<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
--------------------------------------------------
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 1-12374
----------
ALUMAX INC. [LOGO]
(Exact name of registrant as specified in its charter)
Delaware 13-2762395
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3424 Peachtree Road, N.E., Suite 2100, Atlanta, Georgia 30326
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (404) 846-4600
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Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
Number of shares of common stock of registrant outstanding at October 31, 1997:
54,805,449
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<PAGE> 2
Part I. Financial Information
Item 1. Financial Statements
ALUMAX INC.
CONDENSED STATEMENTS OF EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-------------------- ---------------------
1997 1996 1997 1996
--------- --------- --------- ---------
(In Millions, Except Per Share Amounts)
<S> <C> <C> <C> <C>
NET SALES ........................................... $ 717.1 $ 809.1 $2,149.8 $ 2,463.1
--------- --------- --------- ---------
Cost and expenses:
Cost of goods sold ............................. 544.4 657.7 1,649.9 1,969.7
Selling and general ............................ 65.7 70.3 189.0 203.9
Depreciation and amortization................... 40.4 36.7 115.1 105.7
--------- --------- --------- ---------
650.5 764.7 1,954.0 2,279.3
--------- --------- --------- ---------
EARNINGS FROM OPERATIONS ............................ 66.6 44.4 195.8 183.8
Gain on sales of assets ............................. -- 71.7 -- 242.9
Other income (expense), net ......................... 1.1 (1.9) 3.5 13.0
Interest expense, net ............................... (13.5) (15.8) (40.8) (49.9)
--------- --------- --------- ---------
EARNINGS BEFORE INCOME TAXES ........................ 54.2 98.4 158.5 389.8
Income tax provision ................................ (130.2) (46.0) (172.0) (158.9)
--------- --------- --------- ---------
NET EARNINGS (LOSS) ................................. (76.0) 52.4 (13.5) 230.9
Preferred dividends ................................. -- (2.3) -- (7.0)
--------- --------- --------- ---------
EARNINGS (LOSS) APPLICABLE TO COMMON SHARES ......... $ (76.0) $ 50.1 $ (13.5) $ 223.9
========= ========= ========= =========
Primary earnings (loss) per common share ............ $ (1.38) $ 1.10 $ (0.25) $ 4.91
========= ========= ========= =========
Fully diluted earnings per common share ............. $ .95 $ 4.18
========= =========
Weighted average primary shares outstanding ......... 55.1 45.6 55.0 45.6
========= ========= ========= =========
Weighted average fully diluted shares outstanding.... 55.2 55.2
========= =========
</TABLE>
The accompanying notes are an integral part of these financial statements.
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<PAGE> 3
ALUMAX INC.
CONDENSED STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
------------- ------------
(Millions of Dollars,
Except per Share Amounts)
<S> <C> <C>
ASSETS
Current Assets:
Cash and equivalents .......................................... $ 59.9 $ 34.6
Accounts receivable, less allowance for doubtful accounts
(1997-$14.4; 1996-$16.6) ................................... 460.7 439.1
Inventories ................................................... 555.4 519.9
Other current assets .......................................... 86.3 92.2
-------- --------
Total current assets ....................................... 1,162.3 1,085.8
-------- --------
Noncurrent Assets:
Property, plant and equipment at cost, less accumulated
depreciation and amortization (1997-$1,115.7; 1996-$1,036.8) 2,020.1 2,027.4
Other assets .................................................. 265.0 185.5
-------- --------
Total noncurrent assets .................................... 2,285.1 2,212.9
-------- --------
TOTAL ASSETS ....................................................... $3,447.4 $3,298.7
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable .............................................. $ 135.1 $ 162.6
Accrued liabilities ........................................... 210.1 224.2
Current maturities of long-term debt .......................... 46.4 38.4
-------- --------
Total current liabilities .................................. 391.6 425.2
-------- --------
Noncurrent Liabilities:
Long-term debt ................................................ 626.5 672.0
Other noncurrent liabilities .................................. 798.7 560.7
-------- --------
Total noncurrent liabilities ............................... 1,425.2 1,232.7
-------- --------
Commitments and Contingencies
Stockholders' Equity:
Common stock of $.01 par value ................................ .6 .5
Paid-in capital ............................................... 933.3 920.2
Retained earnings ............................................. 710.8 724.3
Cumulative foreign currency translation adjustment ............ (14.1) (4.2)
-------- --------
Total stockholders' equity ................................. 1,630.6 1,640.8
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY ......................... $3,447.4 $3,298.7
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
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<PAGE> 4
ALUMAX INC.
CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
For the Nine Months Ended
September 30,
-------------------------
1997 1996
---------- ----------
(Millions of Dollars)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings (loss) ....................................... $(13.5) $230.9
Reconciliation of net earnings (loss) to net cash provided
by operating activities:
Depreciation and amortization .......................... 115.1 105.7
Provision for doubtful accounts ........................ 1.0 4.9
Gain on sales of assets ................................ (2.1) (242.9)
Provision for tax assessment............................ 108.6 --
Deferred income taxes .................................. (26.9) (1.1)
Other noncash items .................................... 13.2 6.2
Changes in working capital, net of effects
of acquisition/disposition .......................... (93.8) 37.5
Net change in other noncurrent assets and liabilities... 65.0 14.2
------ ------
Net cash provided by operating activities ........... 166.6 155.4
------ ------
INVESTING ACTIVITIES:
Dispositions, net of cash sold ............................ 3.6 497.0
Acquisition, net of cash acquired ......................... -- (436.5)
Capital expenditures ...................................... (107.4) (171.1)
------ ------
Net cash used in investing activities .................. (103.8) (110.6)
------ ------
FINANCING ACTIVITIES:
Repayments of long-term and short-term debt ............... (37.5) (550.6)
Proceeds from long-term and short-term debt ............... -- 375.0
Dividends paid on preferred stock ......................... -- (7.0)
------ ------
Net cash used in financing activities ............... (37.5) (182.6)
------ ------
Net increase (decrease) in cash and equivalents ................ 25.3 (137.8)
Cash and equivalents at beginning of year ...................... 34.6 205.9
------ ------
Cash and equivalents at end of period .......................... $ 59.9 $ 68.1
====== ======
Supplemental Cash Flow Information:
Income tax payments ....................................... $ 27.9 $ 57.9
Interest paid, net of amounts capitalized ................. $ 42.5 $ 53.1
</TABLE>
The accompanying notes are an integral part of these financial statements.
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ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(MILLIONS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
NOTE 1. PRESENTATION
These unaudited interim condensed financial statements of Alumax Inc. ("Alumax"
or the "Company") should be read in conjunction with the audited financial
statements for the year ended December 31, 1996. In Management's opinion, all
adjustments necessary for a fair presentation are reflected in the interim
periods presented. Certain reclassifications have been made to the prior year's
financial statements to conform with the 1997 presentation.
NOTE 2. FINANCIAL INSTRUMENTS ACCOUNTING POLICY
The Company may, from time to time, utilize certain financial instruments in
connection with risk management. The fair value of financial instruments is
determined by reference to market value quotes, where available, and other
valuation techniques, as appropriate. Amounts to be paid or received on interest
rate swaps and caps are included in interest expense on an accrual basis, as
they effectively limit the interest rate exposure of the Company's debt
commitments.
Certain of the Company's foreign operating expenditures are denominated in
currencies other than the operations' functional currencies, which expose the
Company to exchange rate risks. In order to mitigate its exposure to exchange
rate risk where conditions exist, the Company may utilize forward foreign
currency contracts. Amounts paid or received on settlement of forward foreign
currency contracts are deferred and included in the measurement of the related
foreign denominated transactions.
The Company's results of operations and financial condition depend to a large
degree on primary aluminum prices. In order to reduce this exposure, the Company
may enter into future, forward and option contracts. Amounts paid or received on
settlement of future, forward and option contracts, including any cost to
purchase the contracts, are deferred and recognized as a component of the
related transaction and included in costs and expenses, except for amounts paid
or received on settlement of aluminum contracts by the primary reduction
facilities, which are included in net sales.
All of the Company's financial instruments have been designated as hedges and
are closely monitored to ensure that correlation between changes in the fair
value of financial instruments and changes in the fair value associated with the
underlying hedged items exists to such a degree that they substantially offset.
In the event a high degree of correlation is not maintained, or anticipated
transactions do not occur, deferred gains or losses on the affected financial
instruments are recognized in earnings immediately. At September 30, 1997 all of
the Company's financial instruments qualified for deferral accounting treatment.
NOTE 3. STRATEGIC TRANSACTIONS
On January 26, 1996, the Company sold a 23 percent undivided interest in its Mt.
Holly primary aluminum reduction facility for $89.3. The Company recorded a gain
of $78.4 ($48.6 after tax) in connection with this transaction. This transaction
reduced the Company's ownership in the Mt. Holly facility to 50.33 percent.
On January 31, 1996, the Company purchased all of the common shares of privately
held Cressona Aluminum Company ("Cressona") for a cash cost, including expenses,
of $436.5, net of $3.1 of cash acquired. In conjunction with the acquisition,
liabilities of $87.4 were acquired. Cressona is a leading manufacturer of
extruded aluminum products.
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<PAGE> 6
ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (CONTINUED)
The acquisition was accounted for as a purchase and the results of operations of
Cressona have been included in the consolidated financial statements since
January 31, 1996. The acquisition was financed with cash on hand and $375.0 of
borrowings obtained under available credit facilities. All of these borrowings
were repaid in 1996.
In June 1996, the Company sold its investment in mining interests for $160.0 in
cash. The Company recorded an after-tax gain of $55.1, net of a $37.7 tax
provision, in the second quarter of 1996.
On September 25, 1996, the Company sold certain Fabricated Products businesses
in Western Europe and in the United States for $246.6 in cash, net of cash sold
of $5.4. The Company recorded an after-tax gain of $36.7, net of a $35.0 tax
provision, in the third quarter of 1996 in connection with the sale.
Pro Forma Information
The following summary presents Alumax's unaudited pro forma consolidated net
sales, net earnings and primary earnings per common share for the three and nine
months ended September 30, 1996, as if the acquisition of Cressona and the sale
of the Fabricated Products businesses each occurred on January 1, 1996. The pro
forma adjustments for the three and nine months ended September 30, 1996,
include the addition of Cressona's operating results for the month of January
1996. Since the acquisition occurred on January 31, 1996, the Company's actual
results include Cressona from February 1, 1996 through September 30, 1996.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, 1996 September 30, 1996
------------------ ------------------
<S> <C> <C>
Net sales............................... $686.2 $2,134.1
Net earnings............................ $ 46.2 $ 220.2
Primary earnings per common share....... $ .96 $ 4.67
</TABLE>
The pro forma results are based upon certain assumptions and estimates, which
the Company believes are reasonable. The pro forma results do not purport to be
indicative of results that actually would have been obtained had these
transactions occurred on January 1, 1996, nor are they intended to be a
projection of future results.
NOTE 4. INVENTORIES
Components of inventories at September 30, 1997 and December 31, 1996 are:
<TABLE>
<CAPTION>
1997 1996
------ ------
<S> <C> <C>
Raw materials ........................ $299.5 $323.7
Work in process....................... 137.9 87.3
Finished products..................... 118.0 108.9
------ ------
Total.............................. $555.4 $519.9
====== ======
</TABLE>
Approximately 81 percent and 78 percent of inventory at September 30, 1997 and
December 31, 1996, respectively, have been determined on the LIFO cost basis.
The excess of replacement cost over the LIFO basis of such inventory is
approximately $94.7 and $74.0 at September 30, 1997 and December 31, 1996,
respectively.
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<PAGE> 7
ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (CONTINUED)
NOTE 5. DEBT
On May 30, 1997, the Company amended its existing $400 revolving credit
facility, increasing the total amount available under the facility to $500 and
extending the term of the facility to May 2002. The terms and covenants that
govern the facility were not substantially changed with the amendment.
In October 1997, the Company amended its then existing $500 revolving credit
facility, increasing the total amount available under the facility to $800 and
extending the term of the facility to October 2002. The terms and covenants
that govern the facility were not substantially changed with the amendment. At
September 30, 1997, the entire amount of the facility was available to the
Company.
On October 27, 1997, the Company borrowed $355 under the revolving credit
facility to pay the amounts owed to the Internal Revenue Service (the "IRS")
based on the United States Tax Court ruling. See also Note 6 - Income Tax
Provision.
NOTE 6. INCOME TAX PROVISION
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ --------------------
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Federal........................... $125.9 $ 36.3 $160.4 $111.6
Foreign........................... 2.1 7.4 5.1 35.0
State............................. 2.2 2.3 6.5 12.3
------ ------ ------ ------
Total........................... $130.2 $ 46.0 $172.0 $158.9
====== ====== ====== ======
</TABLE>
The effective tax rates for these periods differ from statutory rates because
of provisions for state and foreign taxes and a charge related to an alleged
income tax deficiency.
The IRS asserted that Alumax and certain of its subsidiaries were improperly
included in the 1984, 1985 and 1986 consolidated income tax returns of AMAX
Inc. and on that basis has assessed a federal income tax deficiency against
Alumax of $129. In response to the IRS' notice of deficiency, the Company filed
a petition in the United States Tax Court (the "Court") seeking a
redetermination in respect of the purported deficiency. The parties waived
their rights to a trial and the matter was submitted to the Court for decision
based upon the pleadings, stipulations, memoranda and other documents submitted
to the Court by the parties. On September 30, 1997, the Court entered a
decision in favor of the IRS opining that AMAX Inc. did not have the 80 percent
control necessary to consolidate. As a result of the ruling, the Company
recorded a charge of $108.6 in the third quarter of 1997. The expected
deficiency and accrued interest was recorded as a noncurrent liability in the
Company's September 30, 1997 financial statements. On October 27, 1997, the
Company paid an aggregate of $411 to the IRS, representing the expected
deficiency and accrued interest. The payment was funded from cash on hand and
borrowings of $355 under the Company's revolving credit facility. The Company
intends to appeal the decision of the Court to the United States Court of
Appeals.
The three and nine months ended September 30, 1996 include a provision for prior
years and the effect of the repatriation of foreign earnings associated with the
sale of certain Fabricated Products businesses in Western Europe which
contribute to an effective tax rate higher than the statutory rate. In addition,
the nine months ended September 30, 1996 includes $6.2 of foreign tax credits
which substantially offset the federal tax related to the first quarter 1996
dividend from investments in mining operations.
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<PAGE> 8
ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7. OTHER INCOME
The nine months ended September 30, 1996, includes $18.6 of dividend income
received from investments in mining operations. These investments were sold
during the second quarter of 1996.
NOTE 8. EARNINGS (LOSS) PER COMMON SHARE
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings per Share" ("FAS 128" or the
"Statement"). This Statement simplifies the standards for computing earnings per
share currently required by APB Opinion No. 15 ("Opinion 15") and replaces the
presentation of primary earnings per share with a presentation of basic earnings
per share. Basic earnings per share is computed by dividing net income available
to common stockholders by the weighted-average number of common shares
outstanding during the period. This statement also requires presentation of
diluted earnings per share. Diluted earnings per share reflects the potential
dilution that could occur if options or warrants were exercised or convertible
securities were converted into common stock. Diluted earnings per share is
computed similarly to fully-diluted earnings per share under Opinion 15. The
following pro forma schedule illustrates the earnings per share the Company
would have reported under the provisions of FAS 128 for the three and nine
months ended September 30, 1997 and 1996:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -----------------
1997 1996 1997 1996
------ ----- ------ ------
<S> <C> <C> <C> <C>
Pro forma basic earnings (loss) per share....... $(1.38) $1.11 $(0.25) $ 4.99
Pro forma diluted earnings per share............ 0.95 4.18
Weighted average shares outstanding............. 55.1 44.9 55.0 44.9
Weighted average diluted shares outstanding..... 55.2 55.2
</TABLE>
As required by the Statement, the Company will adopt FAS 128 in the fourth
quarter of 1997.
NOTE 9. COMMITMENTS AND CONTINGENCIES
The Company has been named as a defendant or identified as a potentially
responsible party under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA") and similar state laws by governmental agencies and
private parties at 37 pending waste disposal sites which, in most instances,
were owned and operated by third parties. Management periodically evaluates such
matters and records or adjusts liability reserves for remediation and other
costs and potential damages when expenditures are considered probable and can be
reasonably estimated.
The Company's ultimate liability in connection with present and future
environmental claims will depend on many factors, including its volumetric share
of the waste at a given site, the remedial action required, the total cost of
remediation and the financial viability and participation of the other entities
which also sent waste to the site. Based upon current law and information known
to the Company concerning the size of the sites known to it, anticipated costs
of remediation, their years of operation, and the number of other potentially
responsible parties, Management believes that it has adequate reserves for the
Company's probable share of the estimated aggregate liability for the costs of
remedial actions and related costs and expenses and that such liability and
related costs and expenses should not have a material adverse effect on the
financial condition or results of operations of the Company. In addition, the
Company establishes reserves for remedial measures required from time to time at
its own facilities. Any expenditures for remediation programs it may be required
to undertake, either individually or in the aggregate, are not expected to have
a material adverse effect on the financial condition or results of operations of
the Company. The Company's environmental reserves totaled $29.7 at September 30,
1997 and $29.6 at December 31, 1996.
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<PAGE> 9
ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (CONTINUED)
Management does not anticipate that commitments, operating expenses or capital
expenditures for environmental compliance through and including the next fiscal
year will have a material adverse effect on the Company's financial condition or
results of operations. Based on historical trends toward stricter environmental
standards, however, it appears likely that the Company will incur additional
expenditures to remain in compliance with federal and state environmental laws.
For information regarding additional commitments and contingencies, see Note 9
to the Financial Statements in the Company's 1996 Annual Report on Form 10-K.
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<PAGE> 10
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations (Unaudited; millions of dollars, except per share and per
tonne and per pound amounts)
INTRODUCTION
Net losses totalled $76.0 and $13.5, or $(1.38) and $(0.25) per common share,
for the three and nine months ended September 30, 1997, respectively, compared
with net earnings of $52.4 and $230.9, or $1.10 and $4.91 per common share, in
the three and nine months ended September 30, 1996. The 1997 results include a
$108.6 provision associated with a United States Tax Court decision concerning
an alleged income tax deficiency and a $6.1 after-tax charge associated with
consolidation efforts at the Company's semi-solid forging business. The 1996
results included after-tax gains of $36.7 in the third quarter on the sale of
certain Fabricated Products businesses, $55.1 in the second quarter on the sale
of mining interests and $48.6 in the first quarter on the sale of a 23 percent
interest in the Mt. Holly primary aluminum reduction facility. After-tax
dividend income of $18.3 received from investments in mining operations was
also included in the first quarter 1996 results.
RESULTS OF OPERATIONS
Earnings from operations for the three and nine months ended September 30, 1997
totalled $66.6 and $195.8, respectively, compared with operating earnings of
$44.4 and $183.8 for the comparable 1996 periods.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-------------------- ----------------------
1997 1996 1997 1996
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
NET SALES
Primary aluminum products .................... $ 127.5 $ 140.2 $ 388.0 $ 501.8
Semi-fabricated products ..................... 456.0 418.0 1,369.3 1,237.1
Fabricated products .......................... 133.6 250.9 392.5 724.2
--------- --------- --------- ---------
$ 717.1 $ 809.1 $ 2,149.8 $ 2,463.1
========= ========= ========= =========
EARNINGS FROM OPERATIONS
Aluminum processing .......................... $ 80.5 $ 55.1 $ 233.9 $ 215.0
Corporate .................................... (13.9) (10.7) (38.1) (31.2)
--------- --------- --------- ---------
$ 66.6 $ 44.4 $ 195.8 $ 183.8
========= ========= ========= =========
PRODUCTION AND SHIPMENTS (THOUSANDS OF TONNES)
Sources of metal
Primary aluminum production .................. 177.6 162.9 530.3 506.1
Aluminum purchases ........................... 81.9 107.7 272.8 337.3
--------- --------- --------- ---------
259.5 270.6 803.1 843.4
========= ========= ========= =========
Metal shipments
Aluminum processing (including tolling)
Primary aluminum products .................... 69.5 78.7 212.1 285.9
Semi-fabricated products ..................... 156.5 147.6 472.8 429.0
Fabricated products(1) ....................... 22.6 35.6 75.8 104.6
--------- --------- --------- ---------
248.6 261.9 760.7 819.5
========= ========= ========= =========
DERIVED PRICES (DOLLARS/LB.)(2)
Primary aluminum products .................... $ 0.83 $ 0.81 $ 0.83 $ 0.80
Semi-fabricated products ..................... $ 1.32 $ 1.28 $ 1.31 $ 1.31
Fabricated products(1) ....................... $ 2.68 $ 3.20 $ 2.35 $ 3.14
</TABLE>
(1) Included in Fabricated products' metal shipments for the three and nine
months ended September 30, 1997, were billet shipments of 7.4 and 28.0
thousand tonnes, respectively, compared with 4.7 and 15.5 thousand
tonnes in the same 1996 periods.
(2) Derived prices were calculated by dividing net sales by pounds shipped
(one tonne equals 2,204.6 pounds).
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<PAGE> 11
NET SALES AND SHIPMENTS
The Company generated quarterly sales of $717.1 on aluminum shipments of 248,600
tonnes in the third quarter of 1997 compared with sales of $809.1 on aluminum
shipments of 261,900 tonnes in the third quarter of 1996. For the first nine
months of 1997, the Company generated sales of $2,149.8 on aluminum shipments of
760,700 tonnes compared with sales of $2,463.1 on aluminum shipments of 819,500
tonnes in the first nine months of 1996. The decreases in net sales were
principally a result of decreased shipments.
The London Metals Exchange (the "LME") cash price averaged $1,638 and $1,606 per
tonne during the three and nine months ended September 30, 1997, respectively,
compared with $1,440 and $1,530 per tonne in the comparable 1996 periods. The
Company's net sales are sensitive to changes in the world pricing of primary
aluminum. This price sensitivity impacts substantially all of the Company's
products to varying degrees, with less impact on the more specialized and
value-added products.
Primary products' net sales for the three and nine months ended September 30,
1997, decreased 9 percent and 23 percent, respectively. Substantially all of the
decreases were due to declines in external shipments, resulting from higher
internal consumption. Internal consumption of primary products grew by 24
percent in the first three quarters of 1997 compared with the first three
quarters of 1996. The increase in internal consumption was driven by the
integration of the Company's expanded extrusion operations. The January 31, 1996
acquisition of Cressona Aluminum Company ("Cressona") more than doubled the
capacity of the Company's extrusion operations. The Company's total primary
aluminum production in the first three quarters of 1997 increased approximately
5 percent over 1996.
Semi-fabricated products' net sales for the three and nine months ended
September 30, 1997, increased 9 percent and 11 percent, respectively, on
increased shipments. The increase in shipments was related primarily to the
January 1996 acquisition of Cressona and continued growth in the Company's
extrusions operations in the transportation and service center businesses.
Fabricated Products' net sales for the three and nine months ended September 30,
1997, decreased 47 percent and 46 percent, respectively, principally due to the
sale of certain fabricated products operations in Western Europe and in the
United States ("Fab Products"). Increased sales in the Company's European
secondary aluminum operation were more than offset by the effects of the
September 1996 sale of Fab Products, which had sales of $124.1 and $363.3 in the
three and nine months ended September 30, 1996.
