Delaware 76-0451843
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
515 Post Oak Boulevard,
Suite 1200
Houston, Texas
(Address of principal 77027
executive offices) (Zip Code)
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Name of Each Exchange on
Title of Each Class Which Registered
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Common Stock, Par Value $0.01 Per Share New York Stock Exchange
Junior Participating Preferred Stock
Purchase Rights
Par Value $0.01 Per Share
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the Registrant's knowledge, in a definitive proxy or information statement incorporated by reference in Part III of this Form 10-K of any amendment to this Form 10-K. [X]
The number of shares of Common Stock, par value $.01 per share, outstanding as of March 14, 1997 was 25,641,585. The aggregate market value of the Common Stock, par value $0.01 per share, held by non-affiliates of the Registrant as of March 14, 1997 was approximately $1,746,540,073. For the purposes of the determination of the above statement amount only, all directors and executive officers of the Registrant are presumed to be affiliates.
Portions of Registrant's Annual Report to Stockholders for 1996 are incorporated by reference into Part II.
Portions of Registrant's Proxy Statement for the 1997 Annual Meeting of Stockholders to be held May 8, 1997 are incorporated by reference into Part III.
PAGE
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1996 1996 MARCH 21, 1997
ITEM FORM 10-K ANNUAL REPORT PROXY STATEMENT
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PART I
1. BUSINESS ............................................................... 1 - -
Markets and Products................................................ 2 - -
Aftermarket Services................................................ 7 - -
Market Issues....................................................... 7 - -
New Product Development............................................. 8 - -
Competition......................................................... 9 - -
Manufacturing....................................................... 9 - -
Backlog............................................................. 10 - -
Patents, Trademarks and Other Intellectual Property................. 10 - -
Employees........................................................... 11 - -
2. PROPERTIES.............................................................. 11 - -
3. LEGAL PROCEEDINGS....................................................... 12 - -
Environmental Matters............................................... 12 - -
4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS..................... 13 - -
PART II
5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS................................................. 13 - -
6. SELECTED FINANCIAL DATA................................................. 14 50-51 -
7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS............................................... 14 17-24 -
8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA............................. 14 25-49
9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE............................................ 14 - -
PART III
10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT...................... 14 - 4,5,13
11. EXECUTIVE COMPENSATION.................................................. 16 - 16-19
12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.......................................................... 16 - 3,14
13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.......................... 16 - 15
PART IV
14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K............................................................ 16 - -
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Cooper Cameron Corporation ("Cooper Cameron" or the "Company") is a leading international manufacturer of oil and gas pressure control equipment, including valves, wellheads, chokes, blowout preventers and assembled systems for oil and gas drilling, production and transmission used in onshore, offshore and subsea applications. Cooper Cameron is also a leading manufacturer of gas turbines, centrifugal gas and air compressors, integral and separable reciprocating engines, compressors and turbochargers.
Cooper Cameron, a Delaware corporation, was incorporated on November 10, 1994. The Company operated as a wholly-owned subsidiary of Cooper Industries, Inc. ("Cooper") until June 30, 1995, the effective date of the completion of an exchange offer with Cooper's stockholders resulting in the Company becoming a separate stand-alone company. The common stock of Cooper Cameron is trading on the New York Stock Exchange under the symbol "RON".
In June 1996, Cooper Cameron purchased the assets and assumed certain operating liabilities of Ingram Cactus Company for approximately $100 million in cash. The business acquired manufactures and sells wellheads, surface systems, valves and actuators used primarily in onshore oil and gas production operations, and operates manufacturing facilities in Houston, TX, Oklahoma City, OK and Broussard, LA, as well in the United Kingdom and Austria. The Company also acquired interests in Ingram Cactus joint ventures in Venezuela and Malaysia. The operations have been combined with those of the Cameron division.
In October 1996, Cooper Cameron acquired for its Cameron division certain assets and assumed certain liabilities of Tundra Valve & Wellhead Corp., a Canadian manufacturer of wellheads, trees and valves, for approximately Canadian $9.8 million. Also during October 1996, Cooper Cameron acquired for its Cooper Energy Services division, for approximately $6.1 million, certain assets of ENOX Technologies, Inc., a developer and provider of ignition systems for gas engines, particularly those used in large-scale gas transmission installations.
Cooper Cameron's business of manufacturing petroleum production equipment and compression and power equipment began in the mid-1800's with the manufacture of steam engines that provided power for plants and textile or rolling mills. By 1900, with the discovery of oil and gas, Cooper Cameron moved into the production of natural gas internal combustion engines and gas compressors. The Company added to its product offering through various acquisitions, in particular the acquisitions of The Bessemer Gas Engine Company (gas engines and compressors); Pennsylvania Pump and Compressor (reciprocating air and gas compressors); Ajax Iron Works (compressors); Superior (engines and compressors); Joy Petroleum Equipment Group (valves, couplings and wellheads); Joy Industrial Compressor Group (compressors); and Cameron Iron Works (blowout preventers, ball valves, control equipment and McEvoy-Willis wellhead equipment and choke valves).
MARKETS AND PRODUCTS
The Company operates in two industry segments, petroleum production equipment and compression and power equipment.
For additional industry segment information for each of the three years in the three-year period ended December 31, 1996, see Note 16 of the Notes to Consolidated Financial Statements, which Notes are incorporated herein by reference in Part II, Item 8 hereof ("Notes to Consolidated Financial Statements.")
Petroleum Production Equipment Segment
The Company manufactures pressure control equipment used at the wellhead in the drilling for and production and transmission of oil and gas, both onshore and offshore. The primary products include wellheads, gate valves and ball valves, blowout preventers ("BOPs") and control systems and are marketed under the well-known brand names Cameron(R), W-K-M(R), McEvoy(R), Demco(R), Willis(TM) and Thornhill Craver(TM). The equipment is manufactured in a variety of sizes and to various specifications with working pressure ratings up to 30,000 pounds per square inch ("p.s.i."). The wellhead equipment is designed to support the casing and production pipe and includes casing head housings, casing heads and tubing heads. Valves of different sizes and design are assembled with other components into an assembly known as a "christmas tree," which is mounted on the wellhead equipment and is used to control the flow of oil and gas from a producing well. Most christmas trees are custom designed to meet individual customer requirements.
The Company also manufactures subsea production systems, which consist of equipment used to complete an oil or gas well on the sea floor. Subsea systems tend to be sophisticated and generally require a high degree of technological innovation.
In 1993, the Company introduced its patented SpoolTree(TM) subsea production system for use in oil and gas fields with subsea completions that require frequent retrieval of downhole equipment. With the SpoolTree(TM) system, well completion and workover activities can be performed without a workover riser and removal of the christmas tree and under conventional blowout preventer control, thereby reducing the time and equipment needed to perform such activities.
Cooper Cameron's drilling-related equipment includes ram and annular BOPs. The drilling of an oil or gas well is done through BOPs located under the rig floor and on top of the wellhead. The primary function of a BOP is to maintain well control under all conditions. Ram-type preventers have two hydraulically actuated steel rams with rubber inserts that are designed to close around the drill pipe, sealing off the space below or, in the case of blind rams, to close off the open hole. The annular-type BOP is attached above the ram BOPs and is used to close off the well-bore using a donut-shaped rubber packer with steel inserts that are compressed together by a hydraulically actuated piston. The workover-type preventer is attached to the top of
Cooper Cameron also produces other drilling-related equipment, the most important of which are choke manifolds and control systems. Choke manifolds are arrangements of piping, valves and special valves, called chokes, which control pressures during drilling and, in the event of BOP closure, bleed off excessive pressures. Control systems monitor well pressures and activate the chokes, valves and BOPs.
Cooper Cameron also manufactures ball valves and underwater pipeline tie-in and pipeline repair equipment. A ball valve consists of a spherical plug, or ball, with a hole running axially through it to allow the passage of gas or fluid. Sealing surfaces are arranged so that a 90-degree turn of the plug will shut off the flow. Ball valve sizes range from 1/4 inch to 60 inches in diameter with working pressures of up to 2,500 p.s.i. Large diameter valves are used primarily in natural gas transmission lines. Smaller valves are used in oil and gas gathering and processing systems and in various types of industrial processes in refineries and petrochemical plants. Subsea pipeline tie-in systems are used in the connection of subsea pipelines to one another and to offshore platforms. Pipeline repair systems are used in the repair of subsea pipelines.
Cooper Cameron manufactures gate valves and butterfly valves for use in oil and gas gathering and processing systems such as refineries and petrochemical plants. Sizes range from 2 to 56 inches and pressures range up to 2,500 p.s.i. Cooper Cameron recently introduced the Cameron(R) Hi-Lo Trip Mechanical Pilot for Emergency Shutdown valves that are designed for use in oil and gas production, pipelines, plants and other areas where emergency shutdown is required.
Cooper Cameron manufactures production chokes, control valves, drilling choke systems, actuators, and pigging and production automation systems. A choke is a type of valve which restricts and regulates the flow of a product through a flowline or pipeline. Designs include a multiple orifice valve, needle and seat chokes, cage style control chokes, rotary chokes and subsea chokes and actuators. The unique multiple orifice valve design uses two adjacent discs, each with a pair of openings. Cage style control chokes are used to solve erosion problems while improving the precision of flow control. In 1995, Cooper Cameron introduced its new Willis(TM) Stepping Linear Control Actuator, which is designed to provide remote operation of certain Willis(TM) control chokes. Cooper Cameron produces subsea chokes and actuators used on subsea production equipment, including state-of-the-art subsea retrievable chokes. Choke sizes range from 1 inch to 6 inches in diameter with working pressures of up to 20,000 p.s.i. Cooper Cameron recently introduced two new actuators, the Cameron(R) AP and Compact Modular Actuators, designed for use on its line of subsea gate valves. These valves are fail-close hydraulically activated and are manufactured for operating pressures between 1,500 p.s.i. and 3,000 p.s.i.
Cooper Cameron provides complete integrated elastomer research, development and manufacturing. These products are used in pressure and flow control equipment in the Petroleum Production Equipment segment. This technology also supports the petroleum, petrochemical,
The Cameron Controls business was created in 1996 with a primary goal of expanding Cameron's role as a provider of controls equipment. Drilling and production equipment used on the ocean floor operates from a platform or other remote location through hydraulic or electronic connections that allow the operator to measure and control the pressures and throughput associated with these installations.
Cooper Cameron markets approximately 80% of its petroleum production equipment products directly to end-users through a worldwide network of sales and marketing employees, supported by agents in some international locations. Due to the extremely technical nature of many of the products, the marketing effort is further supported by a staff of engineering employees. The balance of Cooper Cameron's products are sold through established independent distributors.
The Petroleum Production Equipment segment's primary customers include major oil and gas exploration and production companies, independent oil and gas exploration and production companies, foreign national oil and gas companies, engineering and construction companies, pipeline companies, drilling contractors and rental equipment companies. Some valves are sold to various types of process plants, such as refining and petrochemical, chemical and power generation.
Compression and Power Equipment Segment
Cooper Cameron's Compression and Power Equipment segment provides products and services to the oil and gas production and transmission, industrial, process and non-utility power generation markets. The primary products include engines, reciprocating compressors, centrifugal air and gas compressors, gas turbines, turbochargers, control systems and aftermarket parts and service. Cooper Cameron markets its products worldwide under the well-known brand names Ajax(R), Superior(R), Cooper-Bessemer(R), Coberra(R), Pennsylvania Process(TM), En-Tronic(R) and Joy(R).
Manufactured under the Cooper-Bessemer(R), Ajax(R) and Superior(R) brand names, Cooper Cameron's reciprocating products include both "integral" and "separable" units. The integral gas engine-compressor concept, pioneered by the Company in the 1930s, is a unique two-cycle design that combines the unit's engine and compressor on a single crankshaft. Integral engine-compressors can accommodate wide swings in gas transmission pressure conditions and are frequently used in single-stage transmission, multiple-stage boosting or gas injection/withdrawal applications. Cooper Cameron's Cooper-Bessemer(R) and Ajax(R) integral units range in power from 140 to 13,500 horsepower. Over the past 50 years, more than 4,400 Cooper-Bessemer(R) integral engine-compressors, totaling over 6,500,000 horsepower, have been installed in 35 countries worldwide.
Cooper Cameron manufactures four-cycle reciprocating power engines ranging from small, six-cylinder "in-line" units, to large, 20-cylinder "V" configuration models. They are
All Cooper Cameron integral gas engine-compressors and power engines are available with state-of-the-art technology designed for reduced emissions to meet or exceed government-regulated clean air standards. The CleanBurn(TM) concept, which was first developed and introduced by the Company in 1977, features a pre-ignition firing chamber to reduce engine exhaust emissions without sacrificing fuel economy. CleanBurn(TM) "conversion kits" are also available to enable Cooper Cameron customers to maximize their original equipment investment by incorporating these latest technological advancements into their previously installed Ajax(R), Cooper-Bessemer(R), Enterprise(R) and Superior(R) engines.
For natural gas applications, Cooper Cameron manufactures two types of rotating gas compressors under the Cooper-Bessemer(R) brand name: pipeline centrifugal compressors, which handle pressures up to 2,200 p.s.i.; and multi- stage barrel compressors, designed for pressures to 6,500 p.s.i. The Cooper-Bessemer(R) pipeline centrifugal compressor is recognized worldwide as one of the most efficient high-flow compressors in gas transmission service. Cooper-Bessemer(R) multi-stage barrel compressors are vertically split and sized to meet a wide combination of flow and pressure requirements at continuous, full-load operation in natural gas gathering, production, storage, artificial lift and re-injection applications.
