignee of the proposed
Effective Date no later than the Business Day prior to the proposed Effective
Date. As of the Effective Date, (a) the Assignee shall have the rights and
obligations of a Lender under the Loan Documents with respect to the rights and
obligations assigned to the Assignee hereunder, and (b) the Assignor shall
relinquish its rights and be released from its corresponding obligations under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder.
<PAGE> 127
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all payments of principal,
interest and fees with respect to the interest assigned hereby. The Assignee
shall advance funds directly to the Agent with respect to all Loans and
reimbursement payments made on or after the Effective Date with respect to the
interest assigned hereby. In consideration for the sale and assignment of
Loans hereunder, (a) the Assignee shall pay the Assignor, on the Effective
Date, an amount equal to the principal amount of the portion of all Floating
Rate Advances assigned to the Assignee hereunder, and (b) with respect to each
Eurocurrency Loan [and Singaporean Rate Loan] made by the Assignor and assigned
to the Assignee hereunder which is outstanding on the Effective Date, (i) on
the last day of the Interest Period therefor, (ii) on such earlier date agreed
to by the Assignor and the Assignee, or (iii) on the date on which any such
Eurocurrency Loan [and Singaporean Rate Loan] either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the
foregoing clauses (i), (ii) or (iii) being hereinafter referred to as the
"Payment Date"), the Assignee shall pay the Assignor an amount equal to the
principal amount of the portion of such Eurocurrency Loan [and Singaporean Rate
Loan] assigned to the Assignee which is outstanding on the Payment Date. If
the Assignor and the Assignee agree that the Payment Date for such Eurocurrency
Loan [and Singaporean Rate Loan] shall be the Effective Date, they shall agree
to the interest rate applicable to the portion of such Eurocurrency Loan [and
Singaporean Rate Loan] assigned hereunder for the period from the Effective
Date to the end of the existing Interest Period applicable to such Eurocurrency
Loan [and Singaporean Rate Loan] (the "Agreed Interest Rate") and any interest
received by the Assignee in excess of the Agreed Interest Rate shall be
remitted to the Assignor. In the event interest for the period from the
Effective Date to but not including the Payment Date is not paid by the
Borrower with respect to any Eurocurrency Loan [or Singaporean Rate Loan] sold
by the Assignor to the Assignee hereunder, the Assignee shall pay to the
Assignor interest for such period on the portion of such Eurocurrency Loan [or
Singaporean Rate Loan] sold by the Assignor to the Assignee hereunder at the
applicable rate provided by the Credit Agreement. In the event a prepayment of
any Eurocurrency Loan [or Singaporean Rate Loan] which is existing on the
Payment Date and assigned by the Assignor to the Assignee hereunder occurs
after the Payment Date but before the end of the Interest Period applicable to
such Eurocurrency Loan [or Singaporean Rate Loan], the Assignee shall remit to
the Assignor the excess of the amount paid under Section 3.5 of the Credit
Agreement with respect to the portion of such Eurocurrency Loan [or Singaporean
Rate Loan] assigned to the Assignee hereunder over the amount which would have
been paid if such amount paid under Section 3.5 of the Credit Agreement was
calculated based on the Agreed Interest Rate. The Assignee will also promptly
remit to the Assignor (x) any principal payments received from the Agent with
respect to Eurocurrency Loans [and Singaporean Rate Loans] prior to the Payment
Date, and (y) any amounts of interest on Loans and fees received from the Agent
which relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date, in the case of Floating Rate Loans, or the
Payment Date, in the case of Eurocurrency Loans and Singaporean Rate Loans, and
not previously paid by the Assignee to the Assignor. In the event that either
party hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.
2
<PAGE> 128
5. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (a) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectibility of any Loan Document, (b) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (c) the financial condition or creditworthiness of any Borrower
or any guarantor, (d) the performance of or compliance with any of the terms or
provisions of any of the Loan Documents, (e) inspecting any of the Property,
books or records of any Borrower, (f) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral securing or
purporting to secure the Loans, or (g) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
6. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (a) confirms
that it has received a copy of the Credit Agreement, together with copies of
the financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (b) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (c) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto, (d) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender, (e)
agrees that its payment instructions and notice instructions are as set forth
in the attachment to Schedule 1, (f) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its rights,
benefits and interests in and under the Loan Documents will not be "plan
assets" under ERISA, [and (g) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assignee is entitled
to receive payments under the Loan Documents without deduction or withholding
of any United States federal income taxes].*
* to be inserted if the Assignee is not incorporated under the laws of
the United States, or a state thereof.
7. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
The
3
<PAGE> 129
obligations of the Assignee under this Section 7 shall survive the payment of
all amounts hereunder and the termination of this Agreement.
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right pursuant to and in accordance with Section 12.3 of the
Credit Agreement to assign the rights which are assigned to the Assignee
hereunder to any entity or person; provided, that (a) any such subsequent
assignment does not violate any of the terms and conditions of the Loan
Documents or any law, rule, regulation, order, writ, judgment, injunction or
decree and that any consent required under the terms of the Loan Documents has
been obtained, and (b) unless the prior written consent of the Assignor is
obtained, the Assignee is not thereby released from its obligations to the
Assignor hereunder, if any remain unsatisfied, including, without limitation,
its obligations under Sections 4, 6 and 7 hereof.
9. REDUCTIONS OF COMMITMENT. If any reduction in the Aggregate
Revolving Credit Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage interest specified in Item 3
of Schedule 1 shall remain the same, but the dollar amount purchased shall be
recalculated based on the reduced Aggregate Revolving Credit Commitment.
10. ENTIRE AGREEMENT. This Assignment Agreement and the attached
Notice of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between
the parties hereto relating to the subject matter hereof.
11. GOVERNING LAW. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE
OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
12. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the purpose
hereof, the addresses of the parties hereto (until notice of a change is
delivered) shall be the address set forth in the attachment to Schedule 1.
4
<PAGE> 130
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
---------------------------------
Title:
------------------------------
-----------------------------------
-----------------------------------
[NAME OF ASSIGNEE]
By:
---------------------------------
Title:
------------------------------
------------------------------
------------------------------
5
<PAGE> 131
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
That certain Amended and Restated Credit Agreement dated as of
March 20, 1997, as from time to time amended, modified or
otherwise supplemented, among Cooper Cameron Corporation,
Cooper Cameron (U.K.) Limited, Cameron France, S.A., Cameron
GmbH, Cooper Cameron (Singapore) Pte. Ltd., the financial
institutions named therein, the Co-Agents named therein and The
First National Bank of Chicago, individually and as Agent.
2. Date of Assignment Agreement: _____________ ___, ______
3. Amounts (As of Date of Item 2 above):
a. Total of Revolving Commitments (Loans)*
under Credit Agreement $__________
b. Assignee's percentage of the Revolving
Credit (Loans)* Commitments and Letter
of Credit Exposure purchased under
the Assignment Agreement** __________%
c. Total of [Canadian] [Singaporean] Swing
Loans under the Credit Agreement $__________
d. Assignee's percentage of [Canadian]
[Singaporean] Swing Loans purchased
under the Assignment Agreement __________%
4. a. Assignee's aggregate (Loan amount)*
Revolving Credit Commitment amount
purchased hereunder $__________
b. Assignee's aggregate Letter of Credit
Exposure purchased hereunder $__________
c. Assignee's aggregate [Canadian]
[Singaporean] Swing Loans purchased
hereunder $__________
5. Proposed Effective Date: __________
<PAGE> 132
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
---------------------------- --------------------------------
Name: Name:
-------------------------- ------------------------------
Title: Title:
------------------------- ----------------------------
* If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
** Percentage taken to 10 decimal places
2
<PAGE> 133
ATTACHMENT TO SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
<PAGE> 134
EXHIBIT I
TO ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
______________ __, ____
To: Cooper Cameron Corporation
515 Post Oak Boulevard, Suite 1200
Houston, Texas 77027
Attn: Thomas R. Hix, Chief Financial Officer
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to the Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto. Capitalized
terms used herein and not otherwise defined herein or in such consent shall
have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Borrower and the Agent pursuant to Section 12.3.2 of the
Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of _________ _ , ____ (the "Assignment"),
pursuant to which, among other things, the Assignor has sold, assigned,
delegated and transferred to the Assignee, and the Assignee has purchased,
accepted and assumed from the Assignor the percentage interest specified in
Item 3 of Schedule 1 of all outstandings, rights and obligations under the
Credit Agreement relating to the facilities listed in Item 3 of Schedule 1,
including, without limitation, such interest in the Assignor's Revolving Credit
Commitment (if applicable), Letter of Credit Exposure, and the Revolving Credit
Loans owing to the Assignor relating to such facilities [and Swing Loans]. The
effective date of the Assignment (the "Effective Date") shall be the later of
the date specified in Item 5 of Schedule 1 or two Business Days (or such
shorter period as agreed to by the Agent) after this Notice of Assignment and
any consents and fees required by Sections 12.3.1 and 12.3.2 of the Credit
Agreement have been delivered to the Agent; provided, that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
<PAGE> 135
4. The Assignor and the Assignee hereby give to the
Borrower and the Agent notice of the assignment and delegation referred to
herein. The Assignor will confer with the Agent before the date specified in
Item 5 of Schedule 1 to determine if the Assignment Agreement will become
effective on such date pursuant to Section 3 hereof and will confer with the
Agent to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment does not
become effective on any proposed Effective Date as a result of the failure to
satisfy the conditions precedent agreed to by the Assignor and the Assignee.