COSTS AND EXPENSES
The Company's costs and expenses were $650.5 and $1,954.0 for the three and nine
months ended September 30, 1997, respectively, compared with costs and expenses
of $764.7 and $2,279.3 for the three and nine months ended September 30, 1996,
respectively. The decreases were largely attributable to lower volumes resulting
from the sale of Fab Products and decreases in external purchases of aluminum.
Cost of goods sold decreased 17 percent and 16 percent in the three and nine
months ended September 30, 1997, respectively. The decreases were the result of
the sale of Fab Products and lower external aluminum purchases from the
integration of the downstream operations partially offset by higher shipments
from the extrusion and mill businesses, as well as increased year-to-date
shipments from the Company's European secondary aluminum businesses.
In July 1997, the Company announced a consolidation and action plan related to
its semi-solid forging manufacturing operations. The year to date pretax cost of
this consolidation is $10.3, $6.1 after tax.
Selling and general expenses decreased by 7 percent in both the three and nine
months ended September 30, 1997, respectively, due primarily to the sale of Fab
Products offset partially by the growth in the Company's extrusion business and
increased international development activity. The third quarter and
year-to-date increase in Corporate selling and general expenses includes
non-recurring personnel costs and international development expenses.
Depreciation and amortization increased 10 percent and
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<PAGE> 12
9 percent in the three and nine month periods ended September 30, 1997,
respectively. These increases were commensurate with the Company's level of
capital spending.
OTHER ITEMS AFFECTING NET EARNINGS
Other Income (Expense), Net
Other income (expense), net for the three and nine months ended September 30,
1997, was $1.1 and $3.5, respectively, compared with $(1.9) and $13.0 for the
same periods in 1996. The nine months ended September 30, 1996 included $18.6 of
dividend income received from investments in mining operations. This investment
was sold during the second quarter of 1996.
Interest Expense, Net
Gross interest expense was $14.3 and $44.1 for the three and nine months ended
September 30, 1997, respectively, a decrease of $3.9 and $14.5 from the
comparable periods in 1996. These decreases were a result of lower average
borrowings. Interest income was $2.0 for the nine months ended September 30,
1997, compared with $3.0 for the same period in 1996. Capitalized interest was
$1.3 for the nine months ended September 30, 1997, compared with $5.7 for the
same period in 1996.
Income Taxes
The income tax provision for the three and nine months ended September 30, 1997,
was $130.2 and $172.0, respectively, compared with $46.0 and $158.9 for the same
1996 periods. The effective tax rates for these periods differ from statutory
rates because of provisions for state and foreign taxes and a charge related to
an alleged income tax deficiency.
The Internal Revenue Service (the "IRS") asserted that Alumax and certain of
its subsidiaries were improperly included in the 1984, 1985 and 1986
consolidated income tax returns of AMAX Inc. and on that basis has assessed a
federal income tax deficiency against Alumax of $129. In response to the IRS'
notice of deficiency, the Company filed a petition in the United States Tax
Court (the "Court") seeking a redetermination in respect of the purported
deficiency. The parties waived their rights to a trial and the matter was
submitted to the Court for decision based upon the pleadings, stipulations,
memoranda and other documents submitted to the Court by the parties. On
September 30, 1997, the Court entered a decision in favor of the IRS opining
that AMAX Inc. did not have the 80 percent control necessary to consolidate. As
a result of the ruling, the Company recorded a charge of $108.6 in the third
quarter of 1997. The expected deficiency and accrued interest was recorded as a
noncurrent liability in the Company's September 30, 1997 financial statements.
On October 27, 1997, the Company paid an aggregate of $411 to the IRS,
representing the expected deficiency and accrued interest. The payment was
funded from cash on hand and borrowings of $355 under the Company's revolving
credit facility. The Company intends to appeal the decision of the Court to the
United States Court of Appeals.
The three and nine months ended September 30, 1996 include a provision for
prior years and the effect of the repatriation of foreign earnings associated
with the sale of certain Fabricated Products businesses in Western Europe which
contributed to an effective tax rate higher than the statutory rate. In
addition, the nine months ended September 30, 1996 includes $6.2 of foreign tax
credits which substantially offset the federal tax related to the first quarter
1996 dividend from investments in mining operations.
STRATEGIC TRANSACTIONS
On January 26, 1996, the Company sold a 23 percent undivided interest in its Mt.
Holly primary aluminum reduction facility for $89.3. The Company recorded a gain
of $78.4 ($48.6 after tax) in connection with this transaction. This transaction
reduced the Company's ownership in the Mt. Holly facility to 50.33 percent.
On January 31, 1996, the Company purchased all of the common shares of privately
held Cressona for a cash cost, including expenses, of $436.5, net of $3.1 of
cash acquired. In conjunction with the acquisition, liabilities of $87.4 were
acquired. Cressona is a leading manufacturer of extruded aluminum products.
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<PAGE> 13
The acquisition was accounted for as a purchase and the results of operations of
Cressona have been included in the consolidated financial statements since
January 31, 1996. The acquisition was financed with cash on hand and $375 of
borrowings obtained under available credit facilities. All of these borrowings
were repaid in 1996.
In June 1996, the Company sold its investment in mining interests for $160 in
cash. The Company recorded an after-tax gain of $55.1, net of a $37.7 tax
provision, in the second quarter of 1996.
On September 25, 1996, the Company sold Fab Products for $246.6 in cash, net of
cash sold of $5.4. The Company recorded an after-tax gain of $36.7, net of a
$35.0 tax provision, in the third quarter of 1996 in connection with the sale.
Pro Forma Information
The following summary presents Alumax's unaudited pro forma consolidated net
sales, net earnings, and primary earnings per common share for the three and
nine months ended September 30, 1996, as if the acquisition of Cressona and the
sale of the Fabricated Products businesses each occurred on January 1, 1996. The
pro forma adjustments for the three and nine months ended September 30, 1996
include the addition of Cressona's operating results for the month of January
1996. Since the acquisition occurred on January 31, 1996, the Company's actual
results include Cressona from February 1, 1996 through September 30, 1996.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, 1996 September 30, 1996
------------------ ------------------
<S> <C> <C>
Net sales................................. $686.2 $2,134.1
Net earnings.............................. $ 46.2 $ 220.2
Primary earnings per common share......... $ .96 $ 4.67
</TABLE>
The pro forma results are based upon certain assumptions and estimates, which
the Company believes are reasonable. The pro forma results do not purport to be
indicative of results that actually would have been obtained had these
transactions occurred on January 1, 1996, nor are they intended to be a
projection of future results.
LIQUIDITY AND CAPITAL RESOURCES
Operating Activities
Operations provided $166.6 and $155.4 of cash during the first nine months of
1997 and 1996, respectively. Increased cash flows were directly related to the
increase in earnings from operations during the 1997 period. Additionally, cash
provided by operations included the 1996 receipt of dividends from mining
interests of $18.6.
Investing Activities
Cash used by investing activities was $103.8 for the nine months ended September
30, 1997, compared with $110.6 of cash used in the first nine months of 1996,
which included the acquisition of Cressona for $436.5 (net of cash acquired) and
proceeds of $497.0 from the sale of nonstrategic assets. Capital expenditures
were $107.4 during the first nine months of 1997 compared with $171.1 in the
first nine months of 1996.
In September 1996, the Company, through its subsidiary, Alumax Mill Products,
Inc., exercised its option to purchase its leased Texarkana rolling mill
facility in November 1997 for approximately $97 in cash. The Company is
exploring the possibility of entering into a new operating lease in lieu of
this purchase. Additionally, during 1996, the Company entered into a joint
venture with Yunnan Aluminum Processing Factory in Kunming, China, for the
annual production of 8,000 to 10,000 tonnes of light-gauge aluminum foil for
China's packaging market. Alumax will invest $38 of cash in the joint venture
to develop a continuous cast foil operation. As of September 30, 1997, the
Company had invested $28 of cash in the joint venture. The Company intends to
invest the remainder of the total obligation by the first quarter of 1998.
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<PAGE> 14
Total capital spending in 1997 is expected to be approximately $185, excluding
the buyout of the Texarkana lease.
Financing Activities
Cash used in financing activities was $37.5 in the first nine months of 1997
compared with cash used of $182.6 in the first nine months of 1996. At September
30, 1997, the Company's total debt to capital ratio was 29.2 percent, down from
30.2 percent at December 31, 1996 and 30.4 percent at September 30, 1996. This
improvement was attributable to debt repayments of $37.5. In the first half of
1996, the Company borrowed $375 under available credit facilities to finance the
acquisition of Cressona. All of these borrowings were subsequently repaid during
1996. Debt repayments of $550.6 in the first nine months of 1996 included the
early retirements of $39.3 of Cressona debt acquired and a $90.7 promissory note
due in May 1996. (See Note 6 to the Financial Statements in the Company's 1996
Annual Report on Form 10-K).
On May 30, 1997, the Company amended its existing $400 revolving credit
facility, increasing the total amount available under the facility to $500 and
extending the term of the facility to May 2002. The terms and covenants that
govern the facility were not substantially changed with the amendment.
In October 1997, the Company amended its then existing $500 revolving credit
facility, increasing the total amount available under the facility to $800 and
extending the term of the facility to October 2002. The terms and covenants
that govern the facility were not substantially changed with the amendment. At
September 30, 1997, the entire amount of the facility was available to the
Company.
On October 27, 1997, the Company borrowed $355 under the revolving credit
facility to pay the amounts owed to the IRS based on the United States Tax Court
ruling.
Additionally, $7.0 in dividends were paid to holders of Alumax $4.00 Series A
Convertible Preferred Stock in the first nine months of 1996. In December 1996,
the outstanding shares of Preferred Stock were converted into approximately 9.6
million shares of Alumax Common Stock.
Subsequent to September 30, 1997, the Company began acquiring shares of its
common stock in connection with a stock repurchase program announced in July
1996. That program authorizes the Company to purchase up to 2.5 million common
shares on the open market from time to time at price levels the Company deems
desirable or pursuant to negotiated transactions. The Company anticipates
expending an amount up to approximately $35 during the fourth quarter of 1997
repurchasing its common shares. The purpose of the stock repurchase program
is to help the Company achieve its long-term goal of enhancing stockholder
value.
Risk Management
The Company utilizes certain financial instruments in connection with its risk
management. The risk of loss related to counterparty nonperformance under
financial instrument agreements at September 30, 1997 is not significant.
The Company enters into forward fixed price arrangements that are required by
certain customers and suppliers. The Company may utilize futures contracts or
options to hedge risks associated with forward fixed price arrangements. The
Company may also utilize futures contracts or options to manage price risk
associated with changes in inventory levels. The net amount of such contracts
was approximately 158,825 tonnes at September 30, 1997, and included varying
maturity dates through 2003. Gains or losses with respect to these positions
are reflected in earnings concurrent with consummation of underlying fixed
price transactions. Periodic value fluctuations of the futures contracts
approximately offset the value fluctuations of underlying fixed price
transactions.
The Company also may, from time to time, establish a floor selling price for
varying quantities of future production. This may be accomplished by entering
into forward sales of primary aluminum, purchasing put options, or by entering
into forward sales of primary aluminum, and purchases of call options, which
together provide the same price protection as purchasing put options in a manner
which correlates with the Company's production and sales of primary aluminum.
This strategy may be modified from time to time. At September 30, 1997, the net
amount of the Company's commitments with respect to these financial instruments
covered 257,025 tonnes of future production. The book value and market value of
these financial instruments were $9.3 and $3.5, respectively, at September 30,
1997.
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<PAGE> 15
Certain of the Company's foreign operating expenditures are denominated in
currencies other than the operations' functional currencies, which expose the
Company to exchange rate risks. In order to mitigate its exposure to exchange
rate risk where these conditions exist, the Company may utilize forward foreign
currency contracts. At September 30, 1997, the Company had outstanding $120.5 in
forward foreign currency contracts which mature at various dates through
December 1998. The gains or losses related to these contracts are deferred and
included in the measurement of the related foreign currency denominated
transactions. If these contracts had been terminated at September 30, 1997, the
Company would have paid approximately $2.0.
The Company's debt instruments and related interest rate hedges are susceptible
to market fluctuations based on changes in the cost of borrowing. At September
30, 1997, the fair value of total debt approximated book value. The Lauralco
credit facility, which has a variable interest rate, required the Company to
establish facilities to effectively limit the interest rate exposure of the
commitment. To meet this requirement, the Company has obtained interest rate
swaps with a notional amount of $400 through October 26, 2000 and interest rate
caps having a notional amount of $150 through October 26, 1998. The Company
would have paid approximately $35.0 to terminate these agreements at September
30, 1997.
The Company also purchases natural gas for its operations and enters into
forward contracts to eliminate volatility in prices. At September 30, 1997,
none of these contracts was material.
For further information regarding the Company's risk management, see
Management's Discussion and Analysis of Financial Condition and Results of
Operations and Note 15 to the Financial Statements in the Company's 1996 Annual
Report on Form 10-K.
Environmental Matters
The Company has been named as a defendant or identified as a potentially
responsible party under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA") and similar state laws by governmental agencies and
private parties at 37 pending waste disposal sites which, in most instances,
were owned and operated by third parties. Management periodically evaluates such
matters and records or adjusts liability reserves for remediation and other
costs and potential damages when expenditures are considered probable and can be
reasonably estimated.
The Company's ultimate liability in connection with present and future
environmental claims will depend on many factors, including its volumetric share
of the waste at a given site, the remedial action required, the total cost of
remediation and the financial viability and participation of the other entities
which also sent waste to the site. Based upon current law and information known
to the Company concerning the size of the sites known to it, anticipated costs
of remediation, their years of operation, and the number of other potentially
responsible parties, Management believes that it has adequate reserves for the
Company's probable share of the estimated aggregate liability for the costs of
remedial actions and related costs and expenses and that such liability and
related costs and expenses should not have a material adverse effect on the
financial condition or results of operations of the Company. In addition, the
Company establishes reserves for remedial measures required from time to time at
its own facilities. Any expenditures for remediation programs it may be required
to undertake, either individually or in the aggregate, are not expected to have
a material adverse effect on the financial condition or results of operations of
the Company. The Company's environmental reserves totaled $29.7 at September 30,
1997 and $29.6 at December 31, 1996.
Management does not anticipate that commitments, operating expenses or capital
expenditures for environmental compliance through and including the next fiscal
year will have a material adverse effect on the Company's financial condition or
results of operations. Based on historical trends toward stricter environmental
standards, however, it appears likely that the Company will incur additional
expenditures to remain in compliance with federal and state environmental laws.
-15-
<PAGE> 16
Part II. Other Information
Item 1. Legal Proceedings
The Internal Revenue Service (the "IRS") asserted that Alumax and certain of
its subsidiaries were improperly included in the 1984, 1985 and 1986
consolidated income tax returns of AMAX Inc. and on that basis has assessed a
federal income tax deficiency against Alumax of $129. In response to the IRS'
notice of deficiency, the Company filed a petition in the United States Tax
Court (the "Court") seeking a redetermination in respect of the purported
deficiency. The parties waived their rights to a trial and the matter was
submitted to the Court for decision based upon the pleadings, stipulations,
memoranda and other documents submitted to the Court by the parties. On
September 30, 1997, the Court entered a decision in favor of the IRS opining
that AMAX Inc. did not have the 80 percent control necessary to consolidate. As
a result of the ruling, the Company recorded a charge of $108.6 in the third
quarter of 1997. The expected deficiency and accrued interest was recorded as a
noncurrent liability in the Company's September 30, 1997 financial statements.
On October 27, 1997, the Company paid an aggregate of $411 to the IRS,
representing the expected deficiency and accrued interest. The payment was
funded from cash on hand and borrowings of $355 under the Company's revolving
credit facility. The Company intends to appeal the decision of the Court to the
United States Court of Appeals. See "Legal Proceedings - Tax Dispute Regarding
Consolidation with Amax" in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996.
The Ninth Circuit Court of Appeals has scheduled oral argument for December 3,
1997, on the plaintiff's appeal of orders, entered by the United States District
Court for the Central District of California, granting the Aluminum
Association's motion to dismiss for lack of personal jurisdiction and summary
judgment in favor of the defendant primary aluminum producers as well as the
District Court's order denying the plaintiff's motion for reconsideration. The
plaintiff, a California bicycle manufacturer, filed a purported class action
against the Company and four other primary aluminum producers along with The
Aluminum Association, an industry trade association, in March 1996, alleging
violations of California's antitrust law (the Cartwright Act). See "Legal
Proceedings - Other Legal Proceedings - Antitrust Action" in the Company's
Annual Report on Form 10-K for the year ended December 31, 1996.
On October 3, 1997, the various defendants in a patent infringement action,
initiated by the Company in August 1995, against Hot Metal Moldings, Inc. and
subsequently expanded to include Ormet Primary Aluminum Corporation and certain
subsidiaries and affiliates of Buhler International AG, filed counterclaims
against the Company alleging violations of Section 1 and 2 of the Sherman Act
and Section 4 of the Clayton Act for which they seek injunctive relief and
treble damages in an unspecified amount. The Company believes these
counterclaims are without merit and intends to vigorously oppose them. See
"Legal Proceedings - Other Legal Proceedings - Patent Infringement Action" in
the Company's Annual Report on Form 10-K for the year ended December 31, 1996.
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<PAGE> 17
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit
Number Description
4.01 Amended and Restated Credit Agreement, dated as of October
9, 1997, among Alumax Inc., the Banks Signatory thereto,
Royal Bank of Canada, as Agent, Arranger and Letter of Credit
Issuer, and Canadian Imperial Bank of Commerce, as
Administrative Agent.
11.01 Calculation of Earnings per Common Share.
27.01 Financial Data Schedule (for SEC use only).
(b) Reports on Form 8-K
No reports on Form 8-K were filed by Alumax Inc. during the quarter ended
September 30, 1997.
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<PAGE> 18
SIGNATURES
Pursuant to the requirements 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.
ALUMAX INC.
By /s/ Helen M. Feeney
----------------------------------------
Helen M. Feeney
Vice President and
Corporate Secretary
By /s/ Kevin J. Krakora
----------------------------------------
Kevin J. Krakora
Vice President and Controller
Date: November 13, 1997
-18-
<PAGE> 19
EXHIBIT INDEX
Exhibit
Number Description
4.01 Amended and Restated Credit Agreement, dated as of October
9, 1997, among Alumax Inc., the Banks Signatory thereto,
Royal Bank of Canada, as Agent, Arranger and Letter of Credit
Issuer, and Canadian Imperial Bank of Commerce, as
Administrative Agent.
11.01 Calculation of Earnings per Common Share.
27.01 Financial Data Schedule (for SEC use only).
-19-
<PAGE> 1
EXHIBIT 4.01
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF OCTOBER 9, 1997
AMONG
ALUMAX INC.
THE BANKS SIGNATORY HERETO,
ROYAL BANK OF CANADA,
AS AGENT, ARRANGER AND LETTER OF CREDIT ISSUER
AND
CANADIAN IMPERIAL BANK OF COMMERCE,
AS ADMINISTRATIVE AGENT
================================================================================
<PAGE> 2
<TABLE>
<S> <C> <C>
ARTICLE I AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT ........................ 1
SECTION 1 REVOLVING CREDIT ..................................................... 1
Section 1.1 The Committed Loans ................................................ 1
Section 1.2 Manner of Committed Borrowing ...................................... 2
Section 1.3 Letters of Credit .................................................. 3
Section 1.4 The Bid Loans ...................................................... 4
Section 1.5 Requests for Bid Loans ............................................. 5
Section 1.6 Notice of Bids ..................................................... 6
Section 1.7 Acceptance or Rejection of Bids .................................... 6
Section 1.8 Notice of Acceptance or Rejection of Bids .......................... 6
(a) Notice to Banks Making Successful Bids ................................... 6
Section 1.9 The Notes .......................................................... 7
Section 1.10. Minimum Borrowing Amounts .......................................... 7
Section 1.11. Maturity of Loans................................................... 7
SECTION 2. INTEREST ..................................................................... 7
Section 2.1 Domestic Rate Loans ................................................ 8
Section 2.2 Eurodollar Loans ................................................... 8
Section 2.3 Default Rate ....................................................... 9
Section 2.4 Rate Determinations ................................................ 9
Section 2.5 Funding Indemnity .................................................. 9
Section 2.6 Change of Law ......................................................10
Section 2.7 Unavailability of Deposits or Inability to Ascertain, or Inadequacy
of, LIBOR ..........................................................10
Section 2.8 Increased Cost and Reduced Return ..................................10
Section 2.9 Lending Offices ....................................................11
Section 2.10 Discretion of Bank as to Manner of Funding .........................11
Section 2.11 Interest on Stated Rate Bid Loans ..................................12
SECTION 3. FEES, PAYMENTS, REDUCTIONS, APPLICATIONS .....................................12
Section 3.1 Facility Fee .......................................................12
Section 3.2 Other Fees .........................................................12
Section 3.3 Letter of Credit Fees ..............................................12
Section 3.4 Voluntary Prepayments ..............................................13
Section 3.5 Mandatory Prepayments ..............................................13
Section 3.6 Commitment Reductions and Terminations .............................13
Section 3.7 Capital Adequacy ...................................................13
Section 3.8 Place and Application of Payments ..................................13
Section 3.9 Exemptions from Withholding ........................................14
Section 3.10 Bank Replacement ...................................................14
SECTION 4 REPRESENTATION AND WARRANTIES .................................................15
Section 4.1 Corporate Organization and Authority ...............................15
Section 4.2 Outstanding Debt ...................................................15
Section 4.3 Financial Statements ...............................................15
Section 4.4 Full Disclosure ....................................................16
Section 4.5 Pending Litigation .................................................16
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
Section 4.6 Title to Properties ..................................................16
Section 4.7 Financing is Legal and Authorized ....................................16
Section 4.8 No Defaults ..........................................................17
Section 4.9 Governmental Consent .................................................17
Section 4.10 Taxes ................................................................17
Section 4.11 Not an Investment Company ............................................17
Section 4.12 Use of Proceeds ......................................................17
Section 4.13 ERISA ................................................................17
Section 4.14 Compliance with Environmental and Other Laws .........................17
SECTION 5. CONDITIONS TO EACH EXTENSION OF CREDIT ...................................18
Section 5.1 Conditions to Each Extension of Credit ...............................18
Section 5.2 Notice Deemed to be Warranty .........................................18
SECTION 6. COMPANY COVENANTS ........................................................18
Section 6.1 Corporate Existence, Etc .............................................18
Section 6.2 Insurance ............................................................19
Section 6.3 Taxes, Claims for Labor and Materials, Compliance with Laws ..........19
Section 6.4 Maintenance of Properties and Business ...............................19
Section 6.5 Nature of Business ...................................................19
Section 6.6 Reports and Rights of Inspection .....................................19
Section 6.7 Net Worth ............................................................21
Section 6.8 Leverage Ratio .......................................................21
Section 6.9 Sale Leasebacks ......................................................21
Section 6.10 Indebtedness .........................................................21
Section 6.11 Limitation on Liens ..................................................22
Section 6.12 Prohibition of Fundamental Changes ...................................23
SECTION 7. EVENTS OF DEFAULT AND REMEDIES ...........................................23
Section 7.1 Events of Default ....................................................23
Section 7.2 Non Bankruptcy Defaults ..............................................25
Section 7.3 Bankruptcy Defaults ..................................................25
Section 7.4 The Letters of Credit ................................................25
SECTION 8. DEFINITIONS ..............................................................25
Section 8.1 Definitions ..........................................................25
Section 8.2 Accounting Terms and Determinations ..................................32
SECTION 9. THE AGENT ................................................................33
Section 9.1 Appointment and Duties ...............................................33
Section 9.2 Sufficiency of the Agreement .........................................34
Section 9.3 Independent Investigation ............................................34
Section 9.4 Agents as Banks ......................................................34
Section 9.5 Indemnification ......................................................34
Section 9.6 Refusal to Act .......................................................34
Section 9.7 Successor Agents .....................................................34
Section 9.8 Non-Receipt of Funds by the Administrative Agent .....................35
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 10. MISCELLANEOUS ...............................................................35
Section 10.1 Waiver of Rights ......................................................35
Section 10.2 Non-Business Day ......................................................35
Section 10.3 Documentary Taxes .....................................................35
Section 10.4 Survival of Representations ...........................................36
Section 10.5 Survival of Indemnities ...............................................36
Section 10.6 Set-off Sharing .......................................................36
Section 10.7 Notices ...............................................................36
Section 10.8 Counterparts ..........................................................36
Section 10.9 Successors and Assigns ................................................36
Section 10.10. Participants...........................................................36
Section 10.11. Assignment Agreements .................................................37
Section 10.13. Costs and Expenses.....................................................39
Section 10.14. Amendments and Waivers ................................................39
Section 10.15. Governing Law, Submission to Jurisdiction..............................39
Section 10.16. Waiver of Jury Trial...................................................40
Section 10.17. Entire Agreement.......................................................40
Section 10.18. Headings...............................................................40
ARTICLE 2. EXHIBITS......................................................................40
ARTICLE 3. CHANGES IN BANKS..............................................................40
ARTICLE 4. THE COMMITMENTS OF THE BANKS..................................................40
ARTICLE 5. CONDITIONS PRECEDENT TO EFFECTIVENESS.........................................40
(a) Notes and Agreement.........................................................40
(b) Legal Opinion...............................................................41
(c) Corporate Proceedings.......................................................41
(d) Corporate Documents.........................................................41
(e) Incumbency Certificates.....................................................41
(f) Fees .......................................................................41
(g) Bid Loans ..................................................................41
(h) Closing Certificate.........................................................41
(i) Closing Adjustments ........................................................41
ARTICLE 6. RETURN OF NOTES...............................................................42
ARTICLE 7. MISCELLANEOUS.................................................................42
</TABLE>
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<PAGE> 5
Exhibit A - Bid Loan Request Confirmation
Exhibit B - Invitation to Bid
Exhibit C - Confirmation of Bid
Exhibit D - Notice of Acceptance of Bid
Exhibit E - Alumax Committed Note
Exhibit F - Alumax Bid Note
Exhibit G - Opinion of Sullivan & Cromwell
Exhibit H - Opinion of R.P. Wolf, Esq.