Cooper Cameron provides gas turbines and gas turbine-driven compression and power generation packages to the worldwide oil and gas related markets through Cooper Rolls, its joint venture company with Rolls-Royce plc of London, England. Marketed under the Coberra(R) brand name, Cooper Rolls(TM) gas turbines combine a Rolls-Royce industrial gas generator and a Cooper-Bessemer(R) power turbine to provide a compact, aero-derivative power source with high horsepower-to-weight ratios. With over 23,000,000 hours of operating experience, Coberra(R) gas turbines are one of the world market leaders in their size range for oil and gas related applications. They provide up to 40,000 horsepower with high, simple-cycle thermal efficiencies and are commonly installed both onshore and offshore as drivers for Cooper-Bessemer(R) rotating gas compressors, water and oil pumps and electric generators.
Cooper Cameron manufactures turbochargers under the Cooper-Bessemer(R) brand name for new Cooper Cameron reciprocating engines and also provides factory repair of its own and other manufacturers' turbochargers in a dedicated facility. High performance turbochargers are necessary to achieve required exhaust emissions while maintaining desired efficiency and
Cooper Cameron manufactures En-Tronic(R) control and analysis equipment for many of its compression and power products, as well as for products produced by other manufacturers. En-Tronic(R) controls provide state-of-the-art solutions to advanced system requirements such as calculating and controlling low emissions on gas turbines and engines, and all-electronic fuel control of gas turbine and engine packages. En-Tronic(R) products use advanced, field-proven hardware and software technology, utilizing microprocessors, cathode ray tubes and liquid crystal displays, to optimize equipment reliability, safety and efficiency.
Cooper Cameron manufactures Joy(R) integrally geared centrifugal air compressors used by industrial plants as a source of power for the operation of hand tools, actuation of control devices and to power automatic and semi-automatic production equipment. These compressors are used in industries such as automotive, container, textile, chemical, food and beverage and general manufacturing. Cooper Cameron serves the plant air market with two product lines of compressors. The C-8 series covers the 300 to 1,250 horsepower range at discharge pressures from 50 to 150 p.s.i. Cooper Cameron's newest machine designed specifically for industrial air applications is the Turbo-Air(R) 2000, which was introduced in 1994. This machine provides the centrifugal compressor advantage of higher efficiency with reliable and unattended operation down to a 150 horsepower unit. The larger Turbo-Air(R) series covers a horsepower range from 350 to 4,500 and is for plant air applications above 1,250 horsepower or where the customer requires greater customization to meet particular specifications. All components of the Turbo-Air(R) and C-8 series machines, including the compressor, driver, lubrication system, control system and intercoolers, are grouped on a common base into a ready-to-install package. This configuration provides easy installation on a simple slab foundation at the customer's plant location.
Cooper Cameron's Compression and Power Equipment segment manufactures integral gear centrifugal compressors for process applications where the air is used for its content of oxygen, nitrogen, argon or other elements. In these cases, the compressor is an integral part of the industrial process in industries, such as air separation, pharmaceutical, fermentation, petrochemical, refining and synthetic fuel. Cooper Cameron services the process air market with two product lines of centrifugal compressors. The Joy(R) MSG(R) or Multi Stage Geared(TM) series covers a range of 700 to 20,000 horsepower, handling air or nitrogen to pressures up to 750 p.s.i. and volume flows up to 70,000 cubic feet per minute. The Joy(R) MSG(R) series is a flexible modular design that can be customized in aerodynamic components, materials of construction and packaging scope, thereby providing an optimized compressor to meet a customer's unique requirements. The Turbo-Air(R) series is a fully packaged unit that uses the modular and customizing concepts of the Joy(R) MSG(R) series in the process air market from 350 to 4,500 horsepower.
The process and plant air centrifugal compressors manufactured by Cooper Cameron deliver oil-free compressed air to the customer, thus preventing oil contamination of the manufactured products. Industrial markets worldwide increasingly prefer oil-free air for safety, operational and environmental reasons.
Cooper Cameron's primary customers for compression and power equipment include the major oil and gas companies, large independent oil and gas producers, gas transmission companies, equipment leasing companies, petrochemical and refining divisions of oil companies and chemical companies. Industrial and process compressors are sold to durable goods manufacturers and process industries.
Cooper Cameron also markets technology acquired from ENOX Technologies, Inc. ENOX technology provides patented electrical plasma discharge ignition systems and engine management systems for large internal combustion engines used, for example, in the natural gas pipeline industry.
AFTERMARKET SERVICES
Cooper Cameron has a comprehensive worldwide aftermarket organization that provides replacement parts, field service, major repairs and overhauls, unit installation assistance and total vendor maintenance contracts. Customer requirements are satisfied around the clock through a worldwide network of service and repair centers and parts warehouses. As customers have drastically reduced their staffing and shifted more responsibility to vendors, total vendor maintenance contracts have become increasingly popular and Cooper Cameron's aftermarket organizations have responded. Cooper Cameron provides all maintenance services for a customer's equipment in a particular area from one service center. Cooper Cameron also provides an inventory of repair parts, service personnel, planning services and inventory and storage of customers' idle equipment. Cooper Cameron's large population of installed equipment results in aftermarket services constituting approximately 29% of Cooper Cameron's total sales in 1996.
MARKET ISSUES
Cooper Cameron is one of the market leaders in the global market for petroleum production equipment. Cooper Cameron believes that it is well positioned to serve these markets. Plant and service center facilities around the world in major oil producing regions provide a broad, global breadth of market coverage.
The international market is expected to be a major source of growth for the Cooper Cameron Compression and Power Equipment segment. The desire of both the developed and the developing countries to expand their respective oil and gas transmission capacity for both economic and political reasons will be one of the primary factors affecting market demand.
In both of Cooper Cameron's business segments, a large population of installed engines, compression, and gas and oil production equipment exists in both the U.S. and international market segments. The rugged, long-lived nature of the equipment that exists in the field provides a predictable and profitable repair parts and service business. The Company expects that as increasing quantities of new units are sold into the international markets, there should be a continuing growth in market demand for aftermarket parts and service.
NEW PRODUCT DEVELOPMENT
As petroleum exploration activities have increasingly been focused on subsea locations, Cooper Cameron's Petroleum Production Equipment segment has directed much of its new product development efforts toward this market. In subsea exploration, customers are particularly concerned about safety, environmental protection and ease of installation and maintenance. Cooper Cameron's reputation for high quality and high dependability has given it a competitive advantage in the areas of safety and environmental protection. A patented subsea production system called the SpoolTree(TM), which was introduced in 1993, offers substantial cost reduction to the customer as it is based upon a novel concept that eliminates the need for a workover riser or removal of the christmas tree during workover. Cooper Cameron has pioneered this concept and has developed similar products for land and platform applications, which significantly reduce customer costs. In another development, Cooper Cameron has introduced modular subsea production systems consisting of several standard modules that can be assembled into a customer-specific system, significantly reducing engineering costs for a project.
In the Compression and Power Equipment segment, Cooper Cameron has developed a number of new products to serve the oil and gas transmission market and the industrial air compression market. An area of increasing importance in the oil and gas transmission market is the reduction of environmentally harmful emissions from the engines and turbines that drive the compression equipment. Building on its experience with its CleanBurn(TM) technology, and in conjunction with Rolls-Royce plc, Cooper Cameron has developed and is in the process of marketing new Dry Low Emissions(TM) gas turbines, as well as conversion kits for the existing Cooper Rolls(TM) units in the field. This technology significantly reduces the level of emissions produced by gas turbine drivers. Additionally, in 1995, a new line of En-Tronic(R) performance and monitoring control systems was introduced to aid in optimizing the performance and emission parameters of engines and turbines. Over the past three years, Cooper Cameron has also introduced new high speed reciprocating engines and compressors with improved reliability, fuel efficiency and emissions performance. These new units utilize En-Tronic(R) state-of-the-art CleanBurn(TM)III microprocessor-based control systems. In late 1994, Cooper Cameron's centrifugal air compressor product line was expanded to include the Turbo-Air(R) 2000 compressor, which extended the product line down to the 150 horsepower range. Cooper Cameron is able to offer lower horsepower users the technological advantages of a centrifugal
COMPETITION
Cooper Cameron competes in all areas of its operations with a number of other companies, some of which have financial and other resources comparable to or greater than those of Cooper Cameron.
Cooper Cameron believes it has a leading position in the petroleum production equipment markets, particularly with respect to its high pressure products. In these markets, Cooper Cameron competes principally with Vetco Gray Inc. (a subsidiary of Asea Brown Boveri) and FMC Corp. The principal competitive factors in the petroleum production equipment markets are technology, quality, service and price. Cooper Cameron believes that several factors give it a strong competitive position in these markets. Most significant are Cooper Cameron's broad product offering, its worldwide presence and reputation, its service and repair capabilities, its expertise in high pressure technology and its experience in alliance and partnership arrangements with customers and other suppliers.
Cooper Cameron believes it also has a leading position in the compression and power equipment markets. In these markets, Cooper Cameron competes principally with General Electric Company, Dresser-Rand Company, European Gas Turbines Inc., Ariel Corporation, Caterpillar Inc., Waukesha-Pearce Industries Inc., Atlas-Copco AB, Mannesmann Demag AG and Ingersoll-Rand Company. The principal competitive factors in the compression and power equipment markets are engineering and design capabilities, product performance, reliability and quality, service and price. Cooper Cameron believes that its competitive position is based on several factors. Cooper Cameron has a broad product offering and, unlike any of its competitors, manufactures and sells both engines and compressors (both as separate units and packaged together as a single unit). Cooper Cameron led the industry in the introduction of low engine emission technology and continues today as an industry leader in this technology. Cooper Cameron has a highly competent engineering staff and skilled technical and service representatives, with service centers located throughout the world.
In all of its markets, Cooper Cameron has strong brand recognition and an established reputation for quality and service. Cooper Cameron has a significant base of previously-installed products, which provides a strong demand for aftermarket parts and service. Cooper Cameron has modern manufacturing facilities and state-of-the-art testing capabilities.
MANUFACTURING
Cooper Cameron has manufacturing facilities in 13 countries that conduct a broad variety of processes, including machining, fabrication, assembly and testing using a variety of forged and cast alloyed steels and stainless steel as the primary raw materials. In recent years, Cooper Cameron has rationalized plants and products, closed six manufacturing facilities, moved product lines to achieve economies of scale, and upgraded the remaining facilities. Manufacturing
Cooper Cameron believes that its test capabilities are critical to its overall process. Cooper Cameron has capabilities to test most equipment at full load, measuring all operating parameters, efficiency and emissions. All process compressors for air separation and all plant air compressors are given a mechanical and aerodynamic test in a dedicated test center prior to shipment.
All of Cooper Cameron's European manufacturing plants are ISO certified and API licensed. Most of the U.S. plants are ISO certified or, if not, such certification is in process. ISO is an internationally recognized verification system for quality management.
BACKLOG
Cooper Cameron's backlog was approximately $728 million at December 31, 1996, as compared to $588 million at December 31, 1995, and approximately $465 million at December 31, 1994. Backlog consists of firm customer orders for which a purchase order has been received, satisfactory credit or financing arrangements exist and delivery is scheduled.
PATENTS, TRADEMARKS AND OTHER INTELLECTUAL PROPERTY
Cooper Cameron believes that the success of its business depends more on the technical competence, creativity and marketing abilities of its employees than on any individual patent, trademark or copyright. Nevertheless, as part of its ongoing research, development and manufacturing activities, Cooper Cameron has a policy of seeking patents when appropriate on inventions concerning new products and product improvements. Cooper Cameron owns 387 unexpired United States patents and 725 unexpired foreign patents.
Although in the aggregate these patents and Cooper Cameron's trademarks are of considerable importance to the manufacturing and marketing of many of its products, Cooper Cameron does not consider any single patent or trademark or group of patents or trademarks to be material to its business as a whole, except the Cameron(R), Cooper-Bessemer(R), Coberra(R) and Cooper Rolls(TM) trademarks. Other important trademarks used by Cooper Cameron include Ajax(R), Superior(R), En-Tronic(R), Enterprise(R), W-K-M(R), McEvoy(R), Willis(TM), Demco(R), Pennsylvania Process(TM) and Thornhill Craver(TM). Cooper Cameron has the right to use the trademark Joy(R) on aftermarket parts until November 2027. Cooper Cameron has registered its trademarks in the countries where such registration is deemed material.
EMPLOYEES
As of December 31, 1996, Cooper Cameron had approximately 8,500 employees, of which approximately 3,200 were represented by labor unions. Cooper Cameron believes its current relations with employees are good. The only significant labor contracts expiring during 1997 cover employees at the Cooper Cameron Valve plant in Missouri City, Texas (April), the Compression and Power Equipment plant in Springfield, Ohio (August), and the Cooper Cameron plant in Leeds, England.
The Company operates manufacturing plants ranging in size from approximately 14,000 square feet to approximately 858,000 square feet of manufacturing space. The Company also owns and leases warehouses, distribution centers, aftermarket and storage facilities, and sales offices. The Company leases its corporate headquarters and Cameron division office space in Houston, Texas.