At the request of the Agent, the Assignor will give the Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on
or before the Effective Date the processing fee of $4,000 required by Section
12.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Agent prepare and cause
the Borrower to execute and deliver new Notes or, as appropriate, replacement
Notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Notes received by it
from the Borrower upon its receipt of new Notes in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. Each party consenting to the Assignment in the space
indicated below hereby releases the Assignor from any obligations to it which
have been assigned to the Assignee. The Assignee hereby represents and
warrants that none of the funds, monies, assets or other consideration being
used to make the purchase pursuant to the Assignment are "plan assets" as
defined under ERISA and that its rights, benefits and interests in and under
the Loan Documents will not be "plan assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent
under the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------ --------------------------
Name: Name:
----------------------- -------------------------
Title: Title:
---------------------- ------------------------
2
<PAGE> 136
ACKNOWLEDGED AND CONSENTED TO ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK OF BY COOPER CAMERON CORPORATION
CHICAGO, as Agent
By: By:
--------------------------- -----------------------------
Name: Name:
------------------------- ---------------------------
Title: Title:
------------------------ --------------------------
[Attach photocopy of Schedule 1 to Assignment]
3
<PAGE> 137
SCHEDULE 2.9
PAYMENT OFFICES
THE FIRST NATIONAL BANK OF CHICAGO
1. US Dollars
The First National Bank of Chicago
Attn: DCS Incoming Clearing Account
One First National Plaza
Chicago, Illinois 60670
Acct. No.: 7521-7653
ABA No.: 071000013
2. British Sterling
Midland Bank PLC - London
International Division
London, ENGLAND
Acct. No.: 35202851
SWIFT Address: MIDLGB22
3. French Francs
Credit Commerciale de France
103 Avenue des Champes-Elysees
Paris, FRANCE
Acct. No.: 00203501611
SWIFT Address: CCFRFRPP
4. Deutsche Marks
Swiss Bank Corporation/
Schweizerscher Bankverein Deutschland
Ulmentrasse 30 (D-6000)
Frankfurt, GERMANY
Acct. No.: 111550-5005
SWIFT Address: SBCODEFF
5. Singapore Dollars
Overseas Union Bank, Limited
60 Robinson Road
Singapore 0106, Singapore
Acct. No.: 1410046515150
SWIFT Address: OUBKSGSG
<PAGE> 138
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
1. US Dollars
Bank of America Illinois
Chicago, Illinois 60697
Acct. No.: 4703421
ABA No.: 071000039
Attn: Loan Department
Ref: Cooper Cameron Corporation
Telephone: (312) 828-4575
Fax: (312) 974-9626
2. British Sterling
Midland Bank PLC
For the Account of Bank of America Illinois
Nassau Account No. 35189445
Ref: Cooper Cameron Corporation
3. French Francs
Banque Paribas, Paris, France
For the Account of Bank of America Illinois
Nassau Account No. 44311B
Ref: Cooper Cameron Corporation