Exhibit I - Designation Agreement
Exhibit J - Closing Certificate
Schedule I - Indebtedness in Excess of $5,000,000 of Company and Restricted
Subsidiaries
Schedule II - Subsidiaries
Schedule III - Subsequent Litigation Events
-iv-
<PAGE> 6
AMENDED AND RESTATED
CREDIT AGREEMENT
To each of the Banks from
time to time party hereto:
Gentlemen:
The undersigned, Alumax Inc., a Delaware corporation (the "Company"),
refers to the Credit Agreement dated as of May 19, 1995 between the Company,
Royal Bank of Canada as Agent, Arranger and Letter of Credit Issuer, Canadian
Imperial Bank of Commerce as Administrative Agent and the financial institutions
from time to time party thereto as Banks, all as amended by the First Amendment
to Credit Agreement, dated as of May 30, 1997 (the "Credit Agreement"),
capitalized terms used herein without definition to have the meanings ascribed
to them in the Credit Agreement as amended and restated hereby. Upon your
acceptance hereof in the space provided for that purpose below, this shall
constitute a contract among us for the following uses and purposes.
ARTICLE I. AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT.
The Credit Agreement shall be amended and, for the sake of convenience
and clarity, shall be restated in its entirety to read as follows:
"The undersigned, Alumax Inc., a Delaware corporation (the "Company"),
applies to you for your several commitments, subject to all the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, to make credit accommodations available to the Company,
all as more fully hereinafter set forth. Each of you is hereinafter referred to
as a "Bank", all of you are hereinafter referred to collectively as the "Banks",
Royal Bank of Canada in its capacity as agent, arranger and letter of credit
issuer hereunder is hereinafter referred to as the "Agent," and Canadian
Imperial Bank of Commerce, in its capacity as administrative agent hereunder is
hereinafter referred to as the "Administrative Agent."
SECTION 1. REVOLVING CREDIT.
Section 1.1. The Committed Loans. Subject to and on the terms and
conditions hereof, each Bank, by its acceptance hereof, severally agrees to make
a loan or loans (individually a "Committed Loan" and collectively the "Committed
Loans") to the Company from time to time prior to the Termination Date on a
revolving basis not at any time exceeding the amount of its commitment as set
forth on the applicable signature page hereof or on the Assignment Agreement to
which it is a party (its "Commitment" and cumulatively for all the Banks the
"Commitments"). The aggregate principal amount of Loans at any one time
outstanding when taken together with the aggregate amount of the L/C Obligations
at any one time outstanding shall not exceed the Commitments as then in effect.
Each Committed Borrowing shall be made ratably from the Banks in proportion to
their Commitments. The Company may elect that any Committed Borrowing be made
available by means of (i) Domestic Rate Loans, or (ii) Eurodollar Loans which
Loans may be repaid and the principal amount thereof reborrowed through the
Termination Date, subject to all reductions in the Commitments permitted or
required pursuant hereto and all other terms and conditions hereof. The Company
promises to pay interest on each Committed Loan at the rates and times provided
in Section 2 hereof.
<PAGE> 7
Section 1.2. Manner of Committed Borrowing.
(a) Notice to the Administrative Agent. The Company shall give
telephonic, telex or telecopy notice to the Administrative Agent (which notice
shall be irrevocable once given and if by telephone shall be promptly confirmed
in writing) by no later than 11:00 A.M. (New York time) (i) on the date at least
three (3) Business Days prior to the date of each requested Committed Borrowing
of Eurodollar Loans and (ii) on the date of each requested Committed Borrowing
of Domestic Rate Loans. Each such notice shall specify the date of the requested
Borrowing (which shall be a Business Day), the amount of the requested
Borrowing, the type of Loans to comprise such Borrowing and, if such Borrowing
is to be comprised of Eurodollar Loans, the Interest Period applicable thereto.
The Company agrees that the Administrative Agent may rely on any such telephonic
or telex notice given by any person it in good faith believes is an Authorized
Representative without the necessity of independent investigation and in the
event any notice by such means conflicts with the written confirmation, such
notice shall govern if the Administrative Agent has acted in reliance thereon.
(b) Notice to the Banks. The Administrative Agent shall give prompt
telephonic, telex or telecopy notice to each of the Banks of any Committed
Borrowing request received pursuant to Section 1.2(a) and, if such notice
requests the Banks to make Eurodollar Loans, the Administrative Agent shall give
notice to the Company and each of the Banks by like means of the interest rate
applicable thereto, promptly after the Administrative Agent has made such
determination.
(c) Company's Failure to Notify. In the event the Company fails to give
notice pursuant to Section 1.2(a) above of the reborrowing of the principal
amount of any maturing Committed Borrowing and has not notified the
Administrative Agent by ll:00 A.M. (New York time) on the day such Committed
Borrowing matures that it intends to repay such Committed Borrowing, the Company
shall be deemed to have requested a Committed Borrowing of Domestic Rate Loans
on such day in the amount of the maturing Committed Borrowing of Loans and the
Administrative Agent shall give the Company notice of such event.
(d) Disbursement of Committed Loans. Not later than 2:00 P.M. (New York
time) on the date of any Committed Borrowing, each Bank shall make available its
Committed Loan in funds immediately available in New York, New York, at the
office of the Administrative Agent in New York, New York, except to the extent
such Committed Borrowing is a reborrowing, in whole or in part, of the principal
amount of a maturing Committed Borrowing of Loans (a "Refunding Borrowing"), in
which case each Bank shall record the Loan made by it as a part of such
Refunding Borrowing on its books or records or on a schedule to the Committed
Note held by it, and shall effect the repayment, in whole or in part, as
appropriate, of its maturing Committed Loan through the proceeds of such new
Committed Loan. Subject to Section 6 hereof, the Administrative Agent shall make
the proceeds of each Committed Borrowing other than Refunding Borrowings
available to the Company at the Administrative Agent's office in New York, New
York. The amount so received by the Administrative Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Company by
depositing the same in immediately available funds in an account of the Company
designated by the Company.
(e) Designated Lender. For any Bank which is a Designating Lender, any
Committed Loan to be made by such Bank may from time to time be made by its
Designated Lender in such Designated Lender's sole discretion, and nothing
herein shall constitute a commitment to make Committed Loans by such Designated
Lender; provided that if any Designated Lender elects not to, or fails to, make
such Committed Loan, its Designating Lender hereby agrees that it shall make
such Committed Loan pursuant to the terms hereof. Any Committed Loan actually
funded by a Designated Lender shall constitute a utilization of the Commitment
of the Designating Lender for all purposes hereunder.
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<PAGE> 8
Section 1.3. Letters of Credit. (a) General Terms. Subject to the terms
and conditions hereof, the Agent shall issue Letters of Credit for the Company's
account in an aggregate undrawn face amount up to the amount of the L/C
Commitment, provided that the aggregate L/C Obligations at any time outstanding
shall in no event exceed the difference between the Commitments in effect at
such time and the aggregate principal amount of Loans then outstanding. Each
Letter of Credit shall have an expiry date which is not later than the
Termination Date or two years from the date of issuance, if earlier, shall be in
a minimum amount of $5,000,000, shall be a letter of credit which may lawfully
be issued and shall conform to the general requirements of the Agent for letters
of credit it issues. Each Letter of Credit shall be issued by the Agent, but
each Bank shall be obligated to reimburse the Agent for its pro rata share of
the amount of each drawing thereunder and, accordingly, the undrawn face amount
of each Letter of Credit shall constitute usage of the Commitment of each Bank
pro rata in accordance with each Bank's Commitment.
(b) Applications. At any time before the Termination Date, the Agent
shall, at the request of the Company, issue one or more Letters of Credit, in a
form satisfactory to the Agent, in an aggregate face amount as set forth above,
upon the receipt of a duly executed application for the relevant Letter of
Credit in the form customarily prescribed by the Agent for the type of Letter of
Credit requested (each an "Application"). This Agreement supersedes any terms of
the Applications which are irreconcilably inconsistent with the terms hereof.
Notwithstanding anything contained in any Application to the contrary (i) the
Company's obligation to pay fees in connection with each Letter of Credit shall
be as exclusively set forth in Section 3.4 hereof, (ii) except during the
continuance of an Event of Default, the Agent will not call for the funding by
the Company of any amount under a Letter of Credit, or any other form of
collateral security for the Company's obligations in connection with such Letter
of Credit, before being presented with a drawing thereunder, and (iii) if the
Agent is not timely reimbursed for the amount of any drawing under a Letter of
Credit on the date such drawing is paid, the Company's obligation to reimburse
the Agent for the amount of such drawing shall bear interest (which the Company
hereby promises to pay) from and after the date such drawing is paid at a rate
per annum equal to the sum of 2% plus the Domestic Rate from time to time in
effect. The Agent will promptly notify the Administrative Agent of each issuance
by it of a Letter of Credit and of each reduction or termination thereof and the
Administrative Agent shall then promptly notify each Bank thereof. If the Agent
issues any Letters of Credit with expiration dates that are automatically
extended unless the Agent gives notice that the expiration date will not so
extend beyond its then scheduled expiration date, the Agent will give such
notice of non-renewal before the time necessary to prevent such automatic
extension if before such required notice date (i) the expiration date of such
Letter of Credit if so extended would be after the Termination Date, (ii) the
Commitments have been terminated or (iii) an Event of Default exists and the
Required Banks have given the Agent instructions not to so permit the extension
of the expiration date of such Letter of Credit. The Agent agrees to issue
amendments to the Letter(s) of Credit increasing the amount, or extending the
expiration date, thereof at the request of the Company subject to the conditions
of Section 5 and the other terms of this Section 1.3. Without limiting the
generality of the foregoing, the Agent's obligation to issue, amend or extend
the expiration date of a Letter of Credit is subject to the conditions of
Section 5 and the other terms of this Section 1.3 and the Agent will not issue,
amend or extend the expiration date of any Letter of Credit if any Bank notifies
the Agent of any failure by the Company to satisfy or otherwise comply with such
conditions and terms and directs the Agent not to take such action.
(c) The Reimbursement Obligations. Subject to Section 1.2(b) hereof,
the obligation of the Company to reimburse the Agent for all drawings under a
Letter of Credit (a "Reimbursement Obligation") shall be governed by the
Application related to such Letter of Credit, except that reimbursement of each
drawing shall be made in immediately available funds at the Agent's principal
office in New York, New York by no later than 12:00 Noon (New York time) on the
date when such drawing is paid or, if drawing was paid after 11:00 A.M. (New
York time), by the end of such day.
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<PAGE> 9
(d) The Participating Interests. Each Bank (other than the Agent), by
its acceptance hereof, severally agrees to purchase from the Agent, and the
Agent hereby agrees to sell to each such Bank (a "Participating Bank"), an
undivided percentage participating interest (a "Participating Interest"), in
each Letter of Credit issued by, and each Reimbursement Obligation owed to, the
Agent. Upon any failure by the Company to pay any Reimbursement Obligation at
the time required on the date the related drawing is paid, as set forth in
Section 1.2(c) above, or if the Agent is required at any time to return to the
Company or to a trustee, receiver, liquidator, custodian or other Person any
portion of any payment of any Reimbursement Obligation, each Participating Bank
shall, not later than the Business Day it receives a demand from the Agent to
such effect, if such demand is made before 1:00 P.M. (New York time), or not
later than the following Business Day, if such demand is made after such time,
pay to the Agent an amount equal to its pro rata share of such unpaid or
recaptured Reimbursement Obligation together with interest on such amount
accrued from the date the related payment was made by the Agent to the date of
such payment by such Participating Bank at a rate per annum equal to (i) from
the date the related payment was made by the Agent to the date two (2) Business
Days after payment by such Participating Bank is due hereunder, the Federal
Funds Rate for each such day and (ii) from the date two (2) Business Days after
the date such payment is due from such Participating Bank to the date such
payment is made by such Participating Bank, the Domestic Rate in effect for each
such day. Each such Participating Bank shall thereafter be entitled to receive
its pro rata share of each payment received in respect of the relevant
Reimbursement Obligation and of interest paid thereon, with the Agent retaining
its pro rata share as a Bank hereunder.
The several obligations of the Participating Banks to the Agent under
this Section 1.3 shall be absolute, irrevocable and unconditional under any and
all circumstances whatsoever (except, without limiting the Company's obligations
under each Application, to the extent the Company is relieved from its
obligation to reimburse the Agent for a drawing under a Letter of Credit because
of the Agent's gross negligence or willful misconduct in determining that
documents received under the Letter of Credit comply with the terms thereof) and
shall not be subject to any set-off, counterclaim or defense to payment which
any Participating Bank may have or have had against the Company, the Agent, any
other Bank or any other Person whatsoever. Without limiting the generality of
the foregoing, such obligations shall not be affected by any Default or Event of
Default or by any reduction or termination of any Commitment of any Bank, and
each payment by a Participating Bank under this Section 1.3 shall be made
without any offset, abatement, withholding or reduction whatsoever. The Agent
shall be entitled to offset amounts received for the account of a Bank under
this Agreement against unpaid amounts due from such Bank to the Agent hereunder
(whether as fundings of participations, indemnities or otherwise).
(e) Indemnification. The Participating Banks shall ratably indemnify
the Agent (to the extent not reimbursed by the Company) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from the Agent's gross
negligence or willful misconduct) that the Agent may suffer or incur in
connection with any Letter of Credit. The obligations of the Participating Banks
under this Section 1.3(e) and all other parts of this Section 1.3(e) shall
survive termination of this Agreement and of all other L/C Documents.
Section 1.4. The Bid Loans. The Company may request the Banks to offer
to make uncommitted loans (each such loan being hereinafter referred to as a
"Bid Loan" and collectively as the "Bid Loans") in the manner set forth in this
Section 1 and in amounts such that the aggregate principal amount of all
Committed Loans and Bid Loans at any time outstanding hereunder, when taken
together with the then aggregate amount of the L/C Obligations at any one time
outstanding, shall not exceed the Commitments as then in effect. The Banks may,
but shall have no obligation to, make such offers and the Company may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section. Each Bank may offer to make Bid Loans in any amount (whether greater
than, equal to, or less than its Commitment), subject to the limitation that the
aggregate principal amount of all Loans outstanding under this Agreement, when
taken together with the aggregate amount of the L/C Obligations at any one time
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<PAGE> 10
outstanding, may not at any time exceed the Commitments then in effect and
subject to the other conditions of this Agreement. Bid Loans may either bear
interest at a stated rate per annum ("Stated Rate Bid Loans") or at a margin
over the LIBOR ("Eurodollar Bid Loans"); provided that there may be no more than
fifteen different Interest Periods for both Stated Rate Bid Loans and Eurodollar
Bid Loans outstanding at the same time.
Section 1.5. Requests for Bid Loans.
(a) Requests and Confirmations. In order to request a Borrowing of Bid
Loans (a "Bid Loan Request") the Company shall give telephonic, telex or
telecopy notice to the Administrative Agent by no later than 11:00 A.M. (New
York time) (i) on the date at least five Business Days prior to the date of the
requested Bid Borrowing (the "Borrowing Date") in the case of a request for
Eurodollar Bid Loans or for both Eurodollar Bid Loans and Stated Rate Bid Loans
and (ii) on the date at least one Business Day prior to the Borrowing Date in
the case of a request solely for Stated Rate Bid Loans. Each such request may be
for up to three maturities and shall be followed on the same day by a duly
completed bid loan request confirmation (a "Bid Loan Request Confirmation"),
delivered by telecopier or other means of facsimile communication, substantially
in the form of Exhibit A hereto or otherwise containing the information required
by this Section, to be received by the Administrative Agent no later than 11:30
A.M. (New York time). Bid Loan Request Confirmations that do not conform
substantially to the format of Exhibit A may be rejected by the Administrative
Agent, and the Administrative Agent shall give telecopy notice to the Company of
such rejection promptly after it determines (which determination shall be
conclusive) that the Bid Loan Request Confirmation does not substantially
conform to the format of Exhibit A. Each Bid Loan Request and each Bid Loan
Request Confirmation shall in each case refer to this Agreement and specify (i)
the proposed Borrowing Date (which must be a Business Day), (ii) the aggregate
principal amount thereof (which shall not be less than $10,000,000 and
thereafter in integral multiples of $5,000,000) and (iii) the proposed maturity
date thereof, which in the case of Stated Rate Bid Loans shall be 1 to 180 days
after the Borrowing Date and in the case of Eurodollar Bid Loans shall be 1, 2,
3 or 6 months after the proposed Borrowing Date (with the Interest Period
applicable to each Eurodollar Bid Loan to be coterminous with its maturity
date), but with no maturity to extend beyond the Termination Date.
(b) Invitation to Bid. Upon receipt by the Administrative Agent of a
Bid Loan Request Confirmation that conforms substantially to the format of
Exhibit A hereto or is otherwise acceptable to the Administrative Agent, the
Administrative Agent shall, by telecopy in the form of Exhibit B hereto, invite
each Bank to bid, on the terms and conditions of this Agreement, to make Bid
Loans pursuant to the Bid Loan Request.
(c) Bids. Each Bank may, in its sole discretion, offer to make a Bid
Loan or Loans (a "Bid") to the Company responsive to the Bid Loan Request. Each
Bid by a Bank shall be made by delivery to the Administrative Agent of a
Confirmation of Bid (a 'Confirmation of Bid") in the form of Exhibit C by
telecopier not later than (i) 10:00 A.M. (New York time) on the proposed
Borrowing Date in the case of a Bid for a Stated Rate Bid Loan and (ii) 2:00
P.M. (New York, New York time) four Business Days prior to the proposed
Borrowing Date in the case of a Bid for a Eurodollar Bid Loan; provided,
however, that any Bid made by the Administrative Agent must be made by telecopy
to the Company by no later than fifteen minutes prior to the time that bids from
the other Banks are required to be received. Each Bid and each Confirmation of
Bid shall refer to this Agreement and specify (i) the principal amount of each
Bid Loan that the Bank is willing to make to the Company and the type of Bid
Loan (i.e., Stated Rate or Eurodollar), (ii) the interest rate (which shall be
computed on the basis of a 360-day year and actual days elapsed) and in the case
of a Eurodollar Bid Loan shall be expressed in terms of a percentage margin to
be added to the LIBOR for the Interest Period to be applicable to such
Eurodollar Bid Loan) at which the Bank is prepared to make each Bid Loan and
(iii) the Interest Period applicable thereto. The Administrative Agent shall
reject any Bid if such Bid (i) does not specify all of the
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<PAGE> 11
information specified in the immediately preceding sentence, (ii) contains any
qualifying, conditional, or similar language, (iii) proposes terms other than or
in addition to those set forth in the Bid Loan Request to which it responds, or
(iv) is received by the Administrative Agent later than the times provided for
above. Any Bid submitted by a Bank pursuant to this Section 1.5 shall be
irrevocable. Each offer contained in a Bid to make a Bid Loan in a certain
amount, at a certain interest rate, and for a certain Interest Period is
referred to herein as an "Offer".
Section 1.6. Notice of Bids; Advice of Rate. The Administrative Agent
shall give telecopy notice to the Company of the number of Bids made, the
interest rate(s) and Interest Period(s) applicable to each Bid, the maximum
principal amount bid at each interest rate for each Interest Period, and the
identity of the Bank making such Bid, such notice to be given by (i) 10:30 A.M.
(New York time) on the Borrowing Date in the case of Bid Loan Requests solely
for Stated Rate Bid Loan or (ii) 4:00 P.M. four Business Days prior to the
proposed Borrowing Date in the case of Bid Loan Requests for Eurodollar Bid
Loans or for both Stated Rate Bid Loans and Eurodollar Bid Loans. The Company
then shall pay the Administrative Agent its fee for managing the bid auction in
question in the amount separately agreed between the Company and the
Administrative Agent. The interest rates quoted for Eurodollar Bid Loans shall
be expressed in terms of a stated percentage to be added to the LIBOR to be
applicable to such Bid Loan.
Section 1.7. Acceptance or Rejection of Bids. The Company may in its
sole and absolute discretion, subject only to the provisions of this Section,
irrevocably accept or reject, in whole or in part, any Offer contained in a Bid.