The Company manufactures, markets and sells its products and provides services throughout the world, operating facilities in over 30 countries. On December 31, 1996, the significant facilities used by Cooper Cameron throughout the world for manufacturing, distribution, aftermarket services, machining, storage and warehousing contained an aggregate of approximately 6,609,800 square feet of space, of which approximately 5,956,600 square feet (90%) was owned and 653,200 (10%) was leased. Of this total, approximately 4,794,100 square feet (73%) are located in the United States and 1,395,400 square feet (21%) are located in Europe. The table below lists the significant manufacturing, warehouse and distribution facilities by industry segment and geographic area.
Asia/Pacific
Western Eastern and
Hemisphere Hemisphere Mideast Total
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Petroleum Production Equipment 13 9 3 25
Compression and Power
Equipment 16 7 1 24
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Cooper Cameron believes its facilities are suitable for their present and intended purposes and are adequate for the Company's current and anticipated level of operations.
Cooper Cameron is a party to various legal proceedings and administrative actions, including certain environmental matters discussed below, all of which are of an ordinary or routine nature incidental to the operations of Cooper Cameron. In the opinion of Cooper Cameron's management, such proceedings and actions should not, individually or in the aggregate, have a material adverse effect on Cooper Cameron's results of operations or financial condition.
Environmental Matters
Cooper Cameron is subject to numerous federal, state, local and foreign laws and regulations relating to the storage, handling, emission and discharge of materials into the environment, including the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), the Clean Water Act, the Clean Air Act (including the 1990 Amendments) and the Resource Conservation and Recovery Act. Cooper Cameron believes that its existing environmental control procedures are adequate and it has no current plans for substantial capital expenditures in this area. Cooper Cameron has an active environmental management program aimed at compliance with existing environmental regulations and elimination or significant reduction in the generation of pollutants in its manufacturing processes. Cooper Cameron management intends to continue these policies and programs.
Cooper Cameron has been identified as a potentially responsible party ("PRP") with respect to ten sites designated for cleanup under CERCLA or similar state laws, which impose liability for cleanup of certain waste sites and for related natural resource damages without regard to fault or the legality of waste generation or disposal. Persons liable for such costs and damages generally include the site owner or operator and persons that disposed or arranged for the disposal of hazardous substances found at those sites. Although CERCLA imposes joint and several liability on all PRPs, in application, the PRPs typically allocate the investigation and cleanup costs based upon the volume of waste contributed by each PRP. Settlements often can be achieved through negotiations with the appropriate environmental agency or the other PRPs. PRPs that contributed less than one percent of the waste are often given the opportunity to settle as a "de minimis" party, resolving liability for a particular site.
Cooper Cameron does not own or operate any of the sites with respect to which it has been identified as a PRP; in each case, Cooper Cameron is identified as a party that disposed of waste at the site. With respect to nine of the sites, Cooper Cameron's share of the waste volume is estimated to be less than one percent. Cooper Cameron is the major PRP at one site, the Osborne Landfill in Grove City, Pennsylvania. Cooper Cameron's facility in Grove City disposed of wastes at the Osborne Landfill from the early 1950s until 1978. A remedial plan was developed and accepted by the U.S. Environmental Protection Agency (the "EPA") as the preferred remedy for the site. The EPA issued an order in 1991 and remediation is in process. Cooper Cameron has responsibility for the remediation plan and compliance with the EPA order.
Cooper Cameron has accruals in its balance sheet to the extent costs are known for the ten sites. Although estimates of the cleanup costs have not yet been made for certain of these sites,
Cooper Cameron does not currently anticipate any material adverse effect on its results of operations, financial condition or competitive position as a result of compliance with Federal, state, local or foreign environmental laws or regulations or cleanup costs of the sites discussed above. However, some risk of environmental liability and other costs is inherent in the nature of Cooper Cameron's business, and there can be no assurance that material environmental costs will not arise. Moreover, it is possible that future developments, such as promulgation of regulations implementing the 1990 amendments to the Clean Air Act and other increasingly strict requirements of environmental laws and enforcement policies thereunder, could lead to material costs of environmental compliance and cleanup by Cooper Cameron.
The cost of environmental remediation and compliance generally has not been an item of material expense for Cooper Cameron during any of the periods presented, other than with respect to the Osborne Landfill described above. Cooper Cameron's balance sheet at December 31, 1996, includes accruals totaling approximately $5.6 million for environmental remediation.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the fourth quarter of 1996.
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS.
The common stock of Cooper Cameron, par value $.01 per share (together with the associated Rights to Purchase Series A Junior Participating Preferred Stock), is traded on The New York Stock Exchange ("NYSE"). No dividends were paid during 1996. The following table indicates the range of trading prices on the NYSE from January 2 through December 31, 1996.
Price Range
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High Low Last
----- --- ----
1996
First Quarter . . . . . . . . . . . . . . . $42 31 7/8 42
Second Quarter . . . . . . . . . . . . . . . $46 1/2 40 1/2 43 3/4
Third Quarter . . . . . . . . . . . . . . . $57 3/8 42 1/2 57 3/8
Fourth Quarter . . . . . . . . . . . . . . . $76 1/2 57 1/4 76 1/2
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The approximate number of holders of Cooper Cameron common stock was 18,000 as of March 14, 1997. The number of record holders as of the same date was 1,482.
The information set forth under the caption "Selected Consolidated Historical Financial Data of Cooper Cameron Corporation" on pages 50-51 in the 1996 Annual Report to Stockholders is incorporated herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION.
The information set forth under the caption "Management's Discussion and Analysis of Results of Operations and Financial Condition of Cooper Cameron Corporation" on pages 17-24 in the 1996 Annual Report to Stockholders is incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The following consolidated financial statements of the Company and the independent auditors' report set forth on pages 25-49 in the 1996 Annual Report to Stockholders are incorporated herein by reference:
Consolidated Results of Operations for each of the three years in the period ended December 31, 1996.
Consolidated Cash Flows for each of the three years in the period ended December 31, 1996.
Consolidated Changes in Stockholders' Equity for the period from June 30, 1995 to December 31, 1995 and the year ended December 31, 1996.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The information on Directors of the Company is set forth in the section entitled "Election of Directors" on pages 4, 5 and 13 in the Proxy Statement of the Company for the Annual Meeting of Stockholders to be held May 8, 1997, which section is incorporated herein by reference.
There are no family relationships among the officers listed, and there are no arrangements or understandings pursuant to which any of them were elected as officers. Officers are appointed or elected annually by the Board of Directors at its first meeting following the Annual Meeting of Stockholders, each to hold office until the corresponding meeting of the Board in the next year or until a successor shall have been elected, appointed or shall have qualified.
Present Principal Position and Other Material
Name and Age Positions Held During Last Five Years
- ------------ ---------------------------------------------
Sheldon R. Erikson (55) Chairman of the Board since May 1996,
President and Chief Executive Officer since
January 1995. Chairman of the Board from 1988
to 1995 and President and Chief Executive
Officer from 1987 to 1995 of The Western
Company of North America.
Thomas R. Hix (49) Senior Vice President of Finance and Chief
Financial Officer since January 1995. Senior
Vice President of Finance, Treasurer and
Chief Financial Officer of The Western
Company of North America from 1993 to 1995.
Executive Vice President and Chief Financial
Officer from 1992 to 1993 and Vice President,
Finance and Chief Financial Officer from 1986
to 1992 of Oceaneering International.
Franklin Myers (44) Senior Vice President, General Counsel and
Secretary since April 1995. Vice President
and General Counsel from 1988 to 1994,
Secretary from 1988 to 1992, and Senior Vice
President and General Counsel from 1994 to
April 1995 of Baker Hughes Incorporated.
Joseph D. Chamberlain (50) Vice President and Corporate Controller since
April 1995. Controller - Financial Reporting
from 1994 to 1995, Assistant Controller and
Manager-Financial Reporting from 1979 to 1994
of Cooper Industries, Inc.
Michael L. Grimes (46) Vice President since November 1996.
President, Cooper Energy Services Division
since April 1996. General Manager, Quality
and Information Management of GE Power
Systems from 1995 to 1996, General Manager,
Apparatus Service Department from 1994 to
1995, General Manager, Power Generation
Services Department from 1993 to 1994 and
General Manager of Marketing, GE Power
Generation from 1992 to 1993 of General
Electric Company.
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E. Fred Minter (61) Vice President since November 1996.
President, Cooper Turbocompressor Division
since 1988.
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ITEM 11. EXECUTIVE COMPENSATION.
The information for this item is set forth in the section entitled "Compensation of Executive Management" on pages 16-19 in the Proxy Statement of the Company for the Annual Meeting of Stockholders to be held May 8, 1997, which section is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The information concerning security ownership of certain beneficial owners and management is set forth in the sections entitled "Voting Securities and Principal Holders Thereof" on page 3 and "Security Ownership of Management" on page 14 in the Proxy Statement of the Company for the Annual Meeting of Stockholders to be held May 8, 1997, which sections are incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The information regarding certain relationships and related transactions is set forth in the section entitled "Certain Transactions" on page 15 in the Proxy Statement of the Company for the Annual Meeting of Stockholders to be held May 8, 1997, which section is incorporated herein by reference.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS
ON FORM 8-K.
(A) THE FOLLOWING DOCUMENTS ARE FILED AS PART OF THIS REPORT:
(1) FINANCIAL STATEMENTS:
All financial statements of the Registrant as set forth under Item 8 of this Annual Report on Form 10-K.
(2) FINANCIAL STATEMENT SCHEDULES:
Financial statement schedules are omitted because of the absence of conditions under which they are required or because all material information required to be reported is included in the consolidated financial statements and notes thereto.
3.1 Amended and Restated Certificate of Incorporation of Cooper Cameron Corporation, dated June 30, 1995, filed as Exhibit 4.2 to the Registration Statement on Form S-8 of Cooper Cameron Corporation (Commission File No. 33-94948), and incorporated herein by reference.
3.2 First Amended and Restated Bylaws of Cooper Cameron Corporation, as amended December 12, 1996.
4.1 Form of Rights Agreement, dated as of May 1, 1995, between Cooper Cameron Corporation and First Chicago Trust Company of New York, as Rights Agent, filed as Exhibit 4.1 to the Registration Statement on Form S-8 of Cooper Cameron Corporation (Commission File No. 33-94948), and incorporated herein by reference.
10.1 Cooper Cameron Corporation Long-Term Incentive Plan (Registration Statement No. 33-95004), incorporated herein by reference.
10.2 Cooper Cameron Corporation Stock Option Plan for Non-Employee Directors (Registration Statement No. 33-95000), incorporated herein by reference.
10.3 Second Amendment to the Cooper Cameron Corporation Stock Option Plan for Non-Employee Directors.
10.4 Cooper Cameron Corporation Retirement Savings Plan (Registration Statement No. 33-95002), incorporated herein by reference.
10.5 Cooper Cameron Corporation Employee Stock Purchase Plan (Registration Statement No. 33-94948), incorporated herein by reference.
10.6 Cooper Cameron Corporation Supplemental Excess
Defined Benefit Plan, filed as Exhibit 10.4 to the
Registration Statement on Form S-4 of Cooper Cameron
Corporation (Commission File No. 33-90288), and
incorporated herein by reference.
10.7 First Amendment to Cooper Cameron Corporation
Supplemental Excess Defined Benefit Plan, effective
as of January 1, 1996.
10.8 Cooper Cameron Corporation Supplemental Excess
Defined Contribution Plan, filed as Exhibit 10.5 to
the Registration Statement on Form S-4 of Cooper
Cameron Corporation (Commission File No. 33-90288),
and incorporated herein by reference.
10.9 First Amendment to Cooper Cameron Corporation
Supplemental Excess Defined Contribution Plan,
effective April 1, 1996.
10.10 Cooper Cameron Corporation Compensation Deferral Plan
(formerly the Cooper Cameron Corporation Management
Incentive Compensation Deferral Plan), effective
January 1, 1996.
10.11 Cooper Cameron Corporation Directors Deferred
Compensation Plan, filed as Exhibit 10.7 to the
Registration Statement on Form S-4 of Cooper Cameron
Corporation (Commission File No. 33-90288), and
incorporated herein by reference.
10.12 Employment Agreement by and between Sheldon R.
Erikson and Cooper Cameron Corporation, effective as
of November 30, 1995, filed as Exhibit 10.9 to the
Annual Report on Form 10-K for 1995 of Cooper Cameron
Corporation, and incorporated herein by reference.
10.13 Employment Agreement by and between Thomas R. Hix and
Cooper Cameron Corporation, effective as of November
30, 1995, filed as Exhibit 10.10 to the Annual Report
on Form 10-K for 1995 of Cooper Cameron Corporation,
and incorporated herein by reference.
10.14 Employment Agreement by and between Franklin Myers
and Cooper Cameron Corporation, effective as of
November 30, 1995, filed as Exhibit 10.11 to the
Annual Report on Form 10-K for 1995 of Cooper Cameron
Corporation, and incorporated herein by reference.
10.15 1995 Management Incentive Compensation Plan of Cooper
Cameron Corporation, dated as of November 14, 1995,
as amended.
10.16 1996 Management Incentive Compensation Plan of Cooper
Cameron Corporation, dated as of February 19, 1996.
10.17 1997 Management Incentive Compensation Plan of Cooper
Cameron Corporation, dated as of December 9, 1996.
10.18 Change in Control Policy of Cooper Cameron
Corporation, approved February 19, 1996.
10.19 Executive Severance Program of Cooper Cameron
Corporation, approved February 19, 1996.