4. Deutsche Marks
Bank of America Frankfurt
For the Account of Bank of America Illinois
Nassau Account No. 15129-008
Ref: Cooper Cameron Corporation
5. Singapore Dollars
Bank of America Singapore
For the Account of Bank of America Illinois
USD A/C 43628-027, SGD A/C 43628-035
SWIFT Address: BOFASG2X
Ref: Cooper Cameron Corporation
2
<PAGE> 139
THE BANK OF NOVA SCOTIA
1. US Dollars
The Bank of Nova Scotia, New York Agency
ABA No.: 026002532
For further credit to Atlanta Agency
Acct. No.: 0606634
Re: Cooper Cameron Corporation
Attn: Cleve Bushey
2. British Sterling
The Bank of Nova Scotia
Scotia House, 33 Finsbury Square
London
Acct. No.: 0992301442
For credit to BNS Toronto - Int'l Banking Division
Ref: Atlanta Agency/Cooper Cameron
SWIFT Address: NOSCGB22
3. French Francs
Credit Commercial de France
Paris
Acct. No.: 002034477221
For credit to BNS Toronto - Int'l Banking Division
Ref: Atlanta Agency/Cooper Cameron
SWIFT Address: CCFRFPPP
4. Deutsche Marks
Deutsche Bank AG Frankfurt
Acct. No.: 100 9510579 0000
For credit to BNS Toronto - Int'l Banking Division
Ref: Atlanta Agency/Cooper Cameron
SWIFT Address: DEUTDEFF
3
<PAGE> 140
5. Singapore Dollars
The Bank of Nova Scotia
Acct. No.: 082/32/80008
Favour Bank of Nova Scotia Toronto
Ref: Atlanta Agency/Cooper Cameron
SWIFT Address: NOSCSGSG
4
<PAGE> 141
THE CHASE MANHATTAN BANK
1. US Dollars
The Chase Manhattan Bank
New York, NY
ABA No.: 021000021
Acct. No.: 900-9-000036
Telephone: (212) 552-7414
Telecopy: (212) 552-5777
2. British Sterling
The Chase Manhattan Bank
London, ENGLAND
Acct. No.: 1200-4677
for Chase Nassau Account
Ref: Cooper-Cameron
Attn: Ruth Tortorici
3. French Francs
Caisse Nationale Credit Agricole
Paris, FRANCE
Acct. No.: 00995-3045-2000-0
for Chase Nassau Account
Ref: Cooper-Cameron
Attn: Ruth Tortorici
4. Deutsche Marks
Chase Bank AG
Frankfurt, GERMANY
Acct. No.: 623-12-00178
for Chase Nassau Account
Ref: Cooper-Cameron
Attn: Ruth Tortorici
5
<PAGE> 142
5. Singapore Dollars
The Chase Manhattan Bank
Singapore
for Chase Nassau Acct. No. 0121 869320
Ref: Cooper Cameron
Attn: Ruth Tortorici
6. Canadian Dollars
Bank of Montreal
Toronto, CANADA
for Chase Nassau Acct. No. 3144-1001-537
Ref: Cooper-Cameron
Attn: Ruth Tortorici
6
<PAGE> 143
COMMERZBANK AKTIENGESELLSCHAFT
ATLANTA AGENCY
1. US Dollars
Commerzbank Aktiengesellschaft, New York Branch
2 World Financial Center
New York, New York 10281
F/C Atlanta Agency
Ref: Cooper Cameron Corporation
ABA No.: 026008044
Telephone: (212) 266-7200
Fax: (212) 266-7235
2. British Sterling
Commerzbank Aktiengesellschaft, London Branch
Commerzbank House
23 Austin Friars
PO Box 286
GB-London, EC2P 2 JD
F/C Atlanta Agency
Ref: Cooper Cameron Corporation
Acct. No.: 160-940150600
SWIFT Address: OELBATWW
3. French Francs
Commerzbank Aktiengesellschaft, Paris Branch
3, Place de l'Opera, F-75002
Paris, France
F/C Atlanta Agency
Ref: Cooper Cameron Corporation
Acct. No.: 140-940150600
SWIFT Address: COBAFRPX
7
<PAGE> 144
4. Deutsche Marks
Commerzbank Aktiengesellschaft, Frankfurt Branch Neue Mainzer Str.