No later than 11:00 A.M. (New York time), the Company shall give telecopy notice
to the Administrative Agent of whether and to what extent it has decided to
accept or reject any or all of the Offers contained in the Bids made in response
to a Bid Loan Request to be received by the Administrative Agent (i) on the
proposed Borrowing Date in the case of Stated Rate Bid Loans and three Business
Days prior to the proposed Borrowing Date in the case of Eurodollar Bid Loans;
provided, however, that (A) the Company shall accept offers for any of the
maturities specified by the Company in its Bid Loan Request Confirmation solely
on the basis of ascending interest rates for each such Interest Period, (B) if
the Company declines to borrow, or if it is restricted by any other condition
hereof from borrowing, the maximum principal amount of Bid Loans in respect of
which Offers at a particular interest rate for a particular Interest Period have
been made, then the Company shall accept a pro rata portion of each such Offer,
based as nearly as possible on the ratio of the maximum aggregate principal
amounts of Bid Loans for which each such Offer was made by each Bank (provided
that, if the available principal amount of Bid Loans to be so allocated is not
sufficient to enable Bid Loans to be so allocated to each relevant Bank in
integral multiples of $1,000,000, then the Administrative Agent may round
allocations up or down in integral multiples not less than $100,000 as it shall
deem appropriate), (C) the aggregate principal amount of all Offers accepted by
the Company shall not exceed the maximum amount contained in the related Bid
Loan Request Confirmation, and (D) no Offer of a Bid Loan shall be accepted in a
principal amount less than $10,000,000 and thereafter in integral multiples of
$5,000,000.
Section 1.8. Notice of Acceptance or Rejection of Bids. (a) Notice to
Banks Making Successful Bids. The Administrative Agent shall give telecopy
notice to each Bank if any of the Offers contained in its Bid has been accepted
(and if so, in what amount, at what interest rate and for what Interest Period)
no later than 11:30 A.M. (New York time) (i) on the proposed Borrowing date in
the case of Stated Rate Bid Loans and (ii) three Business days prior to the
proposed Borrowing Date in the case of Eurodollar Bid Loans, and each successful
bidder will thereupon become bound, subject to Section 5 and the other
applicable conditions hereof, to make the Bid Loan(s) in respect of which its
Bid has been accepted. As soon as practicable thereafter the Administrative
Agent shall send written notice substantially in the form of Exhibit D hereto to
each such successful bidder; provided, however, that failure to give such notice
shall not affect the obligation of such successful bidder to disburse its Bid
Loans as herein required.
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<PAGE> 12
(b) Notice to all Banks. As soon as practicable after each Borrowing
Date for Bid Loans, the Administrative Agent shall notify each Bank (whether or
not its bid or its bids were successful) of the aggregate amount of Bid Loans
advanced pursuant to a Bid Loan Request on such Borrowing Date, the maturities
thereof, and the lowest and highest interest rates at which Bid Loans were made
for each maturity.
(c) Disbursement of Bid Loans. Not later than 1:00 P.M. (New York time)
on the Borrowing Date for each Borrowing of a Bid Loan(s), each Bank bound to
make Bid Loan(s) in accordance with Section 1.8(a) shall make available to the
Administrative Agent the principal amount of each such Bid Loan in immediately
available funds in New York, New York at the Administrative Agent's payment
office in New York, New York. The Administrative Agent shall promptly
thereafter, but not later than 4:00 p.m. on such date, make available to the
Company like funds as received from each Bank, as specified by the Company.
(d) Designated Lender. For any Bank which is a Designating Lender, any
Bid Loan to be made by such Designating Lender may from time to time be made by
its Designated Lender in such Designated Lender's sole discretion, and nothing
herein shall constitute a commitment to make Bid Loans by such Designated
Lender; provided that if any Designated Lender elects not to, or fails to, make
any such Bid Loan the offer for which has been accepted by the Company in
accordance with the foregoing provisions of this Section 1.8, its Designating
Lender hereby agrees that it shall make such Bid Loan pursuant to the terms
hereof.
Section 1.9. The Notes. All Committed Loans made to the Company by each
Bank shall be evidenced by a promissory note of the Company payable to the order
of such Bank in the amount of its Commitment and in the form (with appropriate
insertions) of Exhibit E hereto (individually a "Committed Note" and
collectively the "Committed Notes"). All Bid Loans made to the Company by each
Bank shall be evidenced by a promissory note of the Company payable to the order
of such Bank in the form (with appropriate insertions) of Exhibit F hereto (such
notes being hereinafter referred to individually as a "Bid Note" and
collectively as the "Bid Notes").
Each Bank shall record on its books or records or on a schedule to its
applicable Note the amount of each Loan made by it which is to be evidenced
thereby, all payments of principal and interest and the principal balance from
time to time outstanding thereon and in respect of any Fixed Rate Loan, the
interest rate and each Interest Period applicable thereto and, in the case of
Stated Rate Bid Loans, the maturity thereof provided that prior to the transfer
of any Note all such amounts shall be recorded on a schedule to such Note. The
record thereof, whether shown on the books or records of a Bank or on a schedule
to any Note, shall be prima facie evidence as to all such amounts; provided,
however, that the failure of any Bank to record any of the foregoing shall not
limit or otherwise affect the obligation of the Company to repay all Loans made
to it hereunder together with accrued interest thereon at the rates and times
provided for herein and in the Notes.
Section 1.10. Minimum Borrowing Amounts. Each Borrowing shall be in an
amount not less than $10,000,000 and thereafter in integral multiples of
$5,000,000.
Section 1. 11. Maturity of Loans. Each Fixed Rate Loan shall mature and
become due and payable on the last day of the Interest Period applicable
thereto, provided that, subject to the terms and conditions of this Agreement,
such Fixed Rate Loan may be refunded through a Refunding Borrowing. Each
Domestic Rate Loan shall mature and become due and payable on the Termination
Date.
SECTION 2. INTEREST.
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<PAGE> 13
Section 2.1. Domestic Rate Loans. Each Domestic Rate Loan made by a
Bank shall bear interest (computed on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed) on the unpaid principal amount thereof
from time to time outstanding from the date such Loan is made until maturity
(whether by acceleration, prepayment or otherwise) at a rate per annum,
determined daily, equal to the Domestic Rate from time to time in effect,
payable on the last Business Day of each March, June, September and December and
at maturity (whether by acceleration, prepayment or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Administrative
Agent from time to time as its prime commercial rate for United States
dollar loans made in the United States (it being understood that such
rate may not be the Administrative Agent's best or lowest rate), with
any change in the Domestic Rate resulting from a change in said prime
commercial rate to be effective as of the date of the relevant change
in said prime commercial rate; and
(ii) the sum of (x) the rate for that day set forth opposite
the caption "Federal Fund (Effective)" in the daily statistical release
designated as "Composite 3:30 P.M. Quotations for U.S. Government
Securities", or any successor publication, published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, the arithmetic average of the rates quoted to the
Administrative Agent as the prevailing rates per annum (rounded upward,
if necessary, to the next higher 1/100 of 1%) bid at approximately
11:00 A.M. (New York time) (or as soon thereafter as is practicable) on
such day by two or more New York Federal funds dealers of recognized
standing selected by the Administrative Agent for the purchase at face
value of Federal funds in the secondary market in an amount comparable
to the principal amount owed to the Administrative Agent for which such
rate is being determined, plus (y) 1/2 of 1%.
Section 2.2. Eurodollar Loans. Each Eurodollar Loan made by a Bank
shall bear interest (computed on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from time to time outstanding
from the date of the Borrowing of such Loan until maturity (whether by
acceleration, prepayment or otherwise) at a rate per annum equal to the sum of
the Applicable Eurodollar Margin plus LIBOR, payable on the last day of the
applicable Interest Period and at maturity (whether by acceleration, prepayment
or otherwise), and, if the applicable Interest Period is longer than three
months, on the date occurring every three months after the date of the Borrowing
of such Loan. The interest rate applicable to a Eurodollar Loan shall be fixed
during the Interest Period applicable to such Loan except with respect to
adjustments for changes in the Applicable Eurodollar Margin (pursuant to the
definition thereof) or to reflect increased costs as herein provided.
"Applicable Eurodollar Margin" means for each (a) Committed Eurodollar
Loan: (i) 0.150% per annum for any day Level I Status exists, (ii) 0.175% per
annum for any day Level II Status exists, (iii) 0.225% per annum for any day
Level III Status exists, (iv) 0.325% per annum for any day Level IV Status
exists, and (v) 0.525% per annum for any day Level V Status exists and (b) for
each Eurodollar Bid Loan the rate per annum agreed to pursuant to Section 1.7
hereof.
"LIBOR" means, with respect to an Interest Period for a Borrowing of
Eurodollar Loans, (a) the LIBOR Index Rate for such Interest Period, if such
rate is available, and (b) if the LIBOR Index Rate is unavailable or cannot be
determined generally or for the Borrowing or Interest Period in question, the
arithmetic average of the rates of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) at which deposits in U.S. dollars in
immediately available funds are offered to the Reference Banks at 11:00 am.
(London, England time) two (2) Business Days before the beginning of such
Interest Period by three (3) or more major banks in the interbank eurodollar
market selected by the Reference Banks for a period equal to such Interest
Period and in an amount equal or comparable to the principal amount of the
Eurodollar Loan scheduled to be made by, in the case of Committed Loans, the
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Administrative Agent as part of such Borrowing or in the case of Eurodollar Bid
Loans, each Bank scheduled to make such Bid Loan.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum (rounded
upwards, if necessary, to the next higher one hundred-thousandth of a percentage
point) for deposits in U.S. Dollars for a period equal to such Interest Period,
which appears on the Telerate Page 3750 as of 11:00 a.m. (London, England time)
on the day two Business Days before the commencement of such Interest Period.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits).
Section 2.3. Default Rate. If any payment of principal on any Loan is not made
when due (whether by acceleration or otherwise), such principal shall bear
interest (computed on the same basis as in effect thereon at the time of such
default) from the date such payment was due until paid in full, payable on
demand, at a rate per annum equal to:
(a) with respect to any Domestic Rate Loan, the sum of two
percent (2%) per annum plus the Domestic Rate from time to time in
effect;
(b) with respect to any Fixed Rate Loan, the sum of two
percent (2)% per annum plus the rate of interest in effect thereon at
the time of such default until the end of the Interest Period
applicable thereto and, thereafter, at a rate per annum equal to the
sum of two percent (2%) per annum plus the Domestic Rate from time to
time in effect; and
(c) notwithstanding the foregoing, the Default Rate shall in
no event exceed the maximum applicable interest rate permitted by law.
Section 2.4. Rate Determinations. The Administrative Agent shall
determine each interest rate applicable to the Loans hereunder in accordance
herewith, and its determination thereof if reasonably made shall be prima facie
correct, subject to a showing of error.
Section 2.5. Funding Indemnity. In the event any Bank shall incur any
loss, cost or expense (including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund or maintain any Fixed Rate Loan or the relending
or reinvesting of such deposits or amounts paid or prepaid to such Bank, and any
loss of profit) as a result of:
(a) any payment or prepayment of a Fixed Rate Loan on a date
other than the last day of its Interest Period for any reason;
(b) any failure (because of a failure to meet the conditions
of Section 5 or otherwise) by the Company to borrow a Fixed Rate Loan
on the date specified in a notice given by the Company pursuant to this
Agreement; or
(c) any failure by the Company to make any payment of
principal on any Fixed Rate Loan when due (whether by acceleration,
mandatory prepayment or otherwise),
then, upon the demand of such Bank, the Company shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Company a
certificate executed by an officer of such Bank setting forth the amount of such
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<PAGE> 15
loss, cost or expense in reasonable detail (including an explanation of the
basis for and the computation of such loss, cost or expense) and such
certificate shall be deemed prima facie correct.
Section 2.6. Change of Law. Notwithstanding any other provisions of
this Agreement or any Note, if at any time any change in applicable law or
regulation or in the interpretation thereof makes it unlawful for any Bank to
make or continue to maintain Committed Eurodollar Loans or to give effect to its
obligations to make Committed Eurodollar Loans as contemplated hereby, such Bank
shall promptly give notice thereof to the Company and the Administrative Agent,
and such Bank's obligations to make or maintain Committed Eurodollar Loans under
this Agreement shall terminate until it is no longer unlawful for such Bank to
make or maintain Committed Eurodollar Loans. To the extent required to comply
with any such law as changed, the Company shall prepay on demand the outstanding
principal amount of any affected Eurodollar Loans, together with all interest
accrued thereon and all other amounts then due and payable to such Bank under
this Agreement; provided, however, subject to all of the terms and conditions of
this Agreement, the Company may then elect to borrow the principal amount of the
affected Eurodollar Loan from such Bank by means of a Domestic Rate Loan from
such Bank that shall not be made ratably by the Banks but only from such
affected Bank. During the period when it is unlawful for any Bank to make
Eurodollar Loans, Loans shall continue to be made in such a manner so that the
percentage of each Bank's Loan Commitment in use in the form of Committed Loans
is identical, but the Banks affected by such illegality shall make their share
of each Committed Borrowing which has been requested in the form of Eurodollar
Loans available in the form of a Domestic Rate Loan.
Section 2.7. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period
for any Committed Borrowing of Fixed Rate Loans the Administrative Agent is
advised by the Required Banks that deposits in United States Dollars (in the
applicable amounts) are not being offered to them in the relevant market for
such Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Company and the Banks, whereupon until the Administrative Agent
notifies the Company that the circumstances giving rise to such suspension no
longer exist, the obligations of the Banks to make Eurodollar Loans shall be
suspended.
Section 2.8. Increased Cost and Reduced Return. If on or after the date
hereof, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency:
(a) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Fixed Rate Loans, its Notes,
its Letters of Credit or its obligation to make Fixed Rate Loans or to
participate in the Letters of Credit, or shall change the basis of
taxation of payment to any Bank (or its Lending Office) of the
principal of or interest on its Fixed Rate Loans, Letters of Credit or
any other amounts due under this Agreement in respect of its Fixed Rate
Loans or Letters of Credit or its obligation to make Fixed Rate Loans
or to participate in the Letters of Credit (except for changes
involving the imposition or increase of a tax on the overall net income
or gross receipts of such Bank or its Lending Office); or
(b) shall impose, modify or deem applicable any reserve,
special deposit or similar requirements (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System against assets of, deposits with or for the account of,
or credit extended by, any Bank (or its Lending Office) or shall impose
on any Bank (or its Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other
condition affecting its Fixed Rate Loans, its Notes, its Letter(s) of
Credit, or its
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<PAGE> 16
participation in any thereof, any Reimbursement Obligation owed to it,
or its obligation to make Fixed Rate Loans, to issue a Letter of
Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, issuing or
maintaining a Letter of Credit or participating therein, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Administrative Agent), the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction. A certificate of any Bank claiming compensation under this
Section 2.8 and setting forth the additional amount or amounts to be paid to it
hereunder shall be prima facie correct subject to a showing of error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods. A Bank shall not be entitled to compensation under this
Section 2.8 with respect to any adoption or change for any period which is more
than thirty days prior to the date it notifies the Company of the adoption or
change giving rise to the request for compensation (except to the extent the
adoption or change has a retroactive effective date in which case such Bank
shall also be entitled to compensation for the period given retroactive effect
to the extent not covered by the thirty (30) day period prior to such notice)
and any Bank desiring to claim compensation hereunder shall notify the Company
of the adoption or change giving rise to the claim in question as promptly as
practicable and in any event within thirty days after becoming aware of same.
Without limiting the generality of the foregoing, the Company shall pay
to each Bank, so long as such Bank shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
liabilities, additional interest on the unpaid principal amount of each
Eurodollar Loan of such Bank, from the effective date of such requirement until
such principal amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) LIBOR for the Interest
Period for such Eurodollar Loan from (ii) the rate obtained by dividing such
LIBOR by a percentage equal to 100% minus the Eurodollar Reserve Percentage of
such Bank for such Interest Period, payable on each date on which interest is
payable on such Eurodollar Loan. Such additional interest shall be determined by
such Bank and notified to the Company through the Administrative Agent, and such
determination shall be prima facie correct, subject to showing of error.
Section 2.9. Lending Offices. Each Bank may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "Lending Office") for each type of
Loan available hereunder or at such other of its branches, offices or affiliates
as it may from time to time elect and designate in a notice to the Company and
the Administrative Agent (but such funds shall in any event be made available to
the Company at the office of the Administrative Agent as herein provided for),
provided that the Company shall not be required to reimburse any Bank under any
of the provisions of this Section 2 for any cost which such Bank would not have
incurred but for changing its lending or funding branch unless the Company
consented to such change after being advised by such Bank of any increased costs
then existing for which such Bank could claim reimbursement from the Company if
such Bank made the change in its lending or funding branch in question. A Bank
may request that separate Notes be issued to each of its Lending Offices but all
of such offices shall be treated as one "Bank" hereunder and all Committed Notes
issued to Lending Offices of any one Bank shall expressly state that they may
not collectively be enforced for a principal amount in excess of such Bank's
Committed Loans.
Section 2.10. Discretion of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations under this Agreement shall be made as if each Bank
had actually funded and maintained
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<PAGE> 17
each Fixed Rate Loan (other than Stated Rate Bid Loans) through the purchase of
deposits in the relevant market having a maturity corresponding to such Loan's
Interest Period and bearing an interest rate equal to LIBOR for such Interest
Period.
Section 2.11. Interest on Stated Rate Bid Loans. Each Stated Rate Bid
Loan made by a Bank shall bear interest (computed on the basis of a year of 360
days and actual days elapsed) on the unpaid principal amount thereof from time
to time outstanding from the date of the Borrowing of such Loan until maturity
(whether by acceleration, prepayment or otherwise) at the rate per annum
determined for such Stated Rate Bid Loan pursuant to Section 1 hereof, payable
on its maturity date (whether by acceleration, prepayment or otherwise) and if
such Stated Rate Bid Loan has a maturity of longer than 90 days then on the day
occurring every 90 days after the Borrowing Date for such Stated Rate Bid Loan
and at its maturity.
SECTION 3. FEES, PAYMENTS, REDUCTIONS, APPLICATIONS.
Section 3.1. Facility Fee. For the period from the Closing Date to and
including the Termination Date, the Company shall pay to the Administrative
Agent for the account of the Banks a facility fee at the rate of 0.10% per annum
(computed on the basis of a year of 365 or 366 days, as the case may be, for the
actual number of days elapsed) on the average daily amount of the Commitments in
effect under this Agreement from time to time (whether used or unused) such fee
to be payable in arrears on the last Business Day of each March, June, September
and December thereafter to and including, and on, the Termination Date.
Section 3.2. Other Fees. The Company shall pay to the Administrative
Agent and Agent for their own use and benefit such agency and/or other fees as
the Company and the Administrative Agent and Agent may mutually agree.
Section 3.3. Letter of Credit Fees. (a) The Company shall pay to the
Agent for its own account fees at the rate of 1/8 of 1% per annum (computed on
the basis of a year of 360 days for the actual number of days elapsed) on the
average daily undrawn amount of outstanding Letters of Credit for any period
during which any Letters of Credit are outstanding, such fees to be payable in
arrears on the last Business Day of each March, June, September and December
thereafter to and including, and on, the Termination Date. The Company shall
also pay to the Agent such issuing, processing and transaction fees and charges
as the Agent may from time to time customarily impose in connection with the
issuance, negotiation and payment of letters of credit and drafts drawn
thereunder.
(b) The Company shall pay to the Administrative Agent for the ratable
benefit of the Banks a Letter of Credit usage fee (computed on the basis of a
year of 360 days for the actual number of days elapsed) for each Letter of
Credit outstanding hereunder on the average daily undrawn amount of each Letter
of Credit for any period during which any Letters of Credit are outstanding,
such fees to be payable in arrears on the last Business Day of each March, June,
September and December thereafter to and including, and on, the Termination Date
in accordance with the following schedule:
<TABLE>
<CAPTION>
FINANCIAL PERFORMANCE
LETTERS LETTERS
LEVEL OF CREDIT OF CREDIT
<S> <C> <C>
For each day Level I Status exists 0.150% 0.100%
For each day Level II Status exists 0.175% 0.125%
For each day Level III Status exists 0.225% 0.175%
For each day Level IV Status exists 0.325% 0.275%
For each day Level V Status exists 0.525% 0.475%
</TABLE>
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<PAGE> 18
Section 3.4. Voluntary Prepayments. The Company shall have the
privilege of prepaying Committed Loans (but not Bid Loans) in whole or in part
(but if in part then in an aggregate minimum amount for all Banks of $5,000,000
and thereafter in integral multiples of $1,000,000) at any time upon one
Business Day's (in the case of Domestic Rate Loans) or three Business Days (in
the case of Committed Fixed Rate Loans) prior notice to the Administrative Agent
(such notices, if received subsequent to 11:00 A.M. New York time on a given
day, to be treated as though received at the opening of business on the next
Business Day), which shall promptly so notify the Banks, by paying to the
Administrative Agent for the account of the Banks the principal amount to be
prepaid and (i) if such prepayment prepays the Notes in full, accrued interest
thereon to the date fixed for prepayment and (ii) any amount due the Banks under
Section 2.5 hereof.
Section 3.5. Mandatory Prepayments. In the event that the sum of the
aggregate outstanding principal balances of the Notes and of the aggregate L/C
Obligations should at any time and for any reason exceed the aggregate amounts
of the Commitments as then in effect, the Company shall immediately and without
notice or demand prepay the Notes by the amount of the excess except to the
extent a Bank has elected not to accept such prepayment pursuant to the last
sentence of Section 3.8 hereof. Concurrently with each prepayment called for by
this Section 3.5 the Company shall pay any amount due the Banks in respect of
such prepayment under Section 2.5 hereof.
Section 3.6. Commitment Reductions and Terminations. The Company shall
have the privilege at any time and from time to time upon five Business Days
prior notice to the Administrative Agent (which shall promptly notify the Banks)
to ratably terminate the Commitments in whole or in part (but if in part then in
a minimum amount of $5,000,000 or an integral multiple thereof), but the
Commitments may not be terminated or reduced below the amount of any Bid Loans
and L/C Obligations at the time outstanding. No termination or reduction of the
Commitments shall be reinstated.
Section 3.7. Capital Adequacy. If any Bank shall determine that the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by such Bank (or
its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital as a consequence of its Commitment or other obligations
hereunder or credit extended by it hereunder to a level below that which such
Bank could have achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time as specified
by such Bank the Company shall pay to such Bank, such additional amount or
amounts as will compensate such Bank for such reduction. A certificate of any
Bank claiming compensation under this Section 3.7 and setting forth the
additional amount or amounts to be paid to it hereunder shall be prima facie
evidence thereof subject to a showing of error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
Section 3.8. Place and Application of Payments. All payments of
principal of and interest on the Committed Loans and all payments of facility
and letter of credit fees and all other amounts payable under this Agreement
shall be made to the Administrative Agent by no later than 2:00 P.M. (New York
time) (except as otherwise specified herein) at the payment office of the
Administrative Agent in New York, New York (or such other location in the State
of New York as the Administrative Agent may designate to the Company) for the
benefit of the Banks. All such payments shall be made in lawful money of the
United States of America, in immediately available funds at the place of
payment, without setoff or counterclaim and without reduction for, and free
from, any and all present or future taxes, levies, imposts, duties, fees,
charges, deductions, withholdings, restrictions or conditions of any nature
imposed by any government or any political subdivision or taxing authority
thereof (other than taxes on
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<PAGE> 19
the overall income or gross receipts of such Bank and imposed by the
jurisdiction in which such such chief executive office or its Lending Office is
located; provided that any Bank receiving such payment shall be in compliance
with Section 3.9 hereof). The Administrative Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest (ratably in accord with the respective amount of principal and interest
due and owing each Bank) or fees (ratably in accord with the amount owing each)
to the Banks, and like funds relating to the payment of any other amount payable
to any Bank to such Bank, in each case to be applied in accordance with the
terms of this Agreement. Unless the Company otherwise directs, principal
prepayments shall be applied first to the Domestic Rate Loans and then to the
Fixed Rate Loans in the order of their maturity. The foregoing to the contrary
notwithstanding, unless and until an Event of Default occurs, all mandatory
prepayments applicable to the Loans shall be first applied to any outstanding
Committed Loans until payment in full thereof and only thereafter shall any
prepayment be applied to the Bid Loans. No Bank holding Bid Loans shall under
any circumstances be required to accept a prepayment whether or not such
prepayment is required to be made by the provisions of Section 3.5 hereof.