10.20 Credit Agreement, dated as of June 30, 1995, among
Cooper Cameron Corporation and certain of its
subsidiaries and the banks named therein and First
National Bank of Chicago, as agent, filed as Exhibit
4.5 to the Registration Statement on Form S-8 of
Cooper Cameron Corporation (Commission File No.
33-94948), and incorporated herein by reference.
10.21 Amended and Restated Credit Agreement dated as of
March 20, 1997, among Cooper Cameron Corporation and
certain of its subsidiaries and the banks named
therein and First National Bank of Chicago, as agent.
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21 Subsidiaries of registrant.
23 Consent of Independent Auditors.
27 Financial Data Schedule
(B) REPORTS ON FORM 8-K
The Company filed no reports on Form 8-K during the fourth quarter of 1996 and through March 15, 1997.
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ON THIS 19TH DAY OF MARCH, 1997.
BY: /s/ Joseph D. Chamberlain
---------------------------------------
(JOSEPH D. CHAMBERLAIN)
Vice President and Corporate Controller
(Principal Accounting Officer)
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS REPORT HAS BEEN SIGNED ON THIS 19TH DAY OF MARCH, 1997, BELOW BY THE FOLLOWING PERSONS ON BEHALF OF THE REGISTRANT AND IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/s/ C. Baker Cunningham Director
- -----------------------------------
(C. Baker Cunningham)
/s/ Grant A. Dove Director
- -----------------------------------
(Grant A. Dove)
/s/ Sheldon R. Erikson Chairman, President and Chief Executive
- ----------------------------------- Officer (principal executive officer)
(Sheldon R. Erikson)
/s/ Michael E. Patrick Director
- -----------------------------------
(Michael E. Patrick)
/s/ David Ross III Director
- -----------------------------------
(David Ross III)
/s/ Michael J. Sebastian Director
- -----------------------------------
(Michael J. Sebastian)
/s/ Thomas R. Hix Senior Vice President of Finance and
- ----------------------------------- Chief Financial Officer
(Thomas R. Hix) (principal financial officer)
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EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------ ------------------------------------------------------------- --------
3.1 Amended and Restated Certificate of Incorporation of Cooper
Cameron Corporation, dated June 30, 1995, filed as Exhibit 4.2
to the Registration Statement on Form S-8 of Cooper Cameron
Corporation (Commission File No. 33-94948), and incorporated
herein by reference.
3.2 First Amended and Restated Bylaws of Cooper Cameron
Corporation, as amended December 12, 1996.
4.1 Form of Rights Agreement, dated as of May 1, 1995, between
Cooper Cameron Corporation and First Chicago Trust Company of
New York, as Rights Agent, filed as Exhibit 4.1 to the
Registration Statement on Form S-8 of Cooper Cameron
Corporation (Commission File No. 33-94948), and incorporated
herein by reference.
10.1 Cooper Cameron Corporation Long-Term Incentive Plan
(Registration Statement No. 33-95004), incorporated herein by
reference.
10.2 Cooper Cameron Corporation Stock Option Plan for Non-Employee
Directors (Registration Statement No. 33-95000), incorporated
herein by reference.
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EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------ ------------------------------------------------------------- --------
10.3 Second Amendment to the Cooper Cameron Corporation Stock
Option Plan for Non-Employee Directors.
10.4 Cooper Cameron Corporation Retirement Savings Plan
(Registration Statement No. 33-95002), incorporated herein by
reference.
10.5 Cooper Cameron Corporation Employee Stock Purchase Plan
(Registration Statement No. 33-94948), incorporated herein by
reference.
10.6 Cooper Cameron Corporation Supplemental Excess Defined Benefit
Plan, filed as Exhibit 10.4 to the Registration Statement on
Form S-4 of Cooper Cameron Corporation (Commission File No.
33-90288), and incorporated herein by reference.
10.7 First Amendment to Cooper Cameron Corporation Supplemental
Excess Defined Benefit Plan, effective as of January 1, 1996.
10.8 Cooper Cameron Corporation Supplemental Excess Defined
Contribution Plan, filed as Exhibit 10.5 to the Registration
Statement on Form S-4 of Cooper Cameron Corporation
(Commission File No. 33-90288), and incorporated herein by
reference.
10.9 First Amendment to Cooper Cameron Corporation Supplemental
Excess Defined Contribution Plan, effective April 1, 1996.
10.10 Cooper Cameron Corporation Compensation Deferral Plan
(formerly the Cooper Cameron Corporation Management Incentive
Compensation Deferral Plan), effective January 1, 1996.
10.11 Cooper Cameron Corporation Directors Deferred Compensation
Plan, filed as Exhibit 10.7 to the Registration Statement on
Form S-4 of Cooper Cameron Corporation (Commission File No.
33-90288), and incorporated herein by reference.
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EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------ ------------------------------------------------------------- --------
10.12 Employment Agreement by and between Sheldon R. Erikson and
Cooper Cameron Corporation, effective as of November 30, 1995,
filed as Exhibit 10.9 to the Annual Report on Form 10-K for
1995 of Cooper Cameron Corporation, and incorporated herein by
reference.
10.13 Employment Agreement by and between Thomas R. Hix and Cooper
Cameron Corporation, effective as of November 30, 1995, filed
as Exhibit 10.10 to the Annual Report on Form 10-K for 1995 of
Cooper Cameron Corporation, and incorporated herein by
reference.
10.14 Employment Agreement by and between Franklin Myers and Cooper
Cameron Corporation, effective as of November 30, 1995, filed
as Exhibit 10.11 to the Annual Report on Form 10-K for 1995 of
Cooper Cameron Corporation, and incorporated herein by
reference.
10.15 1995 Management Incentive Compensation Plan of Cooper Cameron
Corporation, dated as of November 14, 1995, as amended.
10.16 1996 Management Incentive Compensation Plan of Cooper Cameron
Corporation, dated as of February 19, 1996.
10.17 1997 Management Incentive Compensation Plan of Cooper Cameron
Corporation, dated as of December 9, 1996.
10.18 Change in Control Policy of Cooper Cameron
Corporation, approved February 19, 1996.
10.19 Executive Severance Program of Cooper Cameron
Corporation, approved February 19, 1996.
10.20 Credit Agreement, dated as of June 30, 1995, among
Cooper Cameron Corporation and certain of its
subsidiaries and the banks named therein and First
National Bank of Chicago, as agent, filed as Exhibit
4.5 to the Registration Statement on Form S-8 of
Cooper Cameron Corporation (Commission File No.
33-94948), and incorporated herein by reference.
10.21 Amended and Restated Credit Agreement dated as of
March 20, 1997, among Cooper Cameron Corporation and
certain of its subsidiaries and the banks named
therein and First National Bank of Chicago, as agent.
13.1 Portions of 1996 Annual Report to Stockholders are included as
an exhibit to this report and have been specifically
incorporated by reference elsewhere herein.
21 Subsidiaries of registrant.
23 Consent of Independent Auditors.
27 Financial Data Schedule (for SEC purposes only)
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Section 1. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware or at such other place within the State of Delaware as the Board of Directors of the Corporation (the "Board of Directors") may at any time and from time to time designate.
Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may at any time and from time to time determine.
Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect by a plurality vote a Board of Directors and transact such other business as may properly be brought before the meeting. Except as otherwise required by law, written notice of the annual meeting stating the place, date and hour of the meeting shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting at such address as shall appear on the books of the Corporation.
Section 3. Special Meetings. Unless otherwise prescribed by
law or by the Certificate of Incorporation of the Corporation (the "Certificate
of Incorporation"), special meetings of stockholders, for any purpose or
purposes, may be called by (i) the Chairman, (ii) the President, or (iii) a
majority of the entire Board of Directors. Special meetings of stockholders
may not be called by any other person or persons. Such request shall state the
purpose or purposes of the proposed meeting, and the business transacted at a
special meeting of stockholders shall be confined to the purpose or purposes
specified in
Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. Except as otherwise provided pursuant to the Certificate of Incorporation as to any series or class of Preferred Stock, each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy, but no proxy shall be voted on or after three years from its date unless such proxy provides for a longer period. The Board of Directors, in its sole discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot; provided, that, notwithstanding the foregoing, elections of directors at an annual or special meeting of stockholders shall be written ballot.
Section 6. No Written Consent. Except as otherwise provided by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken only upon the vote of the stockholders at an annual or special meeting duly noticed and called as provided in these Bylaws, and may not be taken by written consent of stockholders pursuant to the General Corporation Law of the State of Delaware.
Section 7. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.
Section 8. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed to stockholders or public disclosure of the date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially and of record by such stockholder,
(iv) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business, and (v) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 9; provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 9 shall be deemed to preclude discussion by any stockholder of any such business. If the Chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
Section 1. Number and Election of Directors. The Board of Directors shall consist of not less than five nor more than fifteen members, the exact number of directors to be determined from time to time by resolution adopted by a majority of the entire Board of Directors. The directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as
Section 2. Advance Notice of Director Nominations. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Certificate of Incorporation of the Corporation with respect to the right of holders of Preferred Stock of the Corporation to nominate and elect a specified number of directors in certain circumstances. Nominations of persons for election to the Board of Directors may be made at any annual meeting of stockholders (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) who complies with the notice procedures set forth in this Section 2.
In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which notice of the date of the annual meeting was mailed to stockholders or public disclosure of the date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes
to nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially and of record by the person and
(iv) any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder;
No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2. If the Chairman of the annual meeting determines that a nomination was not made in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.
Section 3. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President, or any director. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, facsimile transmission or telegram on twenty-four (24) hours' notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 6. Actions of Board Unless otherwise provided by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of
Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required.
Section 9. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
Section 10. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
Section 11. Advisory Directors. The Chairman of the Board of Directors may appoint one or more individuals to serve as advisory directors to the Corporation for a term of one year or less. Any Advisory Director may be reappointed annually. An Advisory Director appointed by the Chairman shall be paid the consideration paid to Directors unless otherwise agreed to between the Chairman and any such Advisory Director. The Advisory Directors shall be invited to attend meetings of the Board of Directors, but shall not serve on any committee nor shall have the ability to vote on any action taken by the Board of Directors. The Advisory Director shall attend for purposes of advising and counseling the members of the Board of Directors on matters that come before the Board of Directors.
Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board of Directors, a Chief Executive Officer, a President, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose one or more Vice
Section 2. Election. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the entire Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by a majority of the entire Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President, the Treasurer or the Secretary and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors shall preside at all meetings of the Board of Directors and shall be chairman of all meetings of stockholders, and shall do and perform such other duties and may exercise such other powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President.
Section 5. Chief Executive Officer. The Chief Executive Officer of the Corporation, subject to the approval or direction or authorization of the Board of Directors, shall have general executive charge of the business and property of the Corporation, sign and execute, or delegate to the President or any Vice President the signing and execution of, all authorized contracts, certificates and other instruments of the Corporation, and do and perform such additional duties as shall be ordered by the Board of Directors. Either the Chairman of the Board or the President of the Corporation shall be chosen Chief Executive Officer by the Board of Directors.
Section 6. President. The President shall, subject to the control of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. In the absence or disability of the Chairman of the Board of Directors, the President shall perform the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all the restrictions of the Chairman of the Board of Directors. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 7. Vice Presidents. At the request of the President or, subject to Section 4 of this Article IV, in the President's absence or inability or refusal to act, the Vice President or the Vice
Section 8. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he or she shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.
Section 9. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all such officer's transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.
Section 10. Assistant Secretaries. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his or her disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
Section 11. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer, or in the event of his or her disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a
Section 12. Other Officers Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than the Corporation or its employee or (ii) a registrar other than the Corporation or its employee, any other signature on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his or her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex, facsimile transmission or cable, in which event notice shall be deemed given upon receipt.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
The power, right and obligation of the Corporation to indemnify any director or officer of the Corporation and employees and agents of the Corporation shall be as set forth in Article TWELFTH of the Certificate of Incorporation. All directors and officers of the Corporation shall be entitled to indemnification as set forth in the Certificate of Incorporation.
These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of two-thirds (2/3) of the outstanding voting stock of the Corporation thereon or by a majority of the entire Board of Directors then in office; provided, however, notwithstanding any other provisions of these Bylaws or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any particular class or series of stock required by law, the Certificate of Incorporation or these Bylaws, the favorable vote, at a meeting of stockholders of the Corporation, of the holders of at least eighty percent (80%) of the outstanding voting stock of the Corporation entitled to vote shall be required for any alteration, amendment or repeal of Article II, Sections 3 and 6; Article III, Section 1, Article VII, Section 5 and this Article IX.
FIRST ADOPTED 6/28/95
AMENDED 12/2/96
WHEREAS, COOPER CAMERON CORPORATION (the "Company") has heretofore
adopted the COOPER CAMERON CORPORATION AMENDED AND RESTATED 1995 STOCK OPTION
PLAN FOR NON-EMPLOYEE DIRECTORS (the "Plan"); and
WHEREAS, the Company desires to amend the Plan in certain respects;
NOW, THEREFORE, the Plan shall be amended as follows, effective as of December 11, 1996:
1. The phrase "and advisory director" shall be added after the word "director" in the first sentence of Section 1 of the Plan.
2. The phrase "and advisory director" shall be added after the word "director" in Section 3 of the Plan.
3. The phrase "or advisory director" shall be added after the word "director" in each place that it appears in Section 17 of the Plan.
4. As amended hereby, the Plan is specifically ratified and
reaffirmed.