32-36 60311 Frankfurt a. M. F/C Atlanta Agency Ref: Cooper Cameron
Corporation Acct. No.: 400-940150600 SWIFT Address: COBADEFF
5. Singapore Dollars
Commerzbank AG
F/C Atlanta Agency
Ref.: Cooper Cameron Corporation
Acct, no.: 167-940150600
SWIFT Address: COBASGSX
8
<PAGE> 145
CREDIT LYONNAIS NEW YORK BRANCH
1. US Dollars
Credit Lyonnais New York
Attn: Loan Servicing Department
Ref: Cooper Cameron Corporation
1301 Avenue of the Americas
New York, New York 10019
ABA No.: 026008073
Holdover Credit 01 881792140
Ref: Cooper Cameron Corporation
Contact: Richard Pilonski
Telephone: (212) 261-7640
2. British Sterling
Credit Lyonnais London
London, England
Acct. No.: 00916113400100
Ref: Cooper Cameron Corporation
CHAPS Sort Code: 165209
SWIFT Address: CRLYGB2L
3. French Francs
Credit Lyonnais Paris
Paris, France
Acct. No.: 09100081730
Ref: Cooper Cameron Corporation
Code Banque: 30002
SWIFT Address: CRLYFRPP
4. Deutsche Marks
Bankers Trust International, Plc
Frankfurt, Germany
Acct. No.: 832230028
Ref: Cooper Cameron Corporation
SWIFT Address: BKTDDEFF
9
<PAGE> 146
5. Singapore Dollars
Credit Lyonnais Singapore
Singapore 0104, Singapore
Acct. no.: 11 215137 320 40 090
Ref: Cooper Cameron Corporation
Telephone: 65 535 94 77
Telecopy: 65 532 28 34
10
<PAGE> 147
NATIONAL WESTMINSTER BANK PLC
1. US Dollars
National Westminster Bank Plc
New York Branch
175 Water Street
New York, New York 10038
Attn: Donna Weiss
ABA No.: 026002749
Acct. No.: 89016815
2. British Sterling
National Westminster Bank
NatWest Tower
25 Old Broad Street
London EC2N IHQ England
Nostro Acct. No.: 3100203020258
Nostro Branch 50
SWIFT Address: NWBKGB2L
3. French Francs
Societe Generale Paris
29 Boulevard Haussmann
75009 Paris France
Nostro Acct. No.: 00101764471
Nostro Branch 50
SWIFT Address: SOGEFRPP
4. Deutsche Marks
NatWest AG Frankfurt
Feldbergstrasse 35
P.O. Box 111061
6000 Frankfurt am Main I
Germany
Nostro Acct. No.: 1187175003
Nostro Branch 50
SWIFT Address: NWBKDEFF
11
<PAGE> 148
5. Singapore Dollars
Overseas-Chinese Banking Corp. Ltd.
Singapore
Nostro Account no.: 501-352603-001
Nostro Branch 50
SWIFT Address: OCBCSGSG
12
<PAGE> 149
NATIONSBANK OF TEXAS, N.A.
1. US Dollars
NationsBank of Texas, N.A.
901 Main Street
Dallas, Texas 75202
ABA No.: 111000025
Acct. No.: 1292000883
Acct. Name: Corporate Loans Funds Transfer
Ref: Cooper Cameron Corporation
2. British Sterling
Midland Bank PLC, London
Acct. No.: 00478549
By order of NationsBank Texas Nassau Further Credit to Cooper Cameron
Corp.
SWIFT Address: MIDLGB22 Use SWIFT payment MT202
3. French Francs
Societe Generale, Paris
Acct. No.: 001014429200
By order of NationsBank Texas Nassau Further Credit to Cooper Cameron
Corp.
SWIFT Address: SOGEFRPP Use SWIFT payment MT202
4. Deutsche Marks
Commerzbank, Frankfurt
Acct. No.: 400887531200
By order of NationsBank Texas Nassau Further Credit to Cooper Cameron
Corp.
SWIFT Address: COBADEFF Use SWIFT payment MT202
5. Singapore Dollars
Overseas Chinese Banking Group
Acct. no.: 501097620001
By order of NationsBank Texas Nassau Further Credit to Cooper Cameron
Corp.
SWIFT Address: OCBCSGSG Use SWIFT payment MT202
13
<PAGE> 150
ABN AMRO BANK N.V.