Section 3.9. Exemptions from Withholding. (a) U.S. Withholding Tax
Exemptions. Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) shall submit to the Company and the
Administrative Agent duly completed and signed copies of either Form 1001
(relating to such Bank and entitling it to a complete exemption from withholding
on all amounts to be received by such Bank, including fees, pursuant to this
Agreement and its Loans) or Form 4224 (in duplicate) (relating to all amounts to
be received by such Bank, including fees, pursuant to this Agreement and its
Loans) of the United States Internal Revenue Service. Thereafter and from time
to time, each such Bank shall submit such additional duly completed and signed
copies of one or the other of such forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing authorities) and
duly updated forms as the Company or Administrative Agent may notify such Bank
are required under then-current United States law or regulations to avoid United
States withholding taxes on payments in respect of all amounts to be received by
such Bank, including fees, pursuant to this Agreement or the Loans.
(b) Inability of Bank to Submit Forms. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit any form or
certificate that such Bank is obligated to submit pursuant to subsection (a) of
this Section 3.9 or that such Bank is required to withdraw or cancel any such
form or certificate previously submitted or any such form or certificate
otherwise becomes ineffective or inaccurate, such Bank shall promptly notify the
Company and the Administrative Agent of such fact and such Bank shall to that
extent not be obligated to provide any such form or certificate and will be
entitled to withdraw or cancel any affected form or certificate, as applicable.
In the event any Bank so notifies the Company and the Administrative Agent, such
Bank agrees that it will at any time thereafter at the request of the Company
assign its Notes and rights and obligations hereunder to another lender
designated by the Company and approved by the Administrative Agent and the Agent
(which approvals will not be unreasonably withheld) under and pursuant to
Section 10.11 hereof (except that the assignment and retention minimums shall
not apply) upon payment to it of the amount of principal and accrued and unpaid
interest and fees owing it as of the date such assignment becomes effective and
any amount which would be due it hereunder had its Fixed Rate Loans been prepaid
rather than assigned.
Section 3.10. Bank Replacement. If any Bank requests compensation for
increased costs or other amounts pursuant to Sections 2.8 or 3.7, or suspends
its obligation to make Eurodollar Loans under Section 2.6 or 2.8 hereof or the
Company is required to make any reduction or withholding with respect to any
payment due any Bank hereunder (each Bank hereby undertaking to promptly notify
the Company if it becomes aware of circumstances which would require such a
reduction or withholding), or if any Bank fails or would not be able to comply
with its obligations under this Agreement (in any such case a "Replaceable
Bank") the Company may, with the consent of the Agent and Administrative Agent,
or if the
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<PAGE> 20
Replaceable Bank is the Administrative Agent or Agent, with the consent or the
Administrative Agent and Required Banks, which consent in either case shall not
be unreasonably withheld, propose that another bank (a "Replacement Bank"),
which bank may be an existing Bank, be substituted for and replace the
Replaceable Bank for purposes of this Agreement. If a Replacement Bank is so
substituted for the Replaceable Bank, the Replaceable Bank shall enter into an
Assignment Agreement with the Replacement Bank, the Company and the
Administrative Agent (or the other Banks, if the Administrative Agent is the
Replaceable Bank) to assign and transfer to the Replacement Bank the Replaceable
Bank's Commitment and Loans hereunder pursuant to and in accordance with the
provisions and requirements of Section 10.11 and, as a condition to its
execution thereof, the Replaceable Bank shall concurrently receive the full
amount of its Loans, interest thereon, all accrued fees to which it is entitled
under this Agreement and an amount equal to the amount which the Replaceable
Bank would have been entitled to receive under Section 2.5 hereof if its Fixed
Rate Loans had been prepaid rather than assigned. The foregoing to the contrary
notwithstanding, no Bank may be replaced hereunder if at the time any Bid Loans
are owing to such Bank and no such Bank may be required to accept a prepayment
on any Bid Loan owing it.
SECTION 4. REPRESENTATION AND WARRANTIES.
The Company represents and warrants to each of the Banks as follows:
Section 4.1. Corporate Organization and Authority. The Company and each
Restricted Subsidiary is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, has all
requisite power and authority and all licenses and permits necessary in any
respect material to the Company and its Restricted Subsidiaries taken as a whole
to own and operate its properties and to carry on its business as now conducted
and as presently proposed to be conducted and is duly licensed or qualified and
in good standing as a foreign corporation in each jurisdiction in which the
nature of the business transacted by it or the nature of the Property owned or
leased by it makes such licensing or qualification necessary and in which the
failure to be so licensed or qualified would have a Material Adverse Effect.
Schedule II hereto contains a complete and correct list of all Subsidiaries of
the Company as of the date hereof and correctly sets forth, as to each, whether
or not it constitutes a Restricted Subsidiary, the jurisdiction of
incorporation, and the percentage of the issued and outstanding shares of such
Subsidiary owned by the Company or by Subsidiaries of the Company. All of the
issued and outstanding shares of capital stock of each such Restricted
Subsidiary are valid and fully paid and nonassessable and all such shares of
Restricted Subsidiaries indicated in Schedule II as owned by the Company or a
Restricted Subsidiary are owned, beneficially and of record, by the Company or
such Restricted Subsidiary, free of any Lien.
Section 4.2. Outstanding Debt. Schedule I hereto correctly describes
all Indebtedness of the Company and its Restricted Subsidiaries in excess of
$5,000,000 and generally identifies all Liens securing such Indebtedness.
Section 4.3. Financial Statements. The consolidated and consolidating
balance sheets of the Company and its Consolidated Subsidiaries as at December
31, 1996, and the related consolidated statements of income, stockholders'
equity and changes in financial position (or cashflow) for the fiscal year
ending on such date, accompanied, in the case of the consolidated balance sheets
and statements, by reports thereon containing opinions by Coopers & Lybrand
L.L.P., and the unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at June 30, 1997 and the related consolidated
statements of income, retained earnings and changes in financial position (or
cash flow) for the six months ending on such date (copies of which have been
furnished to the Banks), have been prepared in accordance with GAAP and present
fairly the financial position of the Company and its Consolidated Subsidiaries
or Restricted Subsidiaries, as the case may be as of such dates and the results
of their operations and changes in their financial position for the periods
covered thereby. Since June 30,
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<PAGE> 21
1997 and through the date hereof, there has been no material adverse change in
the condition, financial or otherwise, of the Company and its Consolidated
Subsidiaries from that shown on the above-described balance sheet as of such
date. It is understood that the adverse ruling in the tax dispute in respect of
the consolidation of the tax returns of the Company and its Subsidiaries with
those of AMAX Inc. for 1984, 1985 and 1986, which is referred to in Section 4.10
below and is described in the Company's Exchange Act Reports (as defined below)
does not and a subsequent adverse ruling thereon on appeal shall not, constitute
a "material adverse change".
Section 4.4. Full Disclosure. The financial statements referred to in
Section 4.3 do not, nor does any written statement furnished by or on behalf of
the Company to any Bank in connection with the negotiation of this Agreement,
contain any untrue statement of a material fact or omit a material fact
necessary to make the material statements contained therein or herein, in light
of the circumstances under which they were made, not misleading except for such
thereof as were corrected in subsequent written statements furnished the Banks,
the Banks acknowledging that as to any projections furnished to any Bank the
Company only represents that the same were prepared on the basis of information
and estimates the Company believes to be reasonable.
Section 4.5. Pending Litigation. Excluding issues and matters relating
to taxes, which are specifically referred to in Section 4.10 hereof, and
excluding any other proceedings or disputes reflected in the Company's filings
with the Securities and Exchange Commission ("SEC") on Form 10-K for the year
ended December 31, 1996 or on Form 10-Q for the quarter ended June 30, 1997 (the
"Exchange Act Reports") or reflected on Schedule III hereto, as of the date
hereof, there are no proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Restricted Subsidiary in any
court or before any governmental authority or arbitration board or tribunal in
which, either individually or in the aggregate, there is a reasonable
possibility of an adverse decision which could result in a Material Adverse
Effect or could result in the Company's obligations under any of the Loan
Documents being declared invalid. Neither the Company nor any Restricted
Subsidiary is in default with respect to any material order of any court or
governmental authority or arbitration board or tribunal.
Section 4.6. Title to Properties. The Company and each Restricted
Subsidiary has good and marketable title in fee simple (or its equivalent under
applicable law) to all the real property and has good title to all the other
Property it purports to own, reflected in the most recent balance sheet referred
to in Section 4.3, except as sold or otherwise disposed of in the ordinary
course of business and sales of non-strategic assets, subject only to Liens
permitted by Section 6.11 hereof. The Company and each Restricted Subsidiary
owns or possesses all patents, trademarks, trade names, service marks,
copyrights, licenses, franchises and rights necessary in any respect material to
the Company and its Restricted Subsidiaries taken as a whole for the present and
presently planned future conduct of their respective business and, as of the
date hereof, there are no proceedings pending or, to the knowledge of the
Company, threatened against the Company or any Restricted Subsidiary in respect
thereof in which there is a reasonable possibility of an adverse decision which
would result in a Material Adverse Effect.
Section 4.7. Financing is Legal and Authorized. The execution and
delivery of the Loan Documents, Borrowings hereunder and compliance by the
Company with all of the provisions of the Loan Documents are within the
corporate powers of the Company and have been duly authorized by proper
corporate action on the part of the Company and will not violate any provisions
of any applicable law or order of any court or governmental authority or agency
of competent jurisdiction and will not conflict with or result in any breach of
any of the terms, conditions or provisions of, or constitute a default under,
the Restated Certificate of Incorporation or by-laws of the Company or
constitute a material conflict with or breach or default under any material
indenture or other material agreement or instrument to which the Company or any
Restricted Subsidiary is a party or by which any of them may
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<PAGE> 22
be bound or result in the imposition of any Liens on any Property of the Company
or of any Restricted Subsidiary not permitted hereby.
Section 4.8. No Defaults. No Default or Event of Default has occurred
and is continuing, and the Company and its Restricted Subsidiaries are not in
material breach of any contract or agreement where such breach may have a
Material Adverse Effect.
Section 4.9. Governmental Consent. No approval, authorization, consent
or withholding of objection on the part of any regulatory body, state, federal
or local, is necessary in connection with the execution and delivery by the
Company of the Loan Documents or compliance by the Company with any of the
provisions thereof.
Section 4.10. Taxes. All tax returns required to be filed by the
Company or any Consolidated Subsidiary in any jurisdiction have, in fact, been
filed, and all taxes, assessments, fees and other governmental charges upon the
Company or any Consolidated Subsidiary or upon any of their respective
properties, income or franchises, which are shown to be due and payable in such
filed returns have been paid. The only dispute with respect to the
consolidation of the tax returns of the Company and its Subsidiaries with those
of AMAX Inc. is a dispute concerning the inclusion of the Company and its
Subsidiaries in the consolidated returns of AMAX Inc. for 1984, 1985 and 1986,
which dispute is described in the Company's Exchange Act Reports. Such tax
dispute was decided adversely to the Company by the United States Tax Court in
a decision dated September 30, 1997. As of the date hereof, it is the Company's
intention to pay the deficiency to prevent the accrual of additional interest
and to appeal the decision. There are no other material controversies known to
the Company with respect to other federal or state income tax matters of the
Company and its Subsidiaries in which there is a reasonable possibility of an
adverse decision which would result in a Material Adverse Effect. The
provisions for taxes on the books of the Company and each Subsidiary are
adequate in all material respects for all open years, and for its current
fiscal year.
Section 4. 11. Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.12. Use of Proceeds. None of the proceeds of the Loans will
be used, directly or indirectly, by the Company or any Subsidiary for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any "margin stock", within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System. The Company is not engaged principally, or as one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying any such margin stock within the meaning of such
Regulation U.
Section 4.13. ERISA. Each Plan, and, to the knowledge of the Company,
each Multiemployer Plan, is in material compliance in all respects with, and has
been administered in all respects in compliance with, the applicable provisions
of ERISA, the Code and any other Federal or State law except where failure to be
so in compliance or to be so administered should not result in a Material
Adverse Effect.
Section 4.14. Compliance with Environmental and Other Laws. (a) Neither
the Company nor any of its Restricted Subsidiaries is (i) in material default as
of the date hereof with respect to any order, writ, injunction or decree of any
court or (ii) in default as of the date hereof in any material respect under any
law, ordinance, order, regulation, license or demand (including ERISA, the
Occupational Safety and Health Act of 1970 and laws and regulations establishing
quality criteria and standards for air, water, land and toxic waste) of any
federal, state, municipal or other governmental agency, default with respect to
or under which would have a Material Adverse Effect.
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(b) As of the date hereof, the Company is in compliance with all
applicable state and federal environmental, health and safety statutes and
regulations, including, without limitation, regulations promulgated under the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. ss.ss.6901 et seq.,
except where failure to be in compliance would not have a Material Adverse
Effect. After giving effect to applicable reserves on the books of the Company
and its Restricted Subsidiaries for environmental remediation and related costs
and based on current information available to the Company with respect to the
cost of remediation, the nature and extent of the Company's involvement in sites
which are currently known to require remediation and the anticipated
contributions of other potentially responsible parties as well as applicable
insurance, the Company believes that the anticipated and estimable liabilities
of the Company and its Restricted Subsidiaries resulting from environmental
matters and required expenditures for remediation programs it may be required to
undertake will not have a Material Adverse Effect.
SECTION 5. CONDITIONS TO EACH EXTENSION OF CREDIT.
Section 5.1. Conditions to Each Extension of Credit; As of the time of
the making of each Loan and the issuance, amendment or extension of
each Letter of Credit hereunder (including the initial Loan or Letter
of Credit)
(a) The Administrative Agent shall have received the
appropriate notice required by this Agreement;
(b) Each of the representations and warranties set forth in
Section 4 hereof shall be and remain true and correct as of said time,
except to the extent any of same relates solely to an earlier date and
that the representations and warranties made in Section 4.1 and in
Section 4.3 shall be deemed to refer to the most recent form of
Schedule II and the most recent quarterly or annual report,
respectively, furnished to the Banks pursuant to Section 6.6 hereof;
and
(c) No Default (other than a Default under clause (f) of
Section 7.1 hereof which has not ripened into an Event of Default and
which will be cured upon the application of the proceeds of the
Borrowing in question) or Event of Default shall have occurred and be
continuing or will occur as a result of making such Loan or issuance,
amendment or extension of a Letter of Credit;
Section 5.2. Notice Deemed to be Warranty. The notice of the Company
requesting that such Loan be made or Letter of Credit issued, amended
or extended (including any notice deemed given by the Company under
this Agreement) shall be and constitute a warranty as to the matters
specified in subsections (b) and (c) of Section 5.1 hereof. In
addition, in the case of Letters of Credit, the Agent shall have
received a duly completed Application therefor and, in the case of an
extension or increase in the amount of a Letter of Credit, a written
request therefor, in a form acceptable to the Agent.
SECTION 6. COMPANY COVENANTS.
The Company agrees that, so long as any Loan, Letter of Credit, Letter
of Credit Reimbursement Obligation or Commitment is outstanding hereunder,
except to the extent compliance in any case or cases is waived in writing by the
Required Banks:
Section 6.1. Corporate Existence, Etc. The Company will preserve and
keep in force and effect, and will cause each Restricted Subsidiary to preserve
and keep in force and effect, its corporate existence and all material
franchises, licenses and permits necessary to the proper conduct of its business
provided,
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however, that neither the Company nor any Restricted Subsidiary shall be
required to preserve any such franchise, license or permit or, in the case of
any Restricted Subsidiary, its corporate existence, if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole.
Section 6.2. Insurance. The Company will maintain, and will cause each
Restricted Subsidiary to maintain, insurance coverage from financially sound and
reputable insurers (which may be affiliates of the Company) in such forms and
amounts, with such deductibles and against such risks, as is, taken as a whole,
generally consistent with those maintained by manufacturing companies with
similar revenues and asset values, with due regard to the nature of their assets
and business, their loss experience, and conditions in the insurance markets.
Section 6.3. Taxes, Claims for Labor and Materials, Compliance with
Laws. (a) The Company will promptly pay and discharge, and will cause each
Restricted Subsidiary promptly to pay and discharge, all lawful taxes,
assessments and governmental charges or levies imposed upon it or upon or in
respect of all or any part of its property or business and all claims for work,
labor or materials which, if unpaid, might become a Lien or charge upon any of
its Property material to the Company and its Restricted Subsidiaries taken as a
whole unless permitted by Section 6.11 hereof; provided the Company or such
Restricted Subsidiary shall not be required to pay any such tax, assessment,
charge, levy, account payable or claim if (i) the validity, applicability or
amount thereof is being contested in good faith by appropriate actions or
proceedings which will prevent the forfeiture or sale of any Property of the
Company or such Restricted Subsidiary or any material interference with the use
thereof by the Company or such Restricted Subsidiary, and (ii) the Company or
such Restricted Subsidiary shall set aside on its books reserves deemed by the
Company in its reasonable business judgment to be adequate with respect thereto
or such greater amount as may be required by GAAP.
(b) The Company will comply, and will cause each Restricted Subsidiary
to comply, with all laws, ordinances or governmental rules and regulations to
which it is subject, including without limitation, the Occupational Safety and
Health Act of 1970, as amended, ERISA and all laws, ordinances, governmental
rules and regulations relating to environmental protection in all applicable
jurisdictions, the violation of which would have a Material Adverse Effect.
Section 6.4. Maintenance of Properties and Business. The Company will
maintain, preserve and keep, and will cause each Restricted Subsidiary to
maintain, preserve and keep, its material properties which are necessary in any
respect material to the Company and its Restricted Subsidiaries taken as a whole
for the conduct of its business (whether owned in fee or a leasehold interest)
in good repair and working order (ordinary wear and tear excepted) and from time
to time will make all necessary repairs, replacements, renewals and additions so
that at all times the efficiency thereof shall be maintained provided, however,
that nothing in this Section 6.4 shall prevent the Company or any Restricted
Subsidiary from discontinuing the operation and maintenance of any of its
Properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of the business of the Company or such Restricted Subsidiary, as
the case may be.
Section 6.5. Nature of Business. Neither the Company nor any Restricted
Subsidiary will engage in any business or activity if, as a result, the general
nature of the business, taken on a consolidated basis, which would then be
engaged in by the Company and its Restricted Subsidiaries would be substantially
changed from the general nature of the business engaged in by the Company and
its Subsidiaries on the date of this Agreement.
Section 6.6. Reports and Rights of Inspection. The Company will keep,
and will cause each Subsidiary to keep, proper books of record and account in
which full and correct entries will be made of all dealings or transactions of
or in relation to the business and affairs of the Company or such Subsidiary
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in accordance with GAAP and will furnish to the Administrative Agent with
sufficient copies for each Bank:
(a) Quarterly Statements. As soon as available and in any
event within 90 days after the end of each quarterly fiscal period
(except the last) of each fiscal year, copies of consolidated balance
sheets as of the close of such quarterly period, and consolidated
statements of income and changes in financial position (or cash flow)
for such quarterly period and for the portion of the fiscal year then
ended, in each case setting forth in comparative form the figures for
the corresponding period of the preceding fiscal year, as set forth in
the Company's Form 10-Q report filed with the SEC and certified as
presenting fairly the consolidated financial condition of the Company
and its Consolidated Subsidiaries as of the end of such period and the
results of their operations for such period, subject to changes
resulting from year-end adjustments (which the certificate shall
indicate are not expected to be material or, if expected to be
material, the nature and scope thereof shall be specified) and to
footnote disclosures, by the chief financial officer or chief
accounting officer of the Company;
(b) Annual Statements. As soon as available and in any event
within 120 days after the close of each fiscal year of the Company,
copies of consolidated and consolidating balance sheets as of the close
of such fiscal year and consolidated statements of income, retained
earnings and changes in financial position (or cash flow) for such
fiscal year, and accompanied in the case of said consolidated
statements, by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of the
Company and its Consolidated Subsidiaries as at the end of, and for,
such fiscal year in accordance with GAAP, and a certificate of such
accountants stating that, in making the examination necessary for their
opinion, they obtained no knowledge, except as specifically stated, of
any Default.
(c) SEC and Other Reports. Promptly upon their becoming
available, one copy of each financial statement, report, notice or
proxy statement sent by the Company to its stockholders generally, and
of each regular or periodic report, and any registration statement or
prospectus filed by the Company or any Subsidiary with the SEC or any
successor agency;
(d) Officers' Certificates. Within the periods provided in
paragraphs (a) and (b) above, a certificate of an authorized financial
officer of the Company stating that such officer has reviewed the
provisions of this Agreement and setting forth: (i) the information and
computations (in sufficient detail) required in order to establish
whether the Company was in compliance with the requirements of Sections
6.7, 6.8, 6.9 and 6.10 hereof at the end of the period covered by the
financial statements then being furnished, and (ii) to the best of such
officer's knowledge, whether there exists on the date of the
certificate or existed at any time during the period covered by such
financial statement any Default or Event of Default and, if any such
condition or event exists on the date of the certificate or existed
during such period, specifying the nature and period of existence
thereof and the action the Company is taking, has taken or proposes to
take with respect thereto; and
(e) Notices of Default and Rating Change. Promptly after
knowledge thereof shall have come to the attention of the chief
financial officer of the Company, notice of any Default or Event of
Default hereunder and of any change in the S&P Rating.
Without limiting the foregoing, the Company will permit each Bank (or such
Persons as any Bank may designate), upon reasonable notice, to visit and
inspect, under the Company's guidance, books of account, records, reports and
other papers of the Company, to make copies and extracts therefrom (except with
respect to confidential or proprietary information), and to discuss the
Company's affairs, finances and
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accounts with its officers and employees, all at such reasonable times and as
often as may be reasonably requested, provided that the Company may establish
reasonable procedures for joint visits and inspections if more than one Bank
requests the right to visit and inspect.
All information which is furnished to or obtained by any Bank pursuant to this
Agreement shall be received and held in confidence unless or until the same has
been publicly disclosed (other than by or on behalf of any Bank); provided,
however, that no Bank shall in any way be inhibited in the use of such
information in order to determine and enforce compliance with the terms and
conditions of this Agreement or take any lawful action which it deems necessary
to protect its interests herein and in the Notes, and provided, further, that
any Bank may furnish any such information in compliance with any court order or
to any regulatory body, agency, authority or commission to whose jurisdiction
such Bank may be subject, to its independent accountants, to any Person to whom
such holder owes any duty of disclosure, to any affiliate of such Bank which
needs to know such information in connection with approving or evaluating such
Bank's participation in this Agreement or monitoring compliance herewith and to
any Person to whom such holder is considering selling a participation herein or
in any Note or assigning its interest hereunder; provided, however, in making
any such use, such Bank shall take all reasonable measures to preserve the
confidentiality of any such information including, without limitation, obtaining
a written undertaking of any Person to whom such information may be furnished to
maintain the confidentiality thereof in accordance with this Agreement and shall
furnish copies of such undertaking to the Company.