WHEREAS, COOPER CAMERON CORPORATION (the "COMPANY") has heretofore adopted the COOPER CAMERON CORPORATION SUPPLEMENTAL EXCESS DEFINED BENEFIT PLAN (the "PLAN") for the benefit of its eligible employees; and
WHEREAS, the Company desires to amend the Plan;
NOW, THEREFORE, in consideration of the premises, the Plan shall be and is hereby amended as follows, effective as of 1996:
1. The reference to "Cooper Cameron Corporation Management Incentive Compensation Deferral Plan" in Section 1.1(h) of the Plan shall be deleted and the reference "Cooper Cameron Corporation Compensation Deferral Plan" shall be substituted therefor.
2. Article IV of the Plan shall be deleted and the following shall be substituted therefor:
The supplemental benefits determined under Article III payable on account of a Participant's death shall be paid to the same recipient(s) in the same manner and form as, and coincident with the payment of the death benefits payable on behalf of such Participant under the Cooper Cameron Salaried Plan, utilizing the factor or conditions applicable to such recipient's benefit under the Cooper Cameron Salaried Plan. The supplemental benefits determined under Article III payable other than on account of the Participant's death shall be paid to the Participant in the form of a benefit for the life of the Participant beginning as of the date he attains age 65 or, if later, his termination of employment with the Company; provided, however, the Compensation Committee of the Board may, in its sole discretion, direct that such supplemental benefits be paid to or on behalf of a Participant to the same recipient(s) in the same manner and form as, and
3. As amended hereby, the Plan is specifically ratified and reaffirmed.
EXECUTED at Houston, Texas, this 20th day of February, 1996.
BY: /s/ Franklin Myers
---------------------------------
Name: FRANKLIN MYERS
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WHEREAS, COOPER CAMERON CORPORATION (THE "COMPANY") has heretofore adopted the COOPER CAMERON CORPORATION SUPPLEMENTAL EXCESS DEFINED CONTRIBUTION PLAN (THE "PLAN") for the benefit of the eligible employees of the Employer (as defined in the Plan); and
WHEREAS, the Company desires to amend the Plan;
NOW, THEREFORE, in consideration of the premises, the Plan shall be and is hereby amended as follows, effective as of April 1, 1996:
1. The references to "Section 401(a)(17) or Section 415" in the first "WHEREAS" clause and in Article II of the Plan shall be deleted and the references "Section 401(a)(17), 401(k)(3), 401(m), 402(g)(l) or 415" shall be substituted therefor.
2. The reference to "Cooper Cameron Corporation Management Incentive Compensation Deferral Plan" in Section 1.1(g) of the Plan shall be deleted and the reference "Cooper Cameron Corporation Compensation Deferral Plan" shall be substituted therefor.
3. The references to "Sections 401(a)(17) and 415" in Sections 3.1(a) and
(b) of the Plan shall be deleted and the references "Section 401(a)(17),
401(k)(3), 401(m), 402(g)(1) and 415" shall be substituted therefor.
4. The following shall be added to Section 3.1 of the Plan:
"Notwithstanding the foregoing, the credits pursuant to paragraph (a) above respecting the provisions of Sections 401 (a)(17), 401(m), and 415 of the Code and pursuant to paragraph (b) above are contingent upon such Member electing the maximum cash or deferred contributions under the Cooper Cameron Savings Plan pursuant to Section 402(g) of the Code or as permitted under the terms of the Cooper Cameron Savings Plan."
5. The references to "Sections 401(a)(17) and 415" in Section 3.2 of the
Plan shall be deleted and the references "Section 401(a)(17), 401(k)(3),
402(g)(1) and 415" shall be substituted therefor.
6. The reference to "6%" in Section 3.2 of the Plan shall be deleted and the reference "10%" shall be substituted there for.
"preceding April 1, 1996,"
8. The reference to "Supplemental Matching and Supplemental Basic Accounts" in the first sentence of Section 5.1 of the Plan shall be deleted and the reference "Supplemental Matching, Supplemental Basic and Supplemental Post-Tax Accounts" shall be substituted therefor.
9. The reference to "Section 3.3" in the second sentence of Section 5.1 of the Plan shall be deleted and the reference "Section 3.4" shall be substituted therefor.
10. The first sentence of Section 5.2 of the Plan shall be deleted and the following shall be substituted therefor:
"The benefits payable under the Plan from a Participant's Supplemental Matching, Supplemental Basic and Supplemental Post-Tax Accounts shall be paid to the Participant, or in the event of his death to his Beneficiary, in one lump sum payment; provided, however, the Compensation Committee of the Board may, in its sole discretion, direct that such benefits be paid to or on behalf of a Participant to the same recipient(s) in the same manner and form as, and coincident with, the payment of the benefits of such Participant under the Cooper Cameron Savings Plan."
11. As amended hereby, the Plan is specifically ratified and reaffirmed.
EXECUTED at Houston, Texas, this 20th day of February, 1996.
BY: /s/ Franklin Myers
----------------------------------
NAME: Franklin Myers
TITLE: Senior Vice President,
General Counsel and Secretary
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ARTICLE I - DEFINITIONS 1
1.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 1
(a) AFFILIATE . . . . . . . . . . . . . . . . . 1
(b) BASE SALARY . . . . . . . . . . . . . . . . 1
(c) BENEFICIARY . . . . . . . . . . . . . . . . 1
(d) BOARD . . . . . . . . . . . . . . . . . . . 1
(e) CHANGE OF CONTROL . . . . . . . . . . . . . 1
(f) CODE . . . . . . . . . . . . . . . . . . . . 1
(g) COMMITTEE . . . . . . . . . . . . . . . . . 1
(h) COMPANY . . . . . . . . . . . . . . . . . . 1
(i) COMPANY DEFERRAL . . . . . . . . . . . . . . 1
(j) DEFERRED COMPENSATION . . . . . . . . . . . 2
(k) EFFECTIVE DATE . . . . . . . . . . . . . . . 2
(l) EMPLOYER . . . . . . . . . . . . . . . . . . 2
(m) INCENTIVE AWARD . . . . . . . . . . . . . . 2
(n) PARTICIPANT . . . . . . . . . . . . . . . . 2
(o) PLAN . . . . . . . . . . . . . . . . . . . . 2
(p) PLAN ACCOUNT . . . . . . . . . . . . . . . . 2
(q) UNFORSEEABLE FINANCIAL EMERGENCY . . . . . . 2
1.2 CONSTRUCTION . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II - ELIGIBILITY FOR PLAN PARTICIPATION . . . . . . . . . . . . 3
2.1 ELIGIBLE CLASS . . . . . . . . . . . . . . . . . . . 3
2.2 ELIGIBLE EMPLOYEES . . . . . . . . . . . . . . . . . 3
2.3 PARTICIPATION . . . . . . . . . . . . . . . . . . . . 3
(a) BASE SALARY . . . . . . . . . . . . . . . . 3
(b) INCENTIVE AWARD . . . . . . . . . . . . . . 3
(c) COMPANY DEFERRAL . . . . . . . . . . . . . . 3
2.4 TIME OF MAKING ELECTIONS . . . . . . . . . . . . . . 3
2.5 NATURE OF ELECTIONS . . . . . . . . . . . . . . . . . 3
ARTICLE III - CREDITING OF DEFERRED COMPENSATION TO PLAN ACCOUNTS . . . 4
3.1 ESTABLISHMENT OF PLAN ACCOUNTS . . . . . . . . . . . 4
3.2 CREDITING OF INTEREST EQUIVALENTS . . . . . . . . . . 4
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ARTICLE IV - PAYMENT OF DEFERRED COMPENSATION AMOUNTS . . . . . . . . . 4
4.1 PAYMENT OF DEFERRED COMPENSATION. . . . . . . . . . . 4
4.2 UNFORESEEABLE FINANCIAL EMERGENCY . . . . . . . . . . 5
4.3 CHANGE IN PURPOSE . . . . . . . . . . . . . . . . . . 5
4.4 CHANGE OF CONTROL . . . . . . . . . . . . . . . . . . 5
4.5 NO FORFEITURE OF DEFERRED COMPENSATION. . . . . . . . 5
4.6 DEBITING OF PLAN ACCOUNTS . . . . . . . . . . . . . . 5
ARTICLE V - BENEFICIARIES . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE VI - ADMINISTRATIVE PROVISIONS . . . . . . . . . . . . . . . . 6
6.1 POWERS AND RESPONSIBILITIES OF THE BOARD . . . . . . 6
6.2 ACTIONS OF THE BOARD . . . . . . . . . . . . . . . . . 6
6.3 EXPENSES . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VII - AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . 6
ARTICLE VIII - ADOPTION BY SUBSIDIARIES .... . . . . . . . . . . . . . 7
ARTICLE IX - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 7
9.1 NON-ALIENATION OF BENEFITS . . . . . . . . . . . . . . 7
9.2 PAYMENT OF BENEFITS TO OTHERS . . . . . . . . . . . . 7
9.3 PLAN NON-CONTRACTUAL . . . . . . . . . . . . . . . . . 7
9.4 FUNDING . . . . . . . . . . . . . . . . . . . . . . . 7
9.5 CLAIMS OF OTHER PERSONS . . . . . . . . . . . . . . . 7
9.6 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . 8
9.7 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 8
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COOPER CAMERON CORPORATION (hereinafter referred to as the "COMPANY") hereby restates the COOPER CAMERON CORPORATION MANAGEMENT INCENTIVE COMPENSATION DEFERRAL PLAN into the form herein and hereby renames such plan as the "COOPER CAMERON CORPORATION COMPENSATION DEFERRAL PLAN" (hereinafter referred to as the "PLAN"), effective as of January 1, 1996, to provide a method of attracting and retaining key employees of the Employer (as defined herein) and to encourage such key employees to remain with and devote their best efforts to the business of the Employer, thereby advancing the interests of the Employer.
1.1 DEFINITIONS. Except as otherwise required by the context, the terms used in the Plan shall have the meaning hereinafter set forth.
(a) AFFILIATE. The term "AFFILIATE" shall mean any member of a controlled group of corporations (as determined under section 414(b) of the Code) of which the Company is a member, any member of a group of trades or businesses under common control (as determined under section 414(c) of the Code) with the Company, and any member of an affiliated service group (as determined under section 414(m) of the Code) of which the Company is a member.
(b) BASE SALARY. The term "BASE SALARY" shall mean the base salary from the Employer earned by a Participant for services rendered or labor performed during a calendar year, which, except to the extent of participation in this Plan, would become payable as of the Employer's payroll dates during such calendar year.
(c) BENEFICIARY. The term "BENEFICIARY" shall mean the person who, in accordance with the provisions of Article V of the Plan, shall be entitled to receive payment of the Participant's Deferred Compensation in the event the Participant dies before his interest under the Plan has been distributed to him in full.
(d) BOARD. The term "BOARD" shall mean the Board of Directors of the Company.
(e) CHANGE OF CONTROL. The term "CHANGE OF CONTROL" with respect to the Company shall have the same meaning as such term has in the Cooper Cameron Corporation Long-Term Incentive Plan.
(f) CODE. The term "CODE" shall mean the Internal Revenue Code of 1986, as amended from time to time. Reference to a section of the Code shall include such section and any comparable section or sections of any future legislation that amends, supplements, or supersedes such section.
(g) COMMITTEE. The term "COMMITTEE" shall mean (1) for the period preceding a Change in Control, the Compensation Committee of the Board, (2) for the two-year period following a Change in Control, the individuals who comprised the Compensation Committee of the Board immediately prior to the Change in Control, acting in their individual capacities, and (3) thereafter, the Committee appointed by the Company.
(h) COMPANY. The term "COMPANY" shall mean Cooper Cameron Corporation, its corporate successors, and the surviving corporation resulting from any merger of Cooper Cameron Corporation with any other corporation or corporations.
(i) COMPANY DEFERRAL. The term "COMPANY DEFERRAL" shall mean the deferred compensation benefits authorized in the sole discretion of the Company, on behalf of a Participant pursuant to Section 2.3(c) of the Plan.
(k) EFFECTIVE DATE. The term "EFFECTIVE DATE" shall mean January 1, 1996, as to this restatement of the Plan.
(l) EMPLOYER. The term "EMPLOYER" shall mean the Company, as well as any Affiliate that may adopt the Plan in accordance with the provisions of Article VIII of the Plan.
(m) INCENTIVE AWARD. The term "INCENTIVE AWARD" shall mean compensation or bonus earned from the Employer by a Participant during, and awarded to the Participant for, a calendar year under the Cooper Cameron Corporation Management Incentive Plan, which, except to the extent of participation in this Plan, would become payable in one lump sum in the calendar year next following such calendar year.
(n) PARTICIPANT. The term "PARTICIPANT" shall mean any employee of an Employer who is eligible to participate in the Plan and who elects to participate in the Plan pursuant to Article II of the Plan.
(o) PLAN. The term "PLAN" shall mean the Cooper Cameron Corporation Compensation Deferral Plan as set forth herein.
(p) PLAN ACCOUNT. The term "PLAN ACCOUNT" shall mean the account established and maintained on behalf of a Participant under the Plan pursuant to the provisions of Article III.
(q) UNFORESEEABLE FINANCIAL EMERGENCY. An unexpected need for cash that
(1) arises from an illness, casualty loss, sudden financial reversal,
or such other unforeseeable occurrence that is caused by an event
beyond the control of such individual, (2) would result in severe
financial hardship to such individual, and (3) is not reasonably
satisfiable from other resources. Cash needs arising from foreseeable
events, such as the purchase of a house or education expenses for
children, shall not be considered to be the result of an Unforeseeable
Financial Emergency.