1. US Dollars
ABN AMRO New York
ABA No.: 026009580
For credit to ABN AMRO Houston Agency
Acct. No.: 651001071541
Attn: Patricia Baker
Ref: Cooper Cameron
2. British Sterling
Lloyds Bank PLC - London
CHAPS No. 30-96-34
ABN AMRO Chicago Treasury
Acct. No.: 01001036
Favor: Grand Cayman
3. French Francs
Banque de Neuflize Schlumberger Mallet - Paris
ABN AMRO Chicago Treasury
Acct. No.: 00.12040.12862.00
Favor: Grand Cayman
4. Deutsche Marks
Dresdner Bank - Frankfurt
ABN AMRO Chicago Treasury
Acct. No.: 8.182.930.00
Favor: Grand Cayman
5. Singapore Dollars
ABN AMRO Singapore
ABN AMRO Chicago Treasury
Acct. no.: 28 00 349
Favor: Grand Cayman
SWIFT Address: ABNASGSG
14
<PAGE> 151
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
1. US Dollars
Morgan Guaranty Trust Co., New York
ABA No.: 021-000-238
For account of: Australia and New Zealand Banking Group Limited
Acct. No.: 631-00-888
Ref: Cooper Cameron Corporation
Attn: Loan Administration
2. British Sterling
ANZ London
Minerva House
P.O. Box 7
Montague Close
London, England
SWIFT Address: ANZBGB2L
For account of: ANZ New York
3. French Francs
ANZ Paris
6 Rue de Berri
75008 Paris
France
SWIFT Address: ANZBFRPP
For account of: ANZ New York
4. Deutsche Marks
ANZ Frankfurt
Mainzer Landstrasse 46
60325 Frankfurt am Main
Germany
SWIFT Address: ANZBDEFF
For account of: ANZ New York
15
<PAGE> 152
5. Singapore Dollars
ANZ Bank Singapore
10 Collyer Quay, #17-01/07
Ocean Building
Singapore 0104
SWIFT Address: ANZBSGSX
For account of: ANZ New York
16
<PAGE> 153
PNC BANK, NATIONAL ASSOCIATION
1. US Dollars
PNC Bank, National Association
ABA No.: 043-000096
Acct.: Cooper Cameron Attn: Loan and Collateral
Acct. No.: 196060890
2. British Sterling
Coutts & Company
International Banking Office
27 Bush Loan
Cannon Street
London EC4ROAA England
SWIFT Address: COUTGB22
Beneficiary Acct.: PNC Bank, N.A., Pittsburgh
Acct. No.: 8384533
3. French Francs
Societe Generale
29 Boulevard Haussman
75009 Paris, France
SWIFT Address: SOGEFRPP
Beneficiary Acct.: PNC Bank, N.A., Pittsburgh
Acct. No.: 001014438780
4. Deutsche Marks
Deutsche Bank AG
TZE/Bankenbateilung Postfach 5223
6236 Eachborn 1
Frankfurt, Germany
SWIFT Address: DEUTDEFF
Beneficiary Acct.: PNC Bank, N.A., Pittsburgh
Acct. No.: 100-9586876-0000
17
<PAGE> 154
5. Singapore Dollars
Development Bank of Singapore Ltd.
DBS Building
6 Shenton Way
SWIFT Address: DBSSSGSG
Beneficiary Acct.: PNC Bank, N.A., Pittsburgh
Acct. no.: 37-0056-6
Ref.: Attn: Forex Corporate Operations
18
<PAGE> 155
ROYAL BANK OF CANADA
1. US Dollars
Chase Manhattan Bank, N.A.
New York, New York
ABA No.: 021000021
Acct. No.: 920-1-033363 c/o Royal Bank of Canada, NY
For further credit to account no. 2185999
Ref: Cooper Cameron Corporation
2. British Sterling
Barclays Bank PLC, London
For Account of: RBC IMM Toronto
Acct. No.: 50251887
Ref: Cooper Cameron Corporation
3. French Francs
Banque Nationale de Paris, Paris
For Account of: RBC IMM Toronto
Acct. No.: 040407642
Ref: Cooper Cameron Corporation
4. Deutsche Marks
Deutsche Bank AG, Frankfurt
For Account of: RBC IMM Toronto
Acct. No.: 10095111970000
Ref: Cooper Cameron Corporation
5. Singapore Dollars
Royal Bank of Canada (Singapore)
For Account of: RBC IMM Toronto
Acct. no.: 5902911
Ref: Cooper Cameron Corporation
19
<PAGE> 156
SOCIETE GENERALE, SOUTHWEST AGENCY
1. US Dollars
Societe Generale, New York
1221 Avenue of the Americas
New York, New York 10020
ABA No.: 026 004 226
FFC Cooper Cameron Corporation
Acct. No.: 9031685
2. British Sterling
Societe Generale
London, England
Acct. No.: 03100235
SWIFT Address: SOGEGB2LLON
3. French Francs
Societe Generale
Paris, France
Acct. No.: 001014445870
SWIFT Address: SOGEFRPP
4. Deutsche Marks
Societe Generale, S.A.
Frankfurt, Germany
Acct. No.: 891410-801119
SWIFT Address: SOGEDEFF
5. Singapore Dollars
Societe Generale
Singapore
F/C/T SG - New York
Acct. no.: 100800081012
Ref.: Cooper Cameron
SWIFT Address: SOGESGSG
20