Section 6.7. Net Worth. The Company shall at all times maintain
Tangible Net Worth of not less than $900,000,000.
Section 6.8. Leverage Ratio. The Company will not permit the ratio of
Restricted Tangible Net Assets to Restricted Funded Debt to be less than 2.0 to
1 at any time.
Section 6.9. Sale Leasebacks. The Company will not, nor will it permit
any of its Restricted Subsidiaries to, enter into any sale and leaseback
transaction covering any fixed or capital Property, except for sale and
leaseback transactions which either (a) collectively cover Property the
aggregate fair market value of which, as determined for each item of Property as
at the time such Property became the subject of such a transaction, does not
exceed 5% of Tangible Net Worth, as determined on the date of the most recent
such transaction or (b) relate solely to Property acquired after the date hereof
and are entered into within 180 days after any such acquisition; provided that
in no event shall the aggregate fair market value of all such Property referred
to in the foregoing clauses (a) and (b), as determined for each item of Property
as at the time such Property became the subject of such a transaction, exclusive
of operating or "true" leases, exceed 20% of Tangible Net Worth, as determined
on the date of the most recent such transaction.
Section 6.10. Indebtedness. The Company will not permit any of its
Subsidiaries to create, incur or suffer to exist any Indebtedness other than:
(a) Indebtedness outstanding on the date hereof and either
listed on Schedule I hereto or being in an amount of $5,000,000 or less
in each instance and not greater than $10,000,000 in the aggregate
(exclusive of indebtedness listed on Schedule I) and any extension,
renewal or replacement thereof that does not increase the aggregate
principal amount of the Indebtedness (including, for purposes of this
paragraph (a), unfunded commitments) so extended, renewed or replaced;
(b) Indebtedness to the Company or to other Subsidiaries of
the Company;
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(c) Indebtedness of any Unrestricted Subsidiary in respect of
which neither the Company nor any other Restricted Subsidiary is
directly or contingently liable, by Guarantee or otherwise;
(d) Indebtedness secured by the Liens referred to in
paragraphs (g) and (h) of Section 6.11 hereof, and any extension,
renewal or replacement thereof which does not increase the indebtedness
thereby secured or extend the Liens to other property; and
(e) Indebtedness for working capital, trade financing and cash
management activities, provided that the aggregate outstanding
principal amount thereof plus the aggregate amount of obligations not
constituting Indebtedness secured by Liens permitted by Section 6.11(i)
hereof shall not represent more than 15% of Tangible Net Worth at the
time of incurrence of each such obligation or item of Indebtedness.
Section 6.11. Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, create or incur, or suffer to be incurred
or to exist, any Lien of any kind on its or their Property, whether now owned or
hereafter acquired, or upon any income or profits therefrom, or transfer any
Property for the purpose of subjecting the same to the payment of obligations in
priority to the payment of its or their general creditors, or acquire or agree
to acquire, or permit any Restricted Subsidiary to acquire or agree to acquire,
any Property or assets upon conditional sales agreements or other title
retention devices, except:
(a) Liens in existence on the date hereof and listed in
Schedule I hereto;
(b) Liens imposed by any governmental authority or
instrumentality to secure the performance of conditions to governmental
grants or advances which are not repayable absent a failure to satisfy
such conditions or for taxes, assessments or charges which are not in
any instance yet due or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or the affected Restricted
Subsidiaries, as the case may be, in accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days after
the Company is notified of same or which are being contested in good
faith and by appropriate proceedings and Liens securing judgments but
only to the extent for an amount and for a period not resulting in an
Event of Default under Section 7.1(e) hereof;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the business
of the Company or any of its Restricted Subsidiaries;
(g) Liens on Property of any corporation which becomes a
Restricted Subsidiary of the Company after the date of this Agreement,
provided that such Liens are in existence at the time
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such corporation becomes a Restricted Subsidiary of the Company and
were not created in anticipation thereof;
(h) Liens upon real and/or tangible personal Property acquired
after the date hereof (by purchase, construction or otherwise) by the
Company or any of its Restricted Subsidiaries, each of which Liens
either (A) existed on such Property before the time of its acquisition
and was not created in anticipation thereof, or (B) was created solely
for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that no such Lien shall extend
to or cover any Property of the Company or such Restricted Subsidiary
other than the Property so acquired and improvements thereon; and
provided, further, that the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 80% of the fair market value (as
determined in good faith by a responsible officer of the Company) of
such Property at the time it was acquired (by purchase, construction or
otherwise);
(i) additional Liens upon real and/or personal Property
created after the date hereof; provided that the aggregate amount of
obligations secured thereby shall not represent more than 15% of
Tangible Net Worth as of the date each such obligation is incurred; and
(j) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
Section 6.12. Prohibition of Fundamental Changes. The Company will not
merge, consolidate or amalgamate with any Person unless the Company is the
surviving corporation and immediately after giving effect to that transaction
there is no Default hereunder, or liquidate, wind up or dissolve (or suffer any
liquidation or dissolution). The Company will not permit any Restricted
Subsidiary to merge, consolidate or amalgamate with any other Person unless (i)
immediately after giving effect thereto there is no Default hereunder, (ii) if
the transaction is between a Restricted Subsidiary and an Unrestricted
Subsidiary, the conditions to designating the Subsidiary which will not survive
into a Subsidiary of the other type (as set forth in the definition of the term
"Restricted Subsidiary") could be satisfied immediately prior to the transaction
in question and (iii) if the survivor of the transaction will not be a
Subsidiary, the Company or immediate parent of the Restricted Subsidiary will
receive consideration in connection with such transaction which would satisfy
the requirements of the immediately following sentence had the Restricted
Subsidiary in question been sold. The Company will not, nor will it permit any
of its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any part of
its business or Property, whether now owned or hereafter acquired (including,
without limitation, receivables and leasehold interests) except for fair market
value in exchange for reasonable consideration (as determined by the Board of
Directors of the Company in any transaction, or series of related transactions,
involving consideration exceeding $10,000,000 in cash or Property).
SECTION 7. EVENTS OF DEFAULT AND REMEDIES.
Section 7.1. Events of Default. Any one or more of the following shall
constitute an Event of Default:
(a) Default in the payment when due of any principal amount of
any Note or any Loan evidenced thereby or of any Reimbursement
Obligation, or default in the payment of any interest or any other
amount payable by the Company under the Loan Documents which is not
remedied within five Business Days after the date on which notice of
such default was first given to the Company; or
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(b) Default shall occur in the observance or performance of
any other provision of this Agreement or any other Loan Documents which
is not remedied within 30 days after the date on which notice of such
default is first given to the Company by the Administrative Agent
(which agrees to provide such notice at the request of any Bank); or
(c) Any representation or warranty made by the Company herein,
or in any statement or certificate furnished by the Company pursuant
hereto, is untrue in any material respect as of the date of the
issuance or making (or deemed issuance or making) thereof; or
(d) Default shall be made in the payment of the principal of
or interest on any Indebtedness of the Company (other than Indebtedness
hereunder) or any Restricted Subsidiary in either case aggregating more
than $20,000,000, as and when the same shall become due and payable by
the lapse of time, by declaration, by call for redemption, by
acceleration or otherwise, and such default shall continue beyond any
period of grace or notice, if any, allowed with respect thereto; or
(e) Any event specified in any note, agreement, indenture or
other document evidencing or relating to Indebtedness of the Company or
any Restricted Subsidiary shall occur if the effect of such event is to
cause, or (with the giving of any notice) to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, $50,000,000 or more of such Indebtedness
to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity
and any applicable period of grace or notice has lapsed with respect to
such default; provided that no such event shall constitute an Event of
Default hereunder if and so long as the Company or the indebted
Restricted Subsidiary (as applicable) shall be contesting in good faith
whether such event has occurred and the Company and its Restricted
Subsidiaries make no payments or concessions (whether in the form of
collateral, increased interest or fees, more rapid amortization, more
restrictive terms or otherwise) in consideration of a resolution of
such contest; or
(f) Final judgment or judgments for the payment of money
aggregating in excess of $10,000,000 is or are outstanding against the
Company or any Restricted Subsidiary or against any Property of either
and any one of such judgments has remained unpaid, unvacated, unbonded
or unstayed by appeal or otherwise for a period of 90 days from the
date of its entry; or
(g) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended or any successor regulation) of more than 50%
of the voting stock of the Company; or during any period of 13
consecutive calendar months (or, if shorter, the maximum period which
would incorporate only one regularly scheduled annual meeting of the
Company), a majority of the Board of Directors of the Company shall no
longer be composed of individuals (i) who were members of said Board on
the first day of such period, (ii) whose election or nomination to said
Board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of said Board or (iii) whose election or nomination to said
Board was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least
a majority of said Board; or
(h) A custodian, receiver, liquidator or trustee of the
Company or any Restricted Subsidiary, or of any of the Property of
either, is appointed or takes possession and such appointment or
possession remains uncontested or in effect for more than 60 days; or
the Company or any Restricted Subsidiary generally fails to pay its
debts as they become due or admits in writing its inability to pay its
debts as they mature; or the Company or any Restricted Subsidiary is
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adjudicated bankrupt or insolvent; or any of the material property of
either is sequestered by court order and the order remains in effect
for more than 60 days; or a petition is filed against the Company or
any Restricted Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or subsequently in
effect, and is not stayed or dismissed within 60 days after filing; or
(i) The Company or any Restricted Subsidiary makes an
assignment for the benefit of creditors or files a petition in
voluntary bankruptcy or seeking relief under any provision of any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction, whether now
or subsequently in effect; or consents to the filing of any petition
against it under any such law; or consents to the appointment of or
taking possession by a custodian, receiver, trustee or liquidator of
the Company, any Restricted Subsidiary, or any of the property of
either.
Section 7.2. Non Bankruptcy Defaults. When any Event of Default, other
than an Event of Default described in subsection (h) or (i) of Section 7.1
hereof, has occurred and is continuing, the Administrative Agent, if so directed
by the Required Banks shall, by notice to the Company, take either or both of
the following actions: (i) terminate the Commitments of the Banks hereunder on
the date (which may be the date thereof) stated in such notice, and (ii) declare
the principal of and the accrued interest on the Notes then outstanding to be
forthwith due and payable and thereupon said Notes, including both principal and
interest, shall be and become immediately due and payable together with all
other amounts payable under this Agreement accrued through the date of such
termination or declaration without further demand, presentment, protest or
notice of any kind.
Section 7.3. Bankruptcy Defaults. When any Event of Default described
in subsections (h) or (i) of Section 7.1 hereof has occurred and is continuing,
then the principal of and accrued interest on all Notes then outstanding shall
immediately become due and payable together with all other amounts payable under
this Agreement, subject to payment in accordance with applicable law, without
presentment, demand, protest or notice of any kind, and the obligation of the
Banks to extend further credit pursuant to any of the terms of this Agreement
shall immediately terminate.
Section 7.4. The Letters of Credit. When any Event of Default, other
than an Event of Default described in subsections (h) or (i) of Section 7.1, has
occurred and is continuing, the Company shall, upon demand of the Agent or the
Required Banks, and when any Event of Default described in subsections (h) or
(i) of Section 7.1 has occurred the Company shall, without notice or demand from
the Agent or the Required Banks, to the extent permitted by applicable law,
immediately deposit with the Agent the full amount of each Letter of Credit,
each deposit to be invested in such interest bearing deposit accounts of the
Agent or high-grade debt securities as the Company and the Agent shall agree
(all such deposit to be and constitute collateral security for the Company's
obligations in respect of the Letters of Credit) the Company agreeing to
immediately make each such deposit and acknowledging and agreeing that the Agent
would not have an adequate remedy at law for failure of the Company to honor any
such demand and that the Agent shall have the right to require the Company to
specifically perform such undertaking whether or not any draws had been made
under the Letters of Credit.
SECTION 8. DEFINITIONS; INTERPRETATION OF AGREEMENT.
Section 8.1. Definitions. The following terms when used herein shall
have the following meanings, such terms to be equally applicable to both the
singular and the plural of the terms defined:
"Administrative Agent" shall mean Canadian Imperial Bank of Commerce
and its successors as administrative agent hereunder.
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"Agent" means Royal Bank of Canada in its role as agent, issuer of the
Letters of Credit hereunder and as arranger.
"Agents" shall mean the Agent and the Administrative Agent.
"Applicable Eurodollar Margin" has the meaning specified in Section
2.2 hereof.
"Applications" has the meaning specified in Section 1.3(b) hereof.
"Assignment Agreements" has the meanings specified in Section 10.11
hereof.
"Authorized Representative" shall mean the chief financial officer or
such other Persons as such officer may from time to time designate in a writing
to the Administrative Agent and its successors.
"Bid Loan" has the meaning specified in Section 1.4 hereof.
"Bid Note" has the meaning specified in Section 1.10 hereof.
"Borrowing" shall mean the total of Loans of a single type made on a
single date and, if such Loans are Fixed Rate Loans, for a single Interest
Period. The term "Committed Borrowing" shall mean a Borrowing made pursuant to
the provisions of Sections 1.1 through 1.3 hereof and the term "Bid Borrowing"
shall mean a Borrowing made pursuant to Sections 1.4 through 1.9 hereof.
"Borrowing Date" has the meaning specified in Section 1.5(a) hereof.
"Business Day" shall mean any day other than a Saturday or Sunday on
which banks are generally open for business in New York, New York and, when used
with reference to Eurodollar Loans, a day on which banks are also open for
business and dealing in United States Dollar deposits in London, England.
"Capital Lease Obligations" shall mean, for any Person, all obligations
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP (including Statement of Financial Accounting Standards No. 13
of the Financial Accounting Standards Board), and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP (including such Statement No. 13).
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" has the meaning specified in Section 1.1 hereof.
"Committed Fixed Rate Loans" shall mean Fixed Rate Loans made pursuant
to Section 1.1 hereof.
"Committed Loan" has the meaning specified in Section 1.1 hereof.
"Committed Note" has the meaning specified in Section 1.10 hereof.
"Consolidated Subsidiary" shall mean, for any Person, each Subsidiary
of such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
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"Default" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"Designated Lender" shall mean a special purpose corporation that (i)
is identified as such on the signature pages hereto next to the caption
"Designated Lender" or (ii) shall have become a party to this Agreement pursuant
to Section 10.12 hereof.
"Designating Lender" shall mean each Bank that is identified as such on
the signature pages hereto next to the caption "Designating Lender" and
immediately below the signature of its Designated Lender as well as each Bank
that shall designate a Designated Lender pursuant to Section 10.12 hereof.
"Designation Agreement" shall mean a designation agreement in
substantially the form of Exhibit I attached hereto, entered into by a Bank and
a Designated Lender and accepted by the Company and the Administrative Agent.
"Domestic Rate Loan" shall mean a Loan bearing interest as specified in
Section 2.1 hereof.
"ERISA " shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERlSA Affiliate" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Company is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the Company
is a member.
"Eurodollar Bid Loans" has the meaning specified in Section 1.4 hereof.
"Eurodollar Loan" shall mean a Loan bearing interest as specified in
Section 2.2 hereof and "Committed Eurodollar Loan" shall mean a Eurodollar Loan
made pursuant to the provisions of Sections 1.1 and 1.2 hereof and "Eurodollar
Bid Loan" shall mean a Eurodollar Loan made pursuant to the provisions of
Section 1.4. "Eurodollar Loans" shall include both Committed Eurodollar Loans
and Eurodollar Bid Loans unless the context otherwise requires.
"Eurodollar Reserve Percentage" means, for any day during an Interest
Period for a Borrowing of Eurodollar Loans, the rate at which reserves
(including, without limitation, any supplemental, marginal and emergency
reserves) are imposed on such day by the Board of Governors of the Federal
Reserve System (or any successor) on "Eurocurrency liabilities", as defined in
such Board's Regulation D, (or in respect of any other category of liabilities
that includes deposits by reference to which the interest rate on Eurodollar
Loans is determined on any category of extension of credit or other assets that
include loans by non-United States offices of any Bank to United States
residents) subject to any amendments of such reserve requirement by such Board
or its successor, taking into account any transitional adjustments thereto. For
purposes of this definition, the Eurodollar Loans shall be deemed to be
Eurocurrency liabilities as defined in Regulation D without benefit or credit
for any prorations, exemptions or offsets under Regulation D.
"Event of Default" shall mean any of the events specified in Section
7.1 hereof.
"Exchange Act Reports" has the meaning specified in Section 4.5 hereof.
"Fed Funds Rate" shall mean the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Domestic Rate in
Section 2.1 hereof.
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"Financial Letter of Credit" shall mean a Letter of Credit providing
for the financial Guarantee of the payment or repayment of irrevocable
obligations, including, without limitation, commercial paper, tax-exempt
securities, commercial or individual loans or debt obligations and other letters
of credit.
"Fixed Rate Loans" shall mean all Loans other than Domestic Rate Loans.
"Funded Debt" shall mean, on any date and for any Person, without
duplication, (i) all Indebtedness of such Person for money borrowed (including
Capital Lease Obligations), whether issued, assumed or Guaranteed, which has a
final maturity (or which, pursuant to its terms, is renewable or extendible at
the option of such Person, without regard to whether such option is subject to
specified conditions, for a period ending or to a date) more than 12 months
after such date, notwithstanding the fact that payments in respect thereof
(whether installment, serial maturity or sinking fund payments or otherwise) are
required to be made by such Person, less than 12 months after the date of the
computation thereof, (ii) Guarantees by such Person of Funded Debt of other
Persons or of dividends and (iii) in the case of any Restricted Subsidiary, all
preferred stock of such Restricted Subsidiary. Notwithstanding the foregoing,
the term "Funded Debt" shall not include deferred revenue accounts arising from
forward sales.
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those which, in accordance with the last sentence of
Section 8.2(a) hereof, are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person or an agreement to purchase, sell or lease (as
lessee or lessor) Property or services primarily for the purpose of enabling a
debtor to make payment of such debtor's obligations or an agreement to assure a
creditor against loss, and including, without limitation, causing a bank or
other financial institution to issue a letter of credit or other similar
instrument for the benefit of another Person, but excluding endorsements for
collection or deposit in the ordinary course of business. The terms "Guarantee"
and "Guaranteed" used as a verb shall have a correlative meaning.
"Indebtedness" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods or services
are delivered or rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective Indebtedness so secured
has been assumed by such Person; (d) obligations of such Person in respect of
letters of credit or similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease Obligations
of such Person; and (f) Indebtedness of others Guaranteed by such Person.
Notwithstanding the foregoing, the term "Indebtedness" shall not include swap or
other agreements not constituting Indebtedness for borrowed money, entered into
to hedge against fluctuations in the prices of commodities and currencies,
deferred revenue accounts arising from forward sales or guarantees of either
thereof.
"Interest Period" shall mean the period commencing on the date a
Borrowing of Loans is made and ending on the date, as the Company may select,
(a) in the case of Bid Loans 1-180 days thereafter or (b) in the case of
Eurodollar Loans, 1, 2, 3, or 6 months thereafter provided, however, that:
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1. no Interest Period may extend beyond the Termination Date;
and
2. whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
provided, that, in the case of an Interest Period for a Borrowing of
Eurodollar Loans, if such extension would cause the last day of such
Interest Period to occur in the following calendar month, the last day
of such Interest Period shall be the immediately preceding Business
Day.
For purposes of determining an Interest Period, a month means a period
starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, provided, however, if an Interest
Period begins on the last day of a month or if there is no numerically
corresponding day in the month in which an Interest Period is to end, then such
Interest Period shall end on the last Business Day of such month.
Notwithstanding the foregoing, the Company may request Interest Periods which
differ from those set forth above, but the availability of such differing
Interest Periods to the Company shall be subject to a determination by each Bank
that dollar deposits of the duration requested are readily available to it in
the offshore interbank market.
"L/C Commitment" shall mean $50,000,000.
"L/C Documents" shall mean the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the Applications and
this Agreement.
"L/C Obligations" shall mean the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"Lending Office" has the meaning specified in Section 2.9 hereof.
"Letters of Credit" shall mean all letters of credit issued pursuant to
Section 1.3 hereof and includes Financial Letters of Credit and Performance
Letters of Credit.
"Level I Status" means the S&P Rating is A- or greater.
"Level II Status" means the S&P Rating is BBB+.
"Level III Status" means the S&P Rating is BBB.
"Level IV Status" means the S&P Rating is BBB-.
"Level V Status" means the S&P Rating is BB+ or lower.
"LIBOR" has the meaning specified in Section 2.2 hereof.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes hereof, a Person shall be deemed to own, subject to a
Lien, any Property that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement (other than an operating lease) relating to such
Property.
"Liquidity Bank" shall mean for any Designated Lender, at any date of
determination, the collective reference to the financial institutions which at
such date are providing liquidity or credit support facilities to or for the
account of such Designated Lender to fund such Designated Lender's
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obligations hereunder or to support the securities, if any, issued by such
Designated Lender to fund such obligations, it being understood that a
Designating Lender may be a Liquidity Bank.
"Loan" shall mean any loan made pursuant to Section 1 hereof and
"Loans" shall mean the Domestic Rate Loans, Eurodollar Loans and Stated Rate Bid
Loans.
"Loan Commitment" has the meaning specified in Section 1.1 hereof.
"Loan Documents" shall mean this Agreement, the Notes and the
Applications.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the Property, business, operations, financial condition, liabilities or
capitalization of the Company and its Subsidiaries taken as a whole, (b) the
ability of the Company to perform its obligations under any of the Loan
Documents, (c) the validity or enforceability of any of the Loan Documents (d)
the rights and remedies of the Banks, the Agent and the Administrative Agent
under any of the Loan Documents or (e) the timely payment of the principal of or
interest on the Loans or the reimbursement obligations with respect to the
Letters of Credit or other amounts payable in connection therewith. No claim,
liability or circumstance shall be deemed to have a Material Adverse Effect if
the same can be discharged by the payment of money in an amount not exceeding
$50,000,000 in excess of applicable reserves and tax benefits reasonably
anticipated in connection with such payment plus the amount the Company in good
faith reasonably believes can be recovered out of insurance or from creditworthy
third parties. The adverse ruling in the tax dispute in respect of the
consolidation of the tax returns of the Company and its Subsidiaries with those
of AMAX Inc. for 1984, 1985 and 1986, which is referred to Section 4.10 hereof
and is described in the Company's Exchange Act Reports does not, and a
subsequent adverse ruling thereon on appeal shall not, constitute a Material
Adverse Effect.
"Multiemployer Plan" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Company or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"Note" shall mean any Committed Note or Bid Note and "Notes" shall mean
all Committed Notes and Bid Notes.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Letter of Credit" shall mean any Letter of Credit which is
not a Financial Letter of Credit.
"Person" shall mean any individual, corporation, limited liability
company, voluntary association, partnership, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" shall mean an employee benefit of other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"Property" shall mean any interest of any kind in property or assets,
whether real, personal or mixed, and whether tangible or intangible.