1.2 CONSTRUCTION. Except as otherwise indicated by context, masculine terminology used herein also includes the feminine and neuter, and terms used in the singular may also include the plural.
2.1 ELIGIBLE CLASS. Key employees of the Employer (including those employees who are eligible to receive Incentive Awards for a calendar year) shall be within the class of employees eligible to participate in the Plan.
2.2 ELIGIBLE EMPLOYEES. Those employees within the eligible class described in Section 2.1 above who have been selected for eligibility by the Board, from time to time, shall be eligible employees for purposes of the Plan.
2.3 PARTICIPATION. Participation in the Plan shall be as follows:
(a) BASE SALARY. An eligible employee may elect to become a Participant in the Plan with respect to the Base Salary to be earned by such employee during a calendar year by filing with the Company an election to defer the receipt of all or a portion of his Base Salary for that calendar year. The election to participate in the Plan shall specify (1) the integral percentage (from 1% to 100%) or (2) a certain dollar amount for the calendar year.
(b) INCENTIVE AWARD. An eligible employee may elect to become a Participant in the Plan with respect to the Incentive Award to be earned by such employee during a calendar year by filing with the Company an election to defer the receipt of all or a portion of his Incentive Award for that calendar year. The election to participate in the Plan shall specify (1) the integral percentage (from 1% to 100%), (2) a certain dollar amount, or (3) the amount in excess of a certain dollar amount for the calendar year.
(c) COMPANY DEFERRAL. An eligible employee shall become a Participant in the Plan with respect to any Company Deferrals authorized on behalf of such employee for a calendar year. Any such Company Deferrals shall be in the sole discretion of the Company and may apply to selected employees for selected calendar years.
2.4 TIME OF MAKING ELECTIONS. Any election which may be made by a
Participant under this Article II must be made not later than December 31 of
the calendar year preceding the calendar year during which the Base Salary
and/or Incentive Award to which such election relates is earned.
Notwithstanding the foregoing, for any calendar year during which an employee
first becomes eligible to participate in the Plan, elections as to the
Participant's Base Salary and/or Incentive Award must be made within 30 days of
such employee first becoming so eligible and (i) with respect to such Base
Salary, shall apply to the first payroll period following such election and
(ii) with respect to such Incentive Award, shall apply to the entire Incentive
Award for such calendar year; provided, the amount of such Incentive Award is
not reasonably ascertainable at the time of such initial eligibility. All
elections shall be made in the manner and form prescribed by the Company.
2.5 NATURE OF ELECTIONS. Any election which may be made by a Participant under Article II with respect to the Participant's Base Salary and/or Incentive Award for a calendar year shall be irrevocable once made. A Participant's election for any calendar year shall not automatically carry over to subsequent calendar years.
3.1 ESTABLISHMENT OF PLAN ACCOUNTS. The Company shall establish a Plan Account for each Participant in the Plan, and the Company shall credit to the Participant's Plan Account the Participant's Deferred Compensation for each calendar year. Deferred Compensation pursuant to Section 2.3(a) shall be credited as such Base Salary is deferred as of the end of each payroll period within such calendar year. Deferred Compensation pursuant to Section 2.3(b) shall be credited as of the date such Incentive Award would have been payable in the calendar year following such calendar year. Deferred Compensation pursuant to Section 2.3(c) shall be credited as of the date determined by the Company during such calendar year.
3.2 CREDITING OF INTEREST EQUIVALENTS. As of the last day of each
calendar year, Deferred Compensation credited to a Participant's Plan Account
shall be credited with interest equivalents, as additional Deferred
Compensation, in an amount equal to simple interest, at a rate of interest
equal to the average of the Chase Manhattan Bank Average Quarterly Prime Rates
for such calendar year. Such interest equivalents shall be credited (i) on the
amount of Deferred Compensation (including any interest equivalents previously
credited pursuant to this Section 3.2) credited as of the last day of the
calendar year preceding such calendar year, (ii) on 50% of the Deferred
Compensation credited during such calendar year pursuant to Section 2.3(a), and
(iii) on the Deferred Compensation credited during such calendar year pursuant
to Sections 2.3(b) and 2.3(c) multiplied by a fraction, the numerator of which
is the number of days between the date(s) such Deferred Compensation was
credited during such calendar year and the end of such calendar year and the
denominator of which is 365.
4.1 PAYMENT OF DEFERRED COMPENSATION. Payment of the Deferred Compensation of a Participant for all calendar years shall be made following such Participant's termination of employment with the Employer, with the time and manner of such payment to be determined in the sole discretion of the Compensation Committee of the Board. The time of commencement of payment shall be as of such termination, as of a specified age following such termination, or as of a specified date following such termination. The manner of such payment shall be a lump sum or installments for a five-, ten-, or fifteen-year period, or a combination thereof. In making its determination as to time and manner of payment, the Committee may consider the age, family status, health, financial status, or such other factors as it deems relevant respecting the Participant. The Participant may, but shall not be required to, express his preference to the Committee as to the time and manner of payment of his Deferred Compensation, but the Committee shall be under no obligation to follow such preference. All Deferred Compensation shall be paid in cash. In the event the Participant is to receive Deferred Compensation in installments, the amount of each such installment shall be equal to a fraction of the amount of the Deferred Compensation remaining to be paid with respect to such Deferred Compensation, the numerator
4.2 UNFORESEEABLE FINANCIAL EMERGENCY. Plan provisions to the contrary notwithstanding, in the event of an Unforeseeable Financial Emergency of the Participant or his Beneficiary, as determined in the sole discretion of the Committee, payment of Deferred Compensation shall be accelerated by being made in one lump sum as soon as practicable following the Committee's determination of such Unforeseeable Financial Emergency. The amount of such Deferred Compensation so accelerated shall be the amount the Committee determines as necessary to meet the needs created by the Unforeseeable Financial Emergency.
4.3 CHANGE IN PURPOSE. Plan provisions to the contrary notwithstanding, in the event of a major tax law change or other reason, as determined in the sole discretion of the Committee, which makes the continued deferral of payment of Deferred Compensation undesirable, payment of all of the Participants' Deferred Compensation shall be accelerated by being made in one lump sum as soon as practicable following the Committee's determination to discontinue deferrals.
4.4 CHANGE OF CONTROL. Plan provisions to the contrary notwithstanding, if there is a Change of Control, the Committee may, in its sole discretion, fix a date, on or prior to the effective date of such Change of Control, as of which all remaining Deferred Compensation then credited to Participants' Plan Accounts may be paid in one lump sum or in installments, as determined in the sole discretion of the Committee.
4.5 NO FORFEITURE OF DEFERRED COMPENSATION. All Deferred Compensation credited to a Participant's Plan Account shall, in all cases, be nonforfeitable.
4.6 DEBITING OF PLAN ACCOUNTS. Once an amount of Deferred Compensation has been paid, such amount shall be debited from the Participant's Plan Account and shall cease to exist.
A Participant, by written instrument filed with the Company in such manner and form as the Company may prescribe, may designate one or more beneficiaries to receive payment of the Participant's Deferred Compensation in the event the Participant dies before his interest under the Plan is distributed to him in full. Any such beneficiary designation may be changed from time to time prior to the death of the Participant. In the absence of a beneficiary designation on file with the Company at the time of the Participant's death, the Deferred Compensation remaining to be paid to the Participant shall be paid as it becomes due under the Plan to the executors or administrator of the Participant's estate.
6.1 POWERS AND RESPONSIBILITIES OF THE BOARD. The Board shall have full power and authority to interpret, construe, and administer the Plan and its interpretations and constructions hereof, and actions hereunder, including the timing, form, amount, or recipient of any payment to be made hereunder, shall be binding and conclusive on all persons for all purposes. In exercising such powers, authorities, and responsibilities, the Board shall at all times exercise good faith and refrain from arbitrary action. The Board may delegate any of its powers, authorities, or responsibilities for the operation and administration of the Plan to a person or committee other than itself and may employ such attorneys, agents, or accountants as it may deem necessary or advisable to assist it in carrying out its duties hereunder. The Board has, to the extent provided herein, delegated certain of such powers and responsibilities to the Committee.
6.2 ACTIONS OF THE BOARD. Any act authorized, permitted, or required to be taken by the Board under the Plan, which has not been delegated in accordance with the provisions of Section 6.1, may be taken by a majority of the members of the Board, either by vote at a meeting, or in writing without a meeting. All notices, advice, directions, certifications, approvals, and instructions required or authorized to be given by the Company under the Plan shall be in writing and signed by either (i) a majority of the members of the Board, or by such member or members as may be designated in writing, signed by all the members thereof, as having authority to execute such documents on its behalf, or (ii) a person or committee who becomes authorized to act for the Board in accordance with the provisions of Section 6.1. Any action which is taken by the Board under the Plan shall be final, conclusive, and binding upon the Company, all persons who have a claim or interest under the Plan, and all third parties dealing with the Company or Board.
6.3 EXPENSES. Any expenses properly incurred incident to the administration, termination, or protection of the Plan, including the cost of furnishing any bond or security, shall be paid by the Company.
The Company reserves the right to amend or terminate the Plan at any time by action of the Board; provided, however, that (i) no such action shall adversely affect the rights of any Participant with respect to Deferred Compensation thereto credited to such Participant's Plan Account, unless an equivalent benefit is provided under another plan or program sponsored by an Employer, and (ii) no change may be made in the Committee's power and responsibility to determine the time and manner of payment of Deferred Compensation pursuant to Section 4.1 following a Change in Control.
Any Subsidiary of the Company which is not an Employer may, with the consent of the Company, adopt the Plan and become an Employer hereunder by causing an appropriate written instrument evidencing such adoption to be executed pursuant to the authority of its Board of Directors and filed with the Company.
9.1 NON-ALIENATION OF BENEFITS. No benefit under the Plan shall at any time be subject in any manner to alienation or encumbrance. If any Participant or Beneficiary shall attempt to, or shall alienate or in any way encumber his benefits under the Plan, or any part thereof, or if by reason of his bankruptcy or other event happening at any time, any such benefits would otherwise be received by anyone else or would not be enjoyed by him, his interest in all such benefits shall automatically terminate and the same shall be held or applied to or for the benefit of such person, his spouse, children, or other dependents as the Company may select
9.2 PAYMENT OF BENEFITS TO OTHERS. If any Participant or Beneficiary to whom a benefit is payable is unable to care for his affairs because of illness or accident, any payment due (unless prior claim therefor shall have been made by a duly qualified guardian or other legal representative) may be paid to the spouse, parent, brother, or sister, or any other individual deemed by the Company to be maintaining or responsible for the maintenance of such person. Any payment made in accordance with the provisions of this Section 9.2 shall be a complete discharge of any liability of the Plan with respect to the benefit so paid.
9.3 PLAN NON-CONTRACTUAL. Nothing herein contained shall be construed as a commitment or agreement on the part of any person employed by an Employer to continue his employment with an Employer, and nothing herein contained shall be construed as a commitment on the part of an Employer to continue the employment or the annual rate of compensation of any such person for any period, and all Participants shall remain subject to discharge to the same extent as if the Plan had never been established.
9.4 FUNDING. In order to provide a source of payment for its obligations under the Plan, the Company may establish a trust fund. Subject to the provisions of the trust agreement governing such trust fund, the obligation of an Employer under the Plan to provide a Participant or a Beneficiary with a benefit constitutes the unsecured promise of such Employer to make payments as provided herein, and no person shall have an interest in, or a lien or prior claim upon, any property of the Employer.
9.5 CLAIMS OF OTHER PERSONS. The provisions of the Plan shall in no event be construed as giving any person, firm, or corporation any legal or equitable right as against an Employer, its officers, employees, or directors, except any such rights as are specifically provided for in the Plan or are hereafter credited in accordance with the terms and provisions of the Plan.
9.7 GOVERNING LAW. The provisions of the Plan shall be governed and construed in accordance with the laws of the State of Texas.
BY: /s/ Franklin Myers
---------------------------------
NAME: Franklin Myers
TITLE: Senior Vice President, General
Counsel and Secretary
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I. PURPOSE
The Cooper Cameron Management Incentive Compensation Plan (the "Plan"), has been designed to motivate and reward key management employees whose efforts impact the performance of Cooper Cameron Corporation (the "Company") and its subsidiaries through the achievement of pre-established financial and individual objectives.
Performance under the Plan is measured on the fiscal (calendar) year and payments under the Plan are made annually.
II. ELIGIBILITY
Officers and key management employees may be eligible to participate in the plan, upon the recommendation of their manager and approval by the Chief Executive Officer of the Company. An employee who is eligible to participate in any other cash incentive plan of the company is not eligible to participate in this Plan.
III. AWARD CRITERIA
The Compensation Committee of the Board of Directors is responsible for approving the Company performance objectives that are used to determine awards paid for Company objectives under this plan. Performance objectives for operating units below the corporate level will be established by the appropriate manager subject to overall approval of the Chief Executive Officer. For 1995, performance under the Plan will be determined based on:
A target award percentage is established for each position eligible to participate in the Plan. For 1995, the actual target award will be determined by applying this percentage to your base pay in effect at January 1, 1995, multiplied by 12, if you were a participant in the Plan for the full year. If you became eligible to participate in the Plan after January 1, 1995, your target award percentage will be applied to your base pay in effect at the date you became a participant, multiplied by the number of months in 1995 in which you were a plan participant.