"Reference Banks" means Canadian Imperial Bank of Commerce, Royal Bank
of Canada, The Chase Manhattan Bank and Union Bank of Switzerland. In the event
that any of such Banks ceases to be a "Bank" hereunder or fails to provide
timely quotations of interest rates to the Administrative Agent as
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and when required by this Agreement, then such Bank shall be replaced by a new
reference bank jointly designated by the Administrative Agent and the Company.
"Refunding Borrowing" has the meaning specified in Section 1.2(d)
hereof.
"Reimbursement Obligations" is defined in Section 1.3(c) hereof.
"Required Banks" shall mean Banks holding 66-2/3% or more of the
Commitments or in the event that the Commitments have terminated or expired,
those Banks holding 66-2/3% or more of the outstanding principal amount of the
Loans and the credit risk incident to the Letters of Credit.
"Restricted Funded Debt" shall mean on any date, all Funded Debt of the
Company and its Restricted Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Restricted Subsidiary" shall mean any Subsidiary of the Company which
is identified as a Restricted Subsidiary on Schedule II hereto or which, after
the date of this Agreement, is designated by the Company (by resolution of its
Board of Directors and prior notice to the Administrative Agent) to be a
Restricted Subsidiary, provided that any Restricted Subsidiary may be
redesignated by the Company (by the same procedure) as an Unrestricted
Subsidiary in accordance with the provisions of this definition. Any such
designation or redesignation may be made more than once with respect to any
Subsidiary of the Company. Notwithstanding the foregoing: (i) no Restricted
Subsidiary may be designated an Unrestricted Subsidiary unless (A) such
Subsidiary, at the time of such designation, does not own, directly or
indirectly, any capital stock of any other Restricted Subsidiary or have any
Lien upon any of the assets of any other Restricted Subsidiary and (B)
immediately prior to and after such designation no Default shall exist; and (ii)
no Unrestricted Subsidiary may be designated a Restricted Subsidiary unless (A)
at the time of such designation, such Subsidiary does not have outstanding any
obligations with respect to a sale or leaseback transaction which would have
been prohibited under Section 6.9 hereof had such Subsidiary been a Restricted
Subsidiary at the time of such transaction and (B) immediately prior to and
after such designation no Default shall exist and the representations and
warranties made by the Company in Section 4 hereof shall be true on and as of
the date of such designation with the same force and effect as if made on and as
of such date.
"Restricted Tangible Net Assets" shall mean, on any date, all Property
of the Company and its Restricted Subsidiaries (including the amount of any
investment in any Person, other than an Unrestricted Subsidiary and other than a
Person that was an Unrestricted Subsidiary at the time of the investment but is
not a Subsidiary on the date of determination, valued at the cost of the equity
interest of the Company and its Restricted Subsidiaries in such Person) which in
accordance with GAAP are classified as assets and appear on the asset side of
the consolidated balance sheet of the Company and its Restricted Subsidiaries,
less, without duplication, (i) the liabilities of the Company and its Restricted
Subsidiaries which in accordance with GAAP are classified as liabilities and
appear on the liability side of such consolidated balance sheet, excluding any
Funded Debt, capital stock and surplus, surplus reserves, provisions for
deferred income taxes and minority interests in Restricted Subsidiaries, (ii)
depreciation and valuation reserves and other reserves and items deductible in
accordance with GAAP other than contingency reserves not allocated to a
particular purpose, (iii) goodwill, trade names and trademarks, patents, patent
application, copyrights, franchises, licenses, permits, unamortized debt
discount and expense, research, development or experimental expense not properly
carried in inventory, organizations expenses and other similar intangible
assets, (iv) minority interests, if any, in Restricted Subsidiaries and (v)
treasury shares, if any, carried as an asset on such balance sheet.
"S&P Rating" shall mean at any time the rating assigned by Standard &
Poor's Corporation to the outstanding unsecured long-term senior indebtedness of
the Company. References to specific ratings are references to such ratings as
currently defined by Standard & Poor's Corporation and in the event
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Standard & Poor's Corporation changes its rating system, each reference to a
particular S&P Rating shall be deemed to be a reference to the rating under such
new or changed rating system which most closely approximates the credit quality
of the particular rating as currently defined. If for any reason an S&P Rating
is unavailable for the long-term unsecured indebtedness of the Company, and such
a rating is available from one or more other nationally recognized rating
agency, then the Administrative Agent, after consultation with the Company and
approval of the Required Banks, shall select one of such available rating
systems to be used in lieu of the S&P Rating and the Company and the Required
Banks shall then negotiate in good faith for an amendment to this agreement
substituting such new ratings for the S&P Rating. If no such substitute rating
is available or agreed to, then in that event (i) the applicable margin shall be
determined by the Administrative Agent, after consultation with the Company, so
as to approximate the Administrative Agent's estimate of what the ratings of
long-term unsecured senior indebtedness of the Company would have been had S&P
Ratings been available, the determination of the Administrative Agent to be
final and conclusive provided that it has been made in good faith, and (ii)
changes in the Applicable Eurodollar Margin shall become effective as of and on
the date of a change in the rating used to determine the same.
"Stated Rate Bid Loans" has the meaning specified in Section 1.4
hereof.
"Subsidiary" shall mean, for any Person, any corporation, partnership
or other entity of which at least a majority of the securities or other
ownership interests having by the terms thereof ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
of such corporation, partnership or other entity (irrespective of whether or not
at the time securities or other ownership interests of any other class or
classes of such corporation, partnership or other entity shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. "Wholly Owned Subsidiary" shall mean any such corporation,
partnership or other entity of which all of the equity securities or other
ownership interests (other than, in the case of a corporation, directors'
qualifying shares) are so owned or controlled.
"Tangible Net Worth" shall mean, as at any date, the sum for the
Company and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) the gross
book value of assets (excluding goodwill, patents, trademarks, tradenames,
organization expense, treasury stock, unamortized debt discount and expense,
deferred charges and other like intangibles) minus (b) the sum of the following:
(i) reserves applicable to the assets referred to in the foregoing clause (a),
and (ii) all liabilities (including accrued and deferred income taxes and
subordinated Indebtedness).
"Termination Date" shall mean October 8, 2002.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Company
other than a Restricted Subsidiary.
Section 8.2. Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Banks
hereunder shall (unless otherwise disclosed to the Banks in writing at the time
of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Banks hereunder (which, prior to the delivery of the
first financial statements under Section 6.6 hereof, shall mean the audited
financial statements as at December 31, 1996 referred to in Section 4.3 hereof).
All calculations made for the purposes of
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determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
such latest annual or quarterly financial statements unless (i) the Company
shall have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Required Banks shall so object
in writing within 30 days after delivery of such financial statements, in either
of which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 6.6 hereof, shall mean
the audited financial statements referred to in Section 4.3 hereof).
(b) The Company shall deliver to the Banks at the same time as the
delivery of any annual or quarterly financial statement under Section 6.6 hereof
(i) a description in reasonable detail of any material variation between the
application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance with
the covenants set forth in Section 6 hereof, the Company may not change the last
day of its fiscal year from December 31 of each year, or the last days of the
first three fiscal quarters in each of its fiscal years from March 31, June 30
and September 30 of each year, respectively, unless (at the first time after
such change that the Company furnishes to the Banks financial statements under
Section 6.6 hereof) the Company furnishes to the Banks financial statements for
its three full fiscal years prior to such change restated on a pro forma basis
to reflect such change.
(d) References in Sections 4.3 and 6.6 to consolidated financial
statements shall be deemed references to consolidated financial statements of
the Company and the Consolidated Subsidiaries and references to consolidating
financial statements shall be references to financial statements which are
separated by reference to the Company and the Restricted Subsidiaries on the one
hand and the Unrestricted Subsidiaries on the other hand.
SECTION 9. THE AGENT.
Section 9.1. Appointment and Duties. For the convenience of the parties
hereto, Canadian Imperial Bank of Commerce, New York Agency is appointed
Administrative Agent hereunder by and for the Banks with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto,
and by its execution hereof accepts such agency, solely for the purposes herein
set forth and as such agency is described herein. The Administrative Agent will
transmit promptly to each Bank by telex or telecopy (confirmed by telephone or
letter) each notice received by it from the Company hereunder, will advise the
Banks promptly upon receipt of all the documents listed in Section 5 and its
special counsel will provide each of the Banks with a copy of each of said
documents when they are available. The Agents shall have no authority to
enforce, nor any duty or responsibility for the enforcement of, any of the terms
hereof, except as a Bank hereunder. Neither of the Agents nor any of their
directors, officers or employees shall be liable for any action taken or omitted
to be taken by them hereunder, except for its or their own gross negligence or
willful misconduct. The Administrative Agent shall be protected in acting upon
any notice, request, certificate, letter, statement (oral or written) or other
documents believed by it in good faith to be genuine and correct and to have
been signed or sent by the proper person or persons and, in the case of legal
matters, upon the advice of counsel selected by the Administrative Agent. The
Administrative Agent may treat the Banks that are named herein as the holders of
the Notes and the indebtedness contemplated herein unless and until the
Administrative Agent receives notice of the assignment of a Note
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and indebtedness held by a Bank hereunder. As to any matters not expressly
provided for by this Agreement, the Administrative Agent shall in all cases be
fully protected in acting, or refraining from acting, hereunder in accordance
with the instructions of the Required Banks, and such instructions of the
Required Banks and any action taken or not taken pursuant thereto shall be
binding on all Banks. The Agents shall be acting as independent contractors
hereunder and nothing herein shall be deemed to impose on the Agents any
fiduciary obligations to the Banks or the Company.
Section 9.2. Sufficiency of the Agreement. The Agents take no
responsibility for the truth of any warranties or representations given or made
herein, and the Agents shall not be responsible to the Banks for the validity,
effectiveness, enforceability or sufficiency of this Agreement, the Notes, the
Applications or any other related documents.
Section 9.3. Independent Investigation. Each Bank warrants that it has
made its own independent investigations of the financial condition and affairs
of the Company in connection with the making and continuance of the Loans
hereunder and has not relied upon any memorandum or other information provided
to such Bank by either of the Agents and each Bank represents that it shall
continue throughout the duration of this Agreement to make its own independent
appraisal of the Company.
Section 9.4. Agents as Banks. The Agents shall be under the same
obligations and be entitled to the same rights and powers in their capacities as
Banks as if they were not the Agents and neither of Agents shall be obliged by
reason of its position to account to any other Bank for any sum received by it
hereunder in its capacity as a Bank or for the profit element thereof and the
Agents or any Bank may, without liability to account to the other Banks, accept
deposits from, lend money to, and generally engage in any kind of banking or
trust business with, the Company and its affiliates as if they were not the
Agents or a Bank, as the case may be.
Section 9.5. Indemnification. The Company and (to the extent not
reimbursed by the Company) each Bank (pro rata in accordance with their
respective Commitments) agrees to indemnify the Agents and each of them from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred or asserted against them (in
their capacities as such) in any way relating to or arising out of this
Agreement, provided that neither the Company nor any Bank shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements arising from the
gross negligence or willful misconduct of the party, including its officers,
directors, employees and agents, indemnified pursuant hereto.
Section 9.6. Refusal to Act. Except for action expressly required of
the Administrative Agent or Agent hereunder, the Agents shall in all cases each
be fully justified in failing or refusing to act hereunder unless it shall be
indemnified to its reasonable satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. In all cases in which this Agreement does
not require the Agents or either of them to take certain actions, the Agents
shall be fully justified in using their discretion in failing to take or in
taking any action hereunder.
Section 9.7. Successor Agents. Subject to the appointment and
acceptance of a successor as provided below, the Agents or either of them may
resign at any time by giving notice thereof to the Banks and the Company. Upon
any such resignation, the Company shall appoint from among the Banks a successor
(who must agree to such appointment) Agent or Administrative Agent (as
appropriate) for the Banks, which successor shall be approved by the Required
Banks, whereupon such resignation shall become effective and such successor
shall succeed to the rights, powers and duties of the Administrative Agent or
Agent, as the case may be, and the retiring party shall be discharged from its
duties and obligations hereunder; provided, however, that from and after the
occurrence of an Event of Default any
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such successor shall be appointed solely by the Required Banks. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provision of this Section 9 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent or Agent, as the case may be. The foregoing to the
contrary notwithstanding, if the Agent resigns, then the Agent shall retain all
rights, powers and duties with respect to Letters of Credit issued by it
hereunder prior to its resignation becoming effective.
Section 9.8. Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Bank or the Company (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Bank) the proceeds of a Loan to be
made by such Bank (provided, that such notice may be given up to 1:00 p.m. (New
York time) on the date of Borrowing in the case of Domestic Rate Loans and
Stated Rate Bid Loans), or a participation in a Letter of Credit drawing to be
acquired by such Bank, hereunder or (in the case of the Company) a payment to
the Administrative Agent for account of one or more of the Banks hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for the first three
Business Days after the Advance Date and thereafter at the rate of interest
applicable to past due Domestic Rate Loans. The Administrative Agent shall
promptly remit to the Banks payments received from the Company in like funds as
so received from the Company and in the event that the Administrative Agent
receives any payment for the account of the Company on or prior to the time when
such payment is required to be made hereunder on a given day, and fails to remit
same to the Banks entitled thereto on the date of receipt, the Administrative
Agent shall pay interest thereon to the Banks from the date of receipt to (but
excluding) the date the Administrative Agent remits such payment at a rate per
annum equal to the Federal Funds Rate.
SECTION 10. MISCELLANEOUS.
Section 10.1. Waiver of Rights. No delay or failure on the part of the
Company, any Bank or the holder or holders of any Note in the exercise of any
power or right shall operate as a waiver thereof, nor as an acquiescence in any
default, nor shall any single or partial exercise thereof, or the exercise of
any other power or right, preclude any other right or the further exercise of
any other rights, and the rights and remedies hereunder of the Company, the
Banks and of the holder or holders of any Note are cumulative to, and not
exclusive of, any rights or remedies which any of them would otherwise have.
Section 10.2. Non-Business Day. If any payment of principal or interest
on any Domestic Rate Loan shall fall due on a day which is not a Business Day,
interest at the rate such Loan bears for the period prior to maturity shall
continue to accrue on such principal from the stated due date thereof to and
including the next succeeding Business Day on which the same is payable.
Section 10.3. Documentary Taxes. The Company agrees to pay any
documentary, stamp or similar taxes payable in respect to this Agreement or any
Note, including interest and penalties, in the event any such taxes are assessed
irrespective of when such assessment is made and whether or not any credit is
then in use or available hereunder.
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Section 10.4. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and of the Notes, and shall
continue in full force and effect with respect to the date as of which they were
made as long as any credit is in use or available hereunder.
Section 10.5. Survival of Indemnities. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Fixed Rate Loans shall
survive the termination of this Agreement and the payment of the Notes.
Section 10.6. Set-off Sharing. Each Bank agrees with each other Bank a
party hereto that in the event such Bank shall receive and retain any payment,
whether by setoff or application of deposit balances or otherwise ("Set-off"),
on or in respect of any Note or Letter of Credit outstanding under this
Agreement in excess of its ratable share of payments on all Notes then
outstanding to the Banks (except for payments on or in respect of Bid Loans made
on their due dates and prior to the occurrence of an Event of Default and
reimbursements to the Agent of draws under Letters of Credit), then such Bank
shall purchase for cash at face value, but without recourse, ratably from each
of the other Banks such amount of the Notes held by each such other Bank (or
interest therein) as shall be necessary to cause such Bank to share such excess
payment ratably with all the other Banks; provided, however, that if any such
purchase is made by any Bank, and if such excess payment or part thereof is
thereafter recovered from such purchasing Bank, the related purchases from the
other Banks shall be rescinded ratably and the purchase price restored as to the
portion of such excess payment so recovered, but without interest.
Section 10.7. Notices. All communications provided for herein shall be
in writing or by telex or by telecopy, except as otherwise specifically provided
for hereinabove, addressed to the appropriate party at their respective
addresses set forth opposite their respective signatures hereto, or at such
other address as shall be designated by any party hereto in a written notice to
each other party pursuant to this Section 10.7. Any notice in writing shall be
deemed to have been given or made when served personally or when received if
sent by United States mail, and any notice given by telex or telecopy means
shall be deemed given when transmitted (answerback confirmed); provided that any
notice to the Administrative Agent or any Bank under Sections I and 2 hereof
shall only be effective upon receipt.
Section 10.8. Counterparts. This Agreement may be executed in any
number of counterparts, and by the different parties on different counterparts,
provided that the Company and Administrative Agent shall execute each
counterpart, each of which when executed shall be deemed an original, but all
such counterparts taken together shall constitute one and the same instrument.
Section 10.9. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns, and shall be binding upon and
inure to the benefit of the Banks and their respective successors and permitted
assigns, including any subsequent holder of any Note. The Company may not assign
its rights or obligations hereunder without the prior written consent of the
Banks.
Section 10.10. Participants. Each Bank shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and Reimbursement Obligations
held by such Bank at any time and from time to time to one or more other
financial institutions, provided that no such participant shall have any rights
under this Agreement or any Note (the participant's rights against the Bank
granting its participation to be those set forth in the participation agreement
between the participant and such Bank). Each such Bank shall be entitled to the
benefits of yield protection provisions hereof to the extent such Bank would
have been so entitled had no such participation been sold, but such Bank shall
not be entitled to any additional benefits as a result of, and shall indemnify
the Company against, any claim arising out of the sale of such participation.
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<PAGE> 42
Section 10.11. Assignment Agreements. Each Bank may, from time to
time, with the consent of the Company, the Administrative Agent and Agent (which
will not in any instance be unreasonably withheld), assign to other financial
institutions part of the indebtedness evidenced by the Notes then owned by it
together with an equivalent proportion of its obligation to make Loans hereunder
and the credit risk incident to the Letters of Credit pursuant to written
agreements executed by the assignor, the assignee and the Company, which
agreements shall specify in each instance the portion of the indebtedness
evidenced by the Notes which is to be assigned to each such assignor and the
portion of the Commitment of the assignor and the credit risk incident to the
Letters of Credit (which portions shall be equivalent) to be assumed by it (the
"Assignment Agreements"), provided that the Company may in its sole discretion
withhold its consent to any assignment by a Bank of less than all of its
Commitment if as a result thereof the assignor will have a Commitment hereunder
of less than $15,000,000 or the assignee will have a Commitment hereunder of
less than $10,000,000, further provided that nothing herein contained shall
restrict, or be deemed to require any consent as a condition to, or require
payment of any fee in connection with, any sale, discount or pledge by any Bank
of any Note or other obligation hereunder to a Federal Reserve Bank. Upon the
execution of each Assignment Agreement by the assignor, the assignee and the
Company (i) such assignee shall thereupon become a "Bank" for all purposes of
this Agreement with a Commitment in the amount set forth in such Assignment
Agreement and with all the rights, powers and obligations afforded a Bank
hereunder, (ii) the assignor shall have no further liability for funding the
portion of its Commitment assumed by such other Bank and (iii) the address for
notices to such Bank shall be as specified in the Assignment Agreement executed
by it. Concurrently with the execution and delivery of such Assignment
Agreement, and upon return to the Company of the outstanding Committed Note of
the Assignor, the Company shall execute and deliver a Committed Note to the
assignee Bank in the amount of its Commitment and a Bid Note to the assignee and
a new Committed Note to the assignor Bank in the amount of its Commitment after
giving effect to the reduction occasioned by such assignment, all such Notes to
constitute "Notes" for all purposes of this Agreement, and there shall be paid
to the Administrative Agent, as a condition to such assignment, an
administrative fee of $2,500 plus any out-of-pocket costs and expenses incurred
by it in effecting such assignment, such fee to be paid by the assignor or the
assignee as they may mutually agree, but under no circumstances shall any
portion of such fee be payable by or charged to the Company.
Section 10.12. Designated Lenders. Subject to the terms of this Section
10.12, any Bank may at any time designate not more than one Designated Lender to
fund Committed Loans and/or Bid Loans on behalf of such Designating Lender and
the provisions of Section 10.11 hereof shall not apply to such designation;
provided that each Designated Lender which is not a United States person (as
such term is defined in Section 701(a)(30) of the Code) shall comply with the
provisions of Section 3.9 hereof. Such designation may occur either by the
execution of the signature pages hereof by such Bank and Designated Lender next
to the appropriate "Designating Lender" and "Designated Lender" captions, or by
execution by such parties of a Designation Agreement subsequent to the date
hereof; provided, that any Bank and its Designated Lender executing the
signature pages hereof as the date hereof shall be deemed to have executed a
Designation Agreement, and shall be bound by the respective representations,
warranties and covenants contained therein, and such designation shall be
conclusively deemed to be accepted by the Company and the Administrative Agent.
The parties to each such designation occurring subsequent to the execution date
hereof shall execute and deliver to the Administrative Agent and the Company for
their acceptance a Designation Agreement. Upon receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Lender and consented to by the Company, in
its sole discretion, the Administrative Agent will accept such Designation
Agreement and will give prompt notice thereof to the Company and the other Banks
whereupon, from and after the effective date specified in the Designation
Agreement, the Designated Lender shall become a party to this Agreement as a
Designated Lender with a right to make Committed Loans and Bid Loans on behalf
of its Designating Lender.
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<PAGE> 43
No Designated Lender shall be required to make payments with respect to
any obligations and liabilities under this Agreement except to the extent of
excess cash flow of such Designated Lender which is not otherwise required to
repay obligations of such Designated Lender which are then due and payable. The
Company and each of the Banks and each of the Agents agrees that it will not
institute against any Designated Lender or join any other Person in instituting
against any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Lender.
Each Designating Lender, or a specified branch or affiliate thereof,
shall serve as the administrative agent of its Designated Lender and shall on
behalf of its Designated Lender: (i) receive any and all payments made for the
benefit of such Designated Lender (and all payments made to such Designating
Lender shall be a good receipt and acquittance as against its Designated Lender
and such Designated Lender's successors and assigns) and (ii) give and receive
all communications and notices and take all actions hereunder, including,
without limitation, votes, approvals, waivers, consents and amendments under or
relating to this Agreement. Any such notice, communication, vote, approval,
waiver, consent or amendment shall be signed by a Designating Lender, or
specified branch or affiliate thereof, as administrative agent for its
Designated Lender and need not be signed by such Designated Lender on its own
behalf. The Company, the Agents and the Banks may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same and any such
act shall be fully binding on such Designated Lender and its successors and
assigns. No Designated Lender may assign or transfer all of any portion of its
interest hereunder, other than via an assignment of all of its interest
hereunder to its Designating Lender or Liquidity Bank, if any, or otherwise in
accordance with the provisions of Section 10.11 hereof.
Anything contained in this Section 10.12 to the contrary
notwithstanding each Designating Lender (i) shall be and remain fully
responsible and liable to the Company, each of the Agents and each of the Banks
for each and every obligation and liability of such Designating Lender and its
Designated Lender arising under or with respect to this Agreement or the other
Loan Documents and (ii) shall indemnify and hold the Company, each of the Agents
and the other Banks harmless from and against any and all liabilities, losses,
costs or expenses of whatever nature suffered or incurred by any of them,
resulting directly or indirectly from its designation of a Designated Lender
hereunder or under a Designation Agreement or the fact that its Designated
Lender funded Loans hereunder. Without limiting the generality of the foregoing,
each Designating Lender shall be and remain fully liable and responsible for
insuring that all Loans to be made under its Commitment are made as and when
required by this Agreement and if its Designated Lender fails to make any such
Loan, such Designating Lender shall make such Loan and shall be and remain fully
liable to the Company and the Agents for any delays in the funding thereof. In
order to hold a Designating Lender liable for failure by a Designated Lender to
perform any liability or obligation of its Designated Lender hereunder or under
its Designation Agreement the Company, the Agents or any other party to whom
such obligation or liability is owed shall not be required to first seek
performance or payment thereof from such Designated Lender or to exhaust any
remedies which they may have against such Designated Lender, but may immediately
proceed against the Designating Lender in question.
Section 10.13. Costs and Expenses. The Company agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Administrative Agent and
Agent in connection with the negotiation, preparation, execution and delivery of
the Loan Documents and the other instruments and documents to be delivered
hereunder or thereunder or in connection with the transactions contemplated
hereby or thereby or in connection with any consents hereunder or thereunder or
waivers or amendments hereto or thereto, including the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent and Agent (which
shall be Chapman and Cutler) with respect to all of the foregoing, and all
reasonable costs and expenses (including reasonable attorneys' fees and the
reasonable allocated costs of internal legal
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services and all disbursements of internal legal counsel employed by a Bank in
lieu of external counsel for such Bank), incurred by the Administrative Agent,
the Agent, the Banks or any other holders of a Note in connection with a default
or the enforcement of the Loan Documents and the other instruments and documents
to be delivered hereunder or thereunder. The Company agrees to indemnify and
save the Banks, the Agent and the Administrative Agent harmless from any and all
liabilities, losses, costs and expenses incurred by the Banks or the
Administrative Agent in connection with any action, suit or proceeding brought
against the Administrative Agent or any Bank by any Person which arises out of
the transactions contemplated or financed hereby or by the Notes or out of any
action or inaction by the Administrative Agent or any Bank hereunder, except for
such thereof as is caused by the gross negligence or willful misconduct of the
party indemnified. The provisions of this Section 10.13 and the protective
provisions of Sections 2 and 3 hereof shall survive payment of the Notes and
other obligations hereunder.
Section 10.14. Amendments and Waivers. No provision of this Agreement
may be amended or waived except in writing signed by the Company and the
Required Banks and, if the rights or duties of the Administrative Agent or the
Agent are affected thereby, by the Administrative Agent and/or the Agent (as
appropriate); provided that no such amendment or waiver shall, unless signed by
a Bank, (i) increase or extend the Commitment of such Bank or subject such Bank
to any additional obligation, (ii) reduce the principal of or rate of interest
on any Loan from such Bank or any fees due such Bank hereunder or (iii) change
the stated time or manner of any payment of principal of or interest on any Loan
from such Bank or any fees due such Bank hereunder, and no such amendment shall,
unless signed by all Banks, change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, the shares of the risk incident
to the Letters of Credit, or the number of Banks, required for the Banks or any
of them to take any action under this Section 10.14 or any other provisions of
this Agreement.
Section 10.15. Governing Law, Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. Each party hereto hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each party hereto irrevocably
waives, to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
Section 10.16. Waiver of Jury Trial. EACH OF THE COMPANY, THE AGENTS
AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10.17. Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and any
prior agreements, whether written or oral, with respect thereto are superseded
hereby.
Section 10.18. Headings. Section headings used in this Agreement are
for reference only and shall not affect the construction of this Agreement."
ARTICLE 2. EXHIBITS.
The exhibits and schedules to the Credit Agreement shall be amended and
as so amended shall be restated in their entirety to read in accord with the
exhibits and schedules attached hereto.
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<PAGE> 45
ARTICLE 3. CHANGES IN BANKS.
As of and on the Effective Date (as hereinafter defined), (i) Union
Bank of Switzerland and The Sakura Bank Limited (the "Withdrawing Banks") shall
no longer be Bank parties to the Credit Agreement as amended and restated hereby
and, accordingly, shall have no further commitment or obligation to extend
credit to the Company or participate in the credit risk incident to Letters of
Credit issued pursuant to the Credit Agreement as amended and restated hereby
and (ii) the Banks which are named on the signature pages hereof which were not
previously Bank parties to the Credit Agreement (the "New Banks") shall each
become a Bank party to the Credit Agreement as amended and restated hereby, with
a Commitment in the amount set forth opposite its signature hereto and with all
of the rights and obligations of a Bank hereunder. Each such New Bank shall be
deemed to have made the representations to and agreements with the Agents as are
set forth in Section 9 of the Credit Agreement as amended and restated hereby.
ARTICLE 4. THE COMMITMENTS OF THE BANKS.
From and after the Effective Date the Commitment of each Bank shall be
as set forth opposite its signature hereto.
ARTICLE 5. CONDITIONS PRECEDENT TO EFFECTIVENESS.
This Amended and Restated Credit Agreement, including the exhibits and
schedules hereto, shall become effective on October 9, 1997 (the "Effective
Date"), provided that all of the following conditions have then been satisfied:
(a) Notes and Agreement. The Administrative Agent shall have
received (i) a counterpart of this Agreement for each Bank other than
the Withdrawing Banks (the "Continuing Banks") and each New Bank, duly
executed by an Authorized Representative and (ii) for each Continuing
Bank and each New Bank, a Committed Note in the amount of its
Commitment and a Bid Note (each Committed Note and Bid Note to
constitute a "Note" for all purposes of the Credit Agreement as amended
and restated hereby), each duly executed by an Authorized
Representative, the Notes issued in favor of the Continuing Banks to be
issued in substitution and replacement for the Notes heretofore issued
to them pursuant to the Credit Agreement.
(b) Legal Opinion. The Administrative Agent shall have
received, with a copy for each Continuing Bank and each New Bank,
opinions of the Senior Vice President and General Counsel of the
Company and of Messrs. Sullivan & Cromwell dated the Closing Date,
substantial in the forms of Exhibits G and H.
(c) Corporate Proceedings. The Administrative Agent shall have
received, with a copy for each Continuing Bank and each New Bank, a
copy of the resolutions of the Board of Directors of the Company (or
the Executive Committee thereof) authorizing the execution, delivery
and performance of this Amended and Restated Credit Agreement and the
Notes, the consummation of the transactions contemplated hereby and the
borrowings and letters of credit provided for herein, in each case
certified, with a copy of such certification for each Continuing Bank
and each New Bank, by the Secretary or an Assistant Secretary thereof
as of the Effective Date; and such certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded as of the date of such certificate.
(d) Corporate Documents. The Administrative Agent shall have
received, with a copy for each Continuing Bank and each New Bank, true
and complete copies of the Restated Certificate of
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<PAGE> 46
Incorporation and by-laws of the Company, certified as of the Effective
Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of the Company.
(e) Incumbency Certificates. The Administrative Agent shall
have received, with a copy for each Continuing Bank and each New Bank,
a certificate of the Secretary or an Assistant Secretary of the
Company, dated the Effective Date, as to the incumbency and signatures
of the officers thereof executing each of this Amended and Restated
Credit Agreement and the Notes to be executed and delivered hereunder
and any certificate or other documents to be delivered by it pursuant
hereto, together with evidence of the incumbency of such Secretary or
Assistant Secretary.
(f) Fees. The Agents shall have received all fees and expenses
payable by the Company to the Continuing Banks, the New Banks, the
Administrative Agent and the Agent in connection with this Amended and
Restated Credit Agreement on or prior to the Effective Date.
(g) Bid Loans. As of the Effective Date there shall either be
no Bid Loans outstanding (other than Bid Loans maturing on the
Effective Date) or the holders of such Bid Loans shall have agreed to
accept prepayment of same on the Effective Date.
(h) Closing Certificate. The Agent shall have received, with a
copy for each Bank, a signed closing certificate dated as of the
Effective Date in the form annexed hereto as Exhibit I (being
acknowledged that such a certificate shall constitute a certificate
furnished by the Company pursuant to the Credit Agreement for purposes
of Section 7.1(c) thereof).
(i) Closing Adjustments. Provided that all of the foregoing
conditions precedent have been satisfied on the Effective Date, the
Company shall on the Effective Date pay to the Administrative Agent for
prompt distribution to the Withdrawing Banks all principal of and
interest on Loans from the Withdrawing Banks which are outstanding on
the Effective Date and all facility fees and Letter of Credit fees
which have accrued for the account of the Withdrawing Banks through the
Effective Date. If there are Committed Loans outstanding on the
Effective Date and the foregoing conditions precedent have been
satisfied then on the first day on which such Committed Loans can be
repaid without requiring the Company to make a payment to the Banks
under Section 2.5 hereof, there shall be such non-ratable Borrowing and
repayments of the Committed Loans as shall be necessary so that after
giving effect thereto the percentage of the Commitment of each
Continuing Bank in use through Committed Loans is identical. If any
requests are made for Committed Loans under the Credit Agreement as
amended and restated hereby prior to the foregoing adjustments having
been made, the same shall be allocated as among the Continuing Banks so
the percentage of the Commitment of each Bank in use through Committed
Loans will be as close to identical as is possible, and the Company
shall select Interest Periods therefor (in the case of Committed
Eurodollar Loans) which are co-terminus with the Interest Periods
applicable to any Committed Eurodollar Loans which are not refunded at
the time this Amended and Restated Credit Agreement becomes effective.
ARTICLE 6. RETURN OF NOTES.
Promptly upon this Amended and Restated Credit Agreement becoming
effective, the Continuing Banks shall return to the Agent the Notes now held by
them marked "cancelled" or "superseded", the Withdrawing Banks shall return the
Notes issued to them to the Agent marked "cancelled", and the Agent shall
thereupon return such Notes to the Company, provided that if any of such Notes
are lost the Bank to which such Notes were issued shall instead indemnify the
Company from any liability, loss or cost arising as a result of such loss.
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<PAGE> 47
ARTICLE 7. MISCELLANEOUS.
All references in the Credit Agreement as amended and restated hereby
to "the date hereof" shall, from and after the Effective Date, be deemed
references to the date of this Amended and Restated Credit Agreement. No
reference to this Amended and Restated Credit Agreement need be made in any Loan
Document or in any other instrument or document at any time referring to the
Credit Agreement, a reference to the Credit Agreement in any of such to be
deemed to be a reference to the Credit Agreement as amended and restated hereby.
This Amended and Restated Credit Agreement shall be construed in accordance with
and governed by the law of the State of New York and may be executed in
counterparts and by separate parties hereto on separate counterparts, each to
constitute an original but all one in the same instrument.
Upon your acceptance hereof in the manner hereinafter set forth, this
Amended and Restated Credit Agreement shall be a contract between us for the
purposes hereinabove set forth.
Executed and delivered as of this 9th day of October, 1997.
ALUMAX INC.
By /s/ Thomas L. Gleason
----------------------------------
Its Treasurer
------------------------------
Address for Notices:
3424 Peachtree Road, N.E.
Suite 2100
Atlanta, Georgia 30326
Attention: Thomas L. Gleason, Treasurer
Telecopy: (404) 846-4654
Telephone: (404) 846-4541
with a copy to:
3424 Peachtree Road, N.E.
Suite 2100
Atlanta, Georgia 30326
Attn: Senior Vice President and General Counsel
Telecopy: (404) 846-4769
Telephone: (404) 846-4651
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<PAGE> 48
Commitment: ROYAL BANK OF CANADA
$90,000,000 By /s/ John Crawford
-----------------------------
Its Senior Manager
------------------------
Address for Notices:
U.S.A. Headquarters
Financial Square
32 Old Slip
New York, New York 10005-3531
Attention: John Crawford, Senior Manager
Telecopy: (212) 428-6459
Telephone: (212) 428-6261
Lending Offices:
Domestic Rate Loans:
Same as above address
Attention: V. Levons
Telecopy: (212) 428-2372
Telephone: (212) 428-6322
Eurodollar Loans:
Royal Bank of Canada
Grand Cayman No. 1 (N.A. Branch)
c/o New York Branch
Attention: V. Levons
Telecopy: (212) 428-2372
Telephone: (212) 428-6322
Stated Rate Loans:
Same as above address
Attention: I. Wanamaker
Telecopy: (212) 428-2310
Telephone: (212) 428-6308
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<PAGE> 49
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By /s/ Lindsay Gordon
--------------------------------------
Its Director
---------------------------------
CIBC Wood Gundy Securities Corp.,
As Agent
Address for Notices:
425 Lexington Avenue, 6th Floor
New York, New York 10017
Attention: Lindsay Gordon, Vice President
Telecopy: (212) 885-4995
Telephone: (212) 856-3579
Commitment: CIBC INC.
as a Bank
$85,000,000
By /s/ Lindsay Gordon
--------------------------------------
Its Director
---------------------------------
CIBC Wood Gundy Securities Corp.,
As Agent
Address for Notices:
CIBC Inc.
425 Lexington Avenue, 6th Floor
New York, New York 10017
Attention: Lindsay Gordon, Vice President
Telecopy: (212) 885-4995
Telephone: (212) 856-3579
Lending Offices:
Domestic Rate Loans:
Same as Administrative Agent
-----------------------------------------
-----------------------------------------
Eurodollar Loans:
Same as Administrative Agent
-----------------------------------------
-----------------------------------------
Stated Rate Loans:
Same as Administrative Agent
-----------------------------------------
-----------------------------------------
-44-
<PAGE> 50
Commitment: BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
$67,500,000 By /s/ Michelle W. Kacergis
---------------------------------------
Its Managing Director
-----------------------------------
Address for Notices:
1230 Peachtree Street
Suite 3800
Atlanta, Georgia 30309
Attention: Ms. Michelle W. Kacergis,
Managing Director
Telecopy: (404) 249-6938
Telephone: (404) 249-6906
Lending Offices:
Domestic Rate Loans:
231 S. LaSalle Street 200-9
Chicago, IL 60697
Attention: Joycelyn Gay
Telecopy: (312) 974-9626
Eurodollar Loans:
Same as Domestic Rate Loan
------------------------------------------
------------------------------------------
Stated Rate Loans:
555 California Street, 10th Floor
San Francisco, CA 94104
Attention: Linda Webster
Telecopy: (415) 622-2235
-45-
<PAGE> 51
Commitment: BANK OF MONTREAL
$67,500,000
By /s/ Joanna S. Bellocq
------------------------------------------
Its DIRECTOR
---------------------------------------
Address for Notices:
430 Park Avenue, 14th Floor
New York, New York 10022
Attention: Joanna Bellocq
Telecopy: (212) 605-1451
Telephone: (212) 605-1637
Lending Offices:
Domestic Rate Loans:
Bank of Montreal, Chicago Branch
115 South LaSalle Street
Chicago, IL 60603
Eurodollar Loans:
Same as above
--------------------------------------------
--------------------------------------------
Stated Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
-46-
<PAGE> 52
Commitment: THE CHASE MANHATTAN BANK
$67,500,000
By /s/ James H. Ramage
-------------------------------------
Its Vice President
----------------------------------
Address for Notices:
270 Park Avenue, 23rd Floor
New York, New York 10017
Attention: Jim Ramage, Vice President
Telecopy: (212) 270-4724
Telephone: (212) 270-1373
Lending Offices:
Domestic Rate Loans:
Same as above
---------------------------------------
---------------------------------------
Eurodollar Loans:
Same as above
---------------------------------------
---------------------------------------
Stated Rate Loans:
Same as above
---------------------------------------
---------------------------------------
-47-
<PAGE> 53
Commitment: CREDIT LYONNAIS ATLANTA AGENCY
$67,500,000 By /s/ Robert Ivosevich
-------------------------------------
Its SENIOR VICE PRESIDENT
----------------------------------
Address for Notices:
One Peachtree Center, Suite 4400
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: Christina Earnshaw, Vice President
Telecopy: (404) 584-5249
Telephone:(404) 524-3700
Lending Offices:
Domestic Rate Loans:
Same as above
---------------------------------------
---------------------------------------
Eurodollar Loans:
Same as above
---------------------------------------
---------------------------------------
Stated Rate Loans:
Same as above
---------------------------------------
---------------------------------------
-48-
<PAGE> 54
Commitment: THE FIRST NATIONAL BANK OF CHICAGO
$67,500,000
By /s/ Brett C. Neubert
-------------------------------------
Its Authorized Agent
----------------------------------
Address for Notices:
1 First National Plaza, Suite 0324
Chicago, Illinois 60670-0324
Attention: Brett C. Neubert, Vice President
Telecopy: (312) 732-2991
Telephone: (312) 732-2752
Lending Offices:
Domestic Rate Loans:
Same as above address
Attention: Bill Laird
Telephone: (312) 732-5635
Eurodollar Loans:
Same as above
---------------------------------------
---------------------------------------
Stated Rate Loans:
Same as above
---------------------------------------
---------------------------------------
-49-
<PAGE> 55
Commitment: WACHOVIA BANK, N.A.
$67,500,000
By /s/ William R. McCamay
-------------------------------------
Its Assistant Vice President
----------------------------------
Address for Notices:
191 Peachtree Street
Atlanta, GA 30303-1757
Attention: Mr. Bill McCamay
Telecopy: (404) 332-5016
Telephone:(404) 332-1371
Lending Offices:
Domestic Rate Loans:
Same as above
---------------------------------------
---------------------------------------
Eurodollar Loans:
Same as above
---------------------------------------
---------------------------------------
Stated Rate Loans:
Same as above
---------------------------------------
---------------------------------------
-50-
<PAGE> 56
Commitment: MELLON BANK, N.A.
$45,000,000 By /s/ Dwayne R. Finney
-------------------------------------
Its Assistant Vice President
----------------------------------
Address for Notices:
One Mellon Bank Center
Room 4401
Pittsburgh, PA 15258-0001
Attention: Mr. Dwayne R. Finney, Asst. Vice President
Telecopy: (412) 234-8888
Telephone: (412) 236-5914
Lending Offices:
Domestic Rate Loans:
Same as above
---------------------------------------
---------------------------------------
Eurodollar Loans:
Same as above
---------------------------------------
---------------------------------------
Stated Rate Loans:
Same as above
---------------------------------------
---------------------------------------
-51-
<PAGE> 57
Commitment: BANQUE NATIONALE DE PARIS
$25,000,000 By /s/ Eva Millar Russo Sally S. Haswell
------------------------------------------
Its Vice President Vice President
---------------------------------------
Address for Notices:
499 Park Avenue, 3rd Floor
New York, New York 10022
Attention: Ms. Sally S. Haswell
Telecopy: (212) 415-9898
Telephone: (212) 418-8243
Lending Offices:
Domestic Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
Eurodollar Loans:
Same as above
--------------------------------------------
--------------------------------------------
Stated Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
-52-
<PAGE> 58
Commitment: THE BANK OF TOKYO-MITSUBISHI LTD., ATLANTA
AGENCY
$25,000,000 By /s/ Brandon A. Meyerson
-----------------------------------------------
Its Assistant Vice President
--------------------------------------------
Address for Notices:
Georgia-Pacific Center, Suite 4970
133 Peachtree, N.E.
Atlanta, GA 30303-1808
Attention: Mr. Gary L. England
Telecopy: (404) 577-1155
Telephone: (404) 577-2960
Lending Offices:
Domestic Rate Loans:
Same as above
-------------------------------------------------
-------------------------------------------------
Eurodollar Loans:
Same as above
-------------------------------------------------
-------------------------------------------------
Stated Rate Loans:
Same as above
-------------------------------------------------
-------------------------------------------------
-53-
<PAGE> 59
Commitment: COMMERZBANK AG,
ATLANTA AGENCY
$25,000,000
By /s/ Harry Yergey Eric Kagerer
-----------------------------------------------
Its Harry Yergey, SVP Eric Kagerer, VP
Address for Notices:
Promenade Two, Suite 3500
1230 Peachtree Street N.E.
Atlanta, Georgia 30309
Attention: Harry P. Yergey, SVP & Manager
Telecopy: (404) 888-6539
Telephone:(404) 888-6500
Lending Offices:
Domestic Rate Loans:
Same as above
-------------------------------------------------
-------------------------------------------------
Eurodollar Loans:
Same as above
-------------------------------------------------
-------------------------------------------------
Stated Rate Loans:
Same as above
-------------------------------------------------
-------------------------------------------------
Designating Lender:
COMMERZBANK AG,
ATLANTA AGENCY
By /s/ Harry Yergey, SVP Eric Kagerer, VP
-----------------------------------------------
Its Harry Yergey, SVP Eric Kagerer, VP
--------------------------------------------
Designated Lender:
FOUR WINDS FUNDING CORPORATION
By /s/ James F. Ahern Carl H. Jackson
-----------------------------------------------
Its Vice President Vice President
--------------------------------------------
-54-
<PAGE> 60
Commitment: DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLANDS BRANCH
$25,000,000
By /s/ John Summers
------------------------------------------
Its SVP
---------------------------------------
By /s/ Eric Zimmerman
------------------------------------------
Its Assistant Treasurer
---------------------------------------
Address for Notices:
Atlanta Agency, Suite 2900
303 Peachtree Street N.E.
Atlanta, Georgia 30308
Attention: Mr. Eric Zimmerman
Telecopy: (404)524-4006
Telephone: (404)524-3966
Lending Offices:
Domestic Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
Eurodollar Loans:
Same as above
--------------------------------------------
--------------------------------------------
Stated Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
-55-
<PAGE> 61
Commitment: DRESDNER BANK AG, NEW YORK BRANCH
$25,000,000
By /s/ Thomas Lake
------------------------------------------
Its VICE PRESIDENT
---------------------------------------
BY /s/ Michael Terry
------------------------------------------
Its ASSISTANT VICE PRESIDENT
---------------------------------------
Address for Notices:
75 Wall Street, 25th Floor
New York, NY 10005-2889
Attention: Robert J. Preminger
Telecopy: (212) 429-2192
Telephone: (212) 429-2752
Lending Offices:
Domestic Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
Eurodollar Loans:
Same as above
--------------------------------------------
--------------------------------------------
Stated Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
-56-
<PAGE> 62
Commitment: THE FUJI BANK, LIMITED
$25,000,000 By /s/ Toshihiro Mitsui
------------------------------------------
Its Senior Vice President & Senior Manager
---------------------------------------
Address for Notices:
Marquis One Tower, Suite 2100
245 Peachtree Center Ave., N.E.
Atlanta, Georgia 30303-1208
Attention: Mr. Clarence Mahovlick, Vice President
Telecopy: (404) 653-2119
Telephone: (404) 653-3316
Lending Offices:
Domestic Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
Eurodollar Loans:
Same as above
--------------------------------------------
--------------------------------------------
Stated Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
-57-
<PAGE> 63
Commitment: SUNTRUST BANK, ATLANTA
$25,000,000
By /s/ Chris Deisley
------------------------------------------
Its FVP
---------------------------------------
By /s/ R. M. Dunlap
------------------------------------------
Its Vice President
---------------------------------------
Address for Notices:
25 Park Place
23rd Floor
Atlanta, Georgia 30303
Attention: Mr. Chris Deisley
Telecopy: (404) 588-8833
Telephone: (404) 588-8684
Lending Offices:
Domestic Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
Eurodollar Loans:
Same as above
--------------------------------------------
--------------------------------------------
Stated Rate Loans:
Same as above
--------------------------------------------
--------------------------------------------
-58-
<PAGE> 64
Commitment: UNION BANK OF SWITZERLAND
$0
By /s/ Hamilton W. Bullard C.C. Glockler
------------------------------------------
Its ASSISTANT TREASURER DIRECTOR
---------------------------------------
Address for