Generally, target award is paid when performance under the Plan meets, but does not exceed pre-established performance objectives.
V. AWARD CATEGORIES
For 1995, a participant may have Company Objectives, Division Objectives, Business Unit Objectives and/or Individual Objectives, each of which is assigned by the immediate manager and provided a weighting in determining the Target Award.
- ------------------------------------------------------------------------------------------------
PERFORMANCE WEIGHTING
- ------------------------------------------------------------------------------------------------
CORPORATE OBJECTIVE DIVISION OBJECTIVE BUSINESS UNIT
- ------------------------------------------------------------------------------------------------
Corporate Participants 100% - -
- ------------------------------------------------------------------------------------------------
Divisions:
Division President 20% 80%
- ------------------------------------------------------------------------------------------------
Staff Managers 20% 80% -
- ------------------------------------------------------------------------------------------------
Business Unit Managers 20% 30% 50%
- ------------------------------------------------------------------------------------------------
All Other Eligible Positions Weighting To be Determined by Immediate Manager
- ------------------------------------------------------------------------------------------------
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VI. PERFORMANCE MEASUREMENT
Entry This is the level of performance at or below
which no award will be generated for this
particular objective of the plan.
Target Award This is the expected level of performance
based on the current year's financial plan.
Overachievement (OA) This is the level at which the maximum award
under the plan will be paid and the maximum
award is limited to 150% of TA.
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Performance above or below target will be prorated down/up to the entry/overachievement levels established for each financial objective.
VII. AWARD CALCULATION
Following are examples of how awards are calculated under the Plan:
A. Assume the following financial objectives:
Cooper Cameron Target EBITDA Objective $100 million Entry Level Objective $ 90 million Overachievement (OA) Objective $125 million Division Target EBITDA Objective $ 25 million Entry Level Objective $ 20 million Overachievement (OA) Objective $ 31 million |
B. Assume actual EBITDA performance as follows:
Cooper Cameron $110m
Division $ 22m
Then Corporate Attainment = 120% ($110m prorated between $100m target
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And Division Attainment = 40% ($22m prorated between $25m target and $20m entry)
January 1, 1995 base pay = $6,000 per month
Target Award Percentage = 20%
Target Award = $14,400 ($6000 x 12 x 20%)
Award based 100% on total Cooper Cameron performance
Actual payment = Target Award x 120% Attainment = $14,400 x 120% = $17,280
D. Division Participant
January 1, 1995 Base Pay = $6,000 per month
Target Award Percentage = 30%
Target Award = $21,600
Award Weighting:
Actual Payment = Target Award x 20% x Corporate Attainment
Plus
Target Award x 80% x Division Attainment
$21,600 x 20% x 120% = $ 5,184
Plus +
$21,600 x 80% x 40% = 6,912
--------
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VII. Any awards generated under the 1995 MICP must be approved by the Compensation Committee. It is anticipated that 1995 MICP Awards will be paid in February 1996. Employees terminating prior to the end of the fiscal year are not eligible for payment of any award under this plan.
I. PURPOSE
The Cooper Cameron Management Incentive Compensation Plan (the "Plan"), has been designed to motivate and reward key management employees whose efforts impact the performance of Cooper Cameron Corporation (the "Company") and its subsidiaries through the achievement of pre-established financial and individual objectives.
Performance under the Plan is measured on the fiscal (calendar) year and payments under the Plan are made annually.
II. ELIGIBILITY
Officers and key management employees may be eligible to participate in the plan, upon the recommendation of their manager and approval by the Chief Executive Officer of the Company. An employee who is eligible to participate in any other cash incentive plan of the company is not eligible to participate in this Plan.
III. AWARD CRITERIA
The Compensation Committee of the Board of Directors is responsible for approving the Company performance objectives that are used to determine awards paid for Company objectives under this plan. Performance objectives for operating units below the corporate level will be established by the appropriate manager subject to overall approval of the Chief Executive Officer. For 1996, performance under the Plan will be determined based on:
Earnings Before Interest, Taxes and Depreciation (EBITDA) Return on Equity (ROE)
The basic measure of financial performance under this Plan will be EBITDA. In addition, ROE will be used as an attainment hurdle, which must be reached before bonuses are paid in full. For 1996, the Board has established a 7% ROE hurdle. If this ROE target is not achieved for the year, bonuses, to the extent earned, will be reduced by 50%.
In addition, up to 25% of an individual's award may, at the discretion of the individual's immediate manager, be based on individual objectives established at the beginning of the calendar year.
IV. TARGET AWARDS
A target award percentage is established for each position eligible to participate in the Plan. Target awards (TA's) may range from 10% to 75%, depending on position, of the participants' January 1 base pay (or pay at the time of becoming a participant, if later), depending on position.
Generally, the participating employee receives the TA when performance under
the plan meets, but does not exceed, the pre-established performance
objectives.
A participant may have Company Objectives, Division Objectives, Business Unit Objectives and/or Individual Objectives, each of which is assigned by the immediate manager and provided a weighting in determining the TA.
Excluding individual objectives, which are optional, the following weightings will apply:
- ------------------------------------------------------------------------------------------------
PERFORMANCE WEIGHTING
- ------------------------------------------------------------------------------------------------
CORPORATE OBJECTIVE DIVISION OBJECTIVE BUSINESS UNIT
- ------------------------------------------------------------------------------------------------
Corporate Participants 100% - -
- ------------------------------------------------------------------------------------------------
Divisions:
- ------------------------------------------------------------------------------------------------
Division Presidents 20% 80% -
- ------------------------------------------------------------------------------------------------
All Other Participants Weighting To be Determined by Immediate Manager
- ------------------------------------------------------------------------------------------------
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VI. PERFORMANCE MEASUREMENT
Minimum This is the lowest level of performance at which an award will be generated for this
particular objective of the plan. The award paid for performance at the minimum level
is 50% of TA. There will be no payment for performance below the minimum level.
Target Performance This is the expected level of performance based on the current year's financial plan.
Maximum This is the performance level for which the maximum award under the plan will be paid.
The maximum award under the plan is limited to 150% of TA.
----------------------------------------------------------
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VII. AWARD CALCULATION
Attainment on the financial objectives of the Plan is measured based on actual results versus Plan targets, with performance above or below Plan targets prorated up/down to the maximum/minimum levels established for each financial objective.
For example, assume :
Cooper Cameron EBITDA Objective $120 million
Minimum Level $102 million
Maximum Level $138 million
At EBITDA performance of $130 million, attainment = 127.7% (Prorated between
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At EBITDA performance of $108 million, attainment = 66.7% (Prorated between $120 million objective and $102 million minimum objective).
A. Corporate Participant:
o If EBITDA Attainment = 110% and ROE hurdle is achieved, Participant receives 110% of TA o If EBITDA Attainment = 110% and ROE hurdle is not achieved, Participant receives 55% of TA. o If EBITDA Attainment = 85% and ROE hurdle is achieved, Participant receives 85% of TA. o If EBITDA Attainment = 85% and ROE hurdle is not achieved, Participant receives 42.5% of TA. o If EBITDA Attainment = 180% and ROE hurdle is achieved, Participant receives 150% of TA |
B. Division Business Unit Participant without Individual Objectives:
Assume ROE hurdle is achieved
- -------------------------------------------------------------------------------------------------
EBITDA ATTAINMENT WEIGHTING PERFORMANCE LEVEL
- -------------------------------------------------------------------------------------------------
Corporate 100% 20% 20%
- -------------------------------------------------------------------------------------------------
Division 110% 30% 33%
- -------------------------------------------------------------------------------------------------
Business Unit 85% 50% 42.5%
- -------------------------------------------------------------------------------------------------
TOTAL 95.5%
- -------------------------------------------------------------------------------------------------
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Participant receives 95.5% of TA.
C. Division Business Unit Participant with Individual Objectives:
Assume ROE hurdle is achieved
- ------------------------------------------------------------------------------------------------
EBITDA ATTAINMENT WEIGHTING PERFORMANCE LEVEL
- ------------------------------------------------------------------------------------------------
Corporate 100% 20% 20%
- ------------------------------------------------------------------------------------------------
Division 110% 30% 33%
- ------------------------------------------------------------------------------------------------
Business 85% 25% 21.25%
- ------------------------------------------------------------------------------------------------
INDIVIDUAL OBJECTIVE ATTAINMENT
- ------------------------------------------------------------------------------------------------
Working Capital 40% 15% 6%
- ------------------------------------------------------------------------------------------------
Bookings 100% 10% 10%
- ------------------------------------------------------------------------------------------------
TOTAL 90.25%
- ------------------------------------------------------------------------------------------------
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For example, if the participant's salary is $80,000, target award is 20% ($16,000) = payout of $16,000 x 90.25% = $14,440.
VIII. DISCRETIONARY AWARDS
There may be unusual situations where a manager feels that the reward generated under this plan do not properly reflect the contribution of the participant. In this situation, the participant's immediate manager has the right to recommend an adjustment either up or down, of up to 25% of the participant's TA.
A participant's immediate manager has the discretion to set individual objectives as part of the employee's performance criteria under the incentive plan. The use of individual objectives is subject to the following requirements:
The manager must specify the weighting of the individual objectives in the overall TA, not to exceed 25% of the total award.
Individual objectives must be specifically identified at the beginning of the plan year and must be quantifiable in terms of both the targeted achievement and the time frame in which the objective is to be completed.
The portion of the award payment generated from individual objectives may be adjusted up or down based on the manager's assessment of the individual's results on the established objectives.
X. ALTERNATIVE CALCULATIONS
There may be circumstances under which the financial performance of the Company does not generate an award under this program. The nature and scope of the Company's operations are such that at times unanticipated economic and market conditions may render pre-established financial objectives unattainable in any given plan year. If, in the opinion of the Committee, such circumstances should arise, an alternative bonus calculation may be performed. Such calculation will rank the Company's EBITDA against a pre-established peer group of companies. If the Company's performance is at or above 60th percentile, then a bonus payment equal to 50% of target award may be paid.
XI. MODIFICATIONS
If, during a Plan Year, there has occurred or should occur, in the opinion of the Company, a significant beneficial or adverse change in economic conditions, the indicators of growth or recession in the Company's business segments, the nature of the operations of the Company, or applicable laws, regulations or accounting practices, or other matters which were not anticipated by the Company when it approved Company and Division Objectives for the Plan Year and which, in the Company's judgment, had or have or are expected to have a substantial positive or negative effect on the performance of the Company as a whole, the Compensation Committee, subject to ratification by the Board, may modify or revise the Performance Objectives for the Plan Year in such manner as it may deem appropriate in its sole judgment. By way of illustration, and not limitation, such significant changes might result from sales of assets, or mergers, acquisitions, divestitures, or spin-offs.
XII. PAYMENT
Any awards generated under the 1996 MICP must be approved by the Compensation Committee of the Board of Directors. It is anticipated that any MICP awards generated in 1996 will be paid during February 1997.
Employees terminating prior to the end of the fiscal year are not eligible for payment of any award under this plan unless termination is due to retirement or economic reduction in force. In such cases, any bonus payments will be prorated to the date of termination and determined on the basis of bonuses actually paid to similarly situated employees.
I. PURPOSE
The Cooper Cameron Management Incentive Compensation Plan (the "Plan"), has been designed to motivate and reward key management employees whose efforts impact the performance of Cooper Cameron Corporation (the "Company") and its subsidiaries through the achievement of pre-established financial and individual objectives.
Performance under the Plan is measured on the fiscal (calendar) year and payments under the Plan are made annually.
II. ELIGIBILITY
Officers and key management employees may be eligible to participate in the plan, upon the recommendation of their manager and approval by the Chief Executive Officer of the Company. An employee who is eligible to participate in any other cash incentive plan of the company is not eligible to participate in this Plan.
III. AWARD CRITERIA
The Compensation Committee of the Board of Directors is responsible for approving the Company performance objectives that are used to determine awards paid for Company objectives under this plan. Performance objectives for operating units below the corporate level will be established by the appropriate manager subject to overall approval of the Chief Executive Officer. For 1997, performance under the Plan will be determined based on:
Earnings Before Interest, Taxes and Depreciation (EBITDA) Return on Equity (ROE)
The basic measure of financial performance under this Plan will be EBITDA. In addition, ROE will be used as an attainment hurdle, which must be reached before bonuses are paid in full. For 1997, the Board has established a 7% ROE hurdle. If this ROE target is not achieved for the year, bonuses, to the extent earned, will be reduced by 50%.
In addition, up to 25% of an individual's award may, at the discretion of the individual's immediate manager, be based on individual objectives established at the beginning of the calendar year.
IV. TARGET AWARDS
A target award percentage is established for each position eligible to participate in the Plan. Target awards (TA's) may range from 10% to 75%, depending on position, of each participant's January 1 base pay (or pay at the time of becoming a participant, if later).
Generally, the participating employee receives the Target Award when performance under the plan meets, but does not exceed, the pre-established performance objectives.
A participant may have Company Objectives, Division Objectives, Operating Unit Objectives and/or Individual Objectives, each of which is assigned by the immediate manager and provided a weighting in determining the Target Award.
VI. PERFORMANCE MEASUREMENT
Minimum This is the lowest level of performance at which an award will be generated for this
particular objective of the plan. The award paid for performance at the minimum level
is 50% of Target Award. There will be no payment for performance below the minimum
level.
Target Performance This is the expected level of performance based on the current year's financial plan.
Maximum This is the performance level for which the maximum award under the plan will be paid.
The maximum award under the plan is limited to 200% of the Target Award.
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VII. AWARD CALCULATION
Attainment on the financial objectives of the Plan is measured based on actual results versus Plan targets, with performance above or below Plan targets prorated up/down to the maximum/minimum levels established for each financial objective.
For example, assume the following hypothetical objectives:
Minimum Level $180 million Company EBITDA Target $200 million Maximum Level $230 million |
At EBITDA performance of $220 million, attainment = 166.6% (Prorated between $200 million objective and $230 million maximum).
At EBITDA performance of $185 million, attainment = 62.5% (Prorated between $200 million objective and $180 million minimum objective).
Following are examples of how payouts are determined under the Plan once attainment has been calculated:
A. Corporate Participant:
- ------------------------------------------------------------------------------------------------
EBITDA ATTAINMENT ROE HURDLE ACHIEVED PARTICIPANT AWARD
- ------------------------------------------------------------------------------------------------
110% YES 110.0%
- ------------------------------------------------------------------------------------------------
110% NO 55.0%
- ------------------------------------------------------------------------------------------------
85% YES 85.0%
- ------------------------------------------------------------------------------------------------
85% NO 42.5%
- ------------------------------------------------------------------------------------------------
180% YES 180.0%
- ------------------------------------------------------------------------------------------------
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Assume ROE hurdle is achieved
- ----------------------------------------------------------------------------------------------------
ATTAINMENT WEIGHT PERFORMANCE LEVEL
- ----------------------------------------------------------------------------------------------------
Division EBITDA 110% 30% 33.0%
- ----------------------------------------------------------------------------------------------------
Operating Unit EBITDA 85% 50% 42.5%
- ----------------------------------------------------------------------------------------------------
Individual Objective 100% 20% 20.0%
- ----------------------------------------------------------------------------------------------------
PARTICIPANT AWARD 95.5%
- ----------------------------------------------------------------------------------------------------
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C. Division Operating Unit Participant with Individual Objectives:
Assume ROE hurdle is achieved
- ----------------------------------------------------------------------------------------------------
EBITDA ATTAINMENT WEIGHT PERFORMANCE LEVEL
- ----------------------------------------------------------------------------------------------------
Division 110% 40% 44.0%
- ----------------------------------------------------------------------------------------------------
Operating Unit 85% 40% 34.0%
- ----------------------------------------------------------------------------------------------------
INDIVIDUAL OBJECTIVE ATTAINMENT
- ----------------------------------------------------------------------------------------------------
Working Capital 40% 10% 4.0%
- ----------------------------------------------------------------------------------------------------
Bookings 100% 10% 10.0%
- ----------------------------------------------------------------------------------------------------
PARTICIPANT AWARD 92.0%
- ----------------------------------------------------------------------------------------------------
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For example, if the participant's salary is $80,000, target award is 20% ($16,000) = payout of $16,000 x 92% = $14,720.
VIII. DISCRETIONARY AWARDS
There may be unusual situations where a manager feels that the reward generated under this plan does not properly reflect the contribution of the participant. In this situation, the participant's immediate manager has the right to recommend an adjustment, either up or down, of up to 25% of the participant's Target Award.
IX. INDIVIDUAL OBJECTIVES
A participant's immediate manager has the discretion to set individual objectives as part of the employee's performance criteria under the incentive plan. The use of individual objectives is subject to the following requirements:
The manager must specify the weighting of the individual objectives in the overall Target Award, not to exceed 25% of the total award
Individual objectives must be specifically identified at the beginning of the plan year and must be quantifiable in terms of both the targeted achievement and the time frame in which the objective is to be completed.
The portion of the award payment generated from individual objectives may be adjusted up or down based on the manager's assessment of the individual's results on the established objectives.
There may be circumstances under which the financial performance of the Company does not generate an award under this program. The nature and scope of the Company's operations are such that at times unanticipated economic and market conditions may render pre-established financial objectives unattainable in any given plan year. If, in the opinion of the Committee, such circumstances should arise, an alternative bonus calculation may be performed. Such calculation will rank the Company's EBITDA against a pre-established peer group of companies. If the Company's performance is at or above 60th percentile, then a bonus payment equal to 50% of target award may be paid.
XI. MODIFICATIONS
If, during a Plan Year, there has occurred or should occur, in the opinion of the Company, a significant beneficial or adverse change in economic conditions, the indicators of growth or recession in the Company's business segments, the nature of the operations of the Company, or applicable laws, regulations or accounting practices, or other matters which were not anticipated by the Company when it approved Company and Division Objectives for the Plan Year and which, in the Company's judgment, had, have, or are expected to have a substantial positive or negative effect on the performance of the Company as a whole, the Compensation Committee, subject to ratification by the Board, may modify or revise the Performance Objectives for the Plan Year in such manner as it may deem appropriate in its sole judgment. By way of illustration, and not limitation, such significant changes might result from sales of assets, or mergers, acquisitions, divestitures, or spin-offs.
XII. PAYMENT
Any awards generated under the 1997 MICP must be approved by the Compensation Committee of the Board of Directors. It is anticipated that any MICP awards generated in 1997 will be paid during February 1998.
Employees terminating prior to the end of the fiscal year are not eligible for payment of any award under this plan unless termination is due to retirement or economic reduction in force. In such cases, any bonus payments will be prorated to the date of termination and determined on the basis of bonuses actually paid to similarly situated employees.
As part of the every day existence of publicly-held corporations, such corporations are subject to hostile takeover attempts and friendly mergers which create uncertainty in the employment prospects of key individuals. In order to provide some measure of assurance as to protection in the event of a change in managerial control of the Company, this policy is adopted to set forth certain benefits available to certain of these key employees.
This policy applies to the designated employees of Cooper Cameron Corporation, including its operating divisions.
In the event of a Change in Control (as hereinafter defined), designated individual executive employees will receive the benefits described below.
Eligible employees will be selected by the Chief Executive Officer and may include officers of the Company who are not party to an employment contract, division presidents, division vice presidents and director level employees at the corporate offices. Each such eligible employee shall be notified in writing of such employee's right to receive the benefits set forth in this policy by the Chief Executive Officer of the Company. Any employee not receiving this policy together with an acknowledgment specifically designating their inclusion within the terms of this policy shall not be subject to the provisions hereof. The Company reserves the right to modify, amend or cancel the terms hereof or such acknowledgment at any time prior to a Change in Control. After a Change in Control, the benefits available pursuant to this Policy as set forth in writing shall be irrevocably available to the employee.
Each designated employee shall receive a salary continuation benefit as set forth by the Chief Executive Officer in writing in addition to a salary continuation benefit set forth in the Executive Severance Program ("ESP"). Such benefit, together with the salary continuation benefit under the ESP, shall be paid to the employee in a lump sum payment (net of applicable income tax withholdings and social security taxes) within 10 days of a Triggering Event. Welfare benefits and any accrued but unpaid bonus shall remain the obligation of the Company and be provided or paid to the employee pursuant to the terms of the ESP. The welfare benefits shall continue for the period set forth in the ESP plus any term provided pursuant to this policy.
To the extent that the acceleration of vesting or any payment, distribution or issuance made to you pursuant to this Policy following any Triggering Event or Change of Control is subject to federal income, excise or other tax at a rate above the rate ordinarily applicable to like payments paid in the ordinary course of business ("Penalty Tax"), whether as a result of the provisions of Section 280G(b)(1) and 4999(a) of the Internal Revenue code of 1985, as amended, any similar or analogous provisions of any statute adopted subsequent to the date hereof, or otherwise, then the Company shall pay you an additional amount of cash (the "Additional Amount") such that the net amount received by you, after paying any applicable Penalty Tax and any federal or state income tax on such Additional Amount, shall be equal to the amount that you would have received if such Penalty Tax were not applicable.
The "Triggering Event" shall be the occurrence of a Change in Control and the earlier of either (a) the involuntary termination by the Company of the employment of the employee without cause, or (b) shall occur on the ninety-first day of employment at the sole discretion of the employee by notifying the Company in writing of the employee's decision to terminate the employment.
"Change in Control" means the earliest date at which:
(i) Any Person is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing (a) 20% or more of the combined voting power of the Company's outstanding Voting Securities, other than through the purchase of Voting Securities directly from the Company through a private placement or pursuant to open-market purchases approved in advance by a majority of the incumbent members of the Board of Directors not elected for the first time at the most recent election of board members, or (b) representing 50% or more of the combined voting power of the Company's outstanding Voting Securities; or
(ii) individuals who constitute the Board on the date hereof (the "Incumbent Board") cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least two-thirds of the directors comprising the Incumbent Board shall from and after such election be deemed to be a member of the Incumbent Board; or
(iii) the Company is merged or consolidated with another corporation or entity and as a result of such merger or consolidation less than 80% of the outstanding Voting Securities of the surviving or resulting corporation or entity shall then be owned by the former stockholders of the Company; or
(v) all or substantially all of the assets of the Company are sold or transferred to a Person as to which (A) the Incumbent Board does not have authority (whether by law or contract) to directly control the use or further disposition of such assets and (B) the financial results of the Company and such Person are not consolidated for financial reporting purposes.
Anything else in this definition to the contrary notwithstanding, no Change in Control shall be deemed to have occurred by virtue of any transaction which results in you, or a group of Persons which includes you, acquiring more than 20% of either the combined voting power of the Company's outstanding Voting Securities or the Voting Securities of any other corporation or entity which acquires all or substantially all of the assets of the Company, whether by way of merger, consolidation, sale of such assets or otherwise.
To establish a severance program for senior level executives of the company that recognizes the relatively more difficult employment transition that occurs upon the termination of employment of higher paid individuals.
This policy applies to designated employees of Cooper Cameron Corporation, including operating groups, divisions and plants.
Because senior level executive employees, to a greater extent than other salaried employees, serve at the pleasure of the company and are decidedly "at will" - meaning that either the company or the executive may terminate the employment relationship at any time for any reason without liability one to the other - a higher level of severance benefits is appropriate. The reference to "at will" employment status does not represent a change in company policy, but is referred to here only to avoid a misunderstanding.
The executive severance program is applicable to designated company
executives whose active full time employment is terminated by the company for
reasons other than cause. To assist senior executives in transitioning from one
employment situation to another, the following severance compensation will be
awarded in the form of salary continuation upon the condition of signing a full
and complete severance waiver and release in a form acceptable to the company.
(An example of such a waiver and release is attached as Exhibit A.)
Position Salary Continuation -------- ------------------- Category I 15 months Category II 12 months Category III 9 months |
The salary continuation period includes the continuation of all applicable benefits and benefits programs according to the respective program's terms and conditions (including employee contributions where required). No additional payments will be made for holidays or vacations earned or occurring during the salary continuation period. Bonus payments will be prorated to the date of original severance and determined on the basis of bonuses actually paid to similarly situated employees. No further bonus entitlements will be earned during the salary continuation period.
In addition to salary and benefit continuations as provided above, outplacement services will be made available as appropriate.
If the division in which the executive is employed is sold, merged or consolidated with another entity or business, any executive who continues employment or is offered continued employment with a new owner of a former Cooper Cameron operation in the same or reasonably comparable position, will not be considered terminated within the meaning of this policy. Likewise, if the Company is merged or consolidated with another entity or business, any executive who continues employment or is offered continued employment in the same or reasonably comparable position, will not be considered terminated within the meaning of this policy except to the extent the Company's Change in Control Policy may supersede.
To the extent any participant under this policy is entitled to receive benefits for severance pursuant to statutory or regulatory requirements or an employment contract or arrangement, the benefits hereunder are not intended to duplicate such prescribed benefits. The benefits hereunder shall be reduced automatically to avoid such duplication, if any. The determination of the reduction shall be in the sole determination of the Pension Administration Committee which decision will be final and binding on both the Company and the participant.
The general administration of the executive severance program is the responsibility of the Pension Administration Committee, which has final and binding authority to administer the plan in accordance with its stated terms. The corporate senior vice president, general counsel and secretary has overall responsibility for the day-to-day administration of this policy. It is his/her responsibility to administer and effectuate the terms and conditions of this policy. Exceptions to the policy may only be granted with the approval of the president of the company. The senior vice president, general counsel and secretary may delegate his/her responsibilities regarding this policy to any person or persons that he/she chooses, including division and plant personnel where appropriate.
$475,000,000
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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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 |
Schedule 2.9 - Payment Offices Schedule 5.9 - Subsidiaries Schedule 5.10 - ERISA Schedule 5.15 - Environmental Schedule 6.15 - Liens |
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.
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:
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
"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:
- ------------------------------------------------------------------------------------------
Total Debt to Total
Capitalization Ratio Applicable Margin
- ------------------------------------------------------------------------------------------
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
- ------------------------------------------------------------------------------------------
12.5 Basis
40% 45% 25 Basis Points Points 6 Basis Points
- ------------------------------------------------------------------------------------------
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:
- ----------------------------------------------------------------------------------
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
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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.
"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
"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
"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.
"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
"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.
"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.
"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.
"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.
"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.
"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
"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.
"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.
"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.
"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
"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.
"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.
"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.
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
(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.
(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.
(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
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
(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
(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
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.
(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);
(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.
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
(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.
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
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
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
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
(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;
(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
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
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.
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
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
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.
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.
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.
(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.
(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.
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
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.
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
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
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.
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.
(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
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
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
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
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;
(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.
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
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.
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;
(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
(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.
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
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
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
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.
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
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
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
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.
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
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
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
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).
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]
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
|
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
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).
_____________ ___, ____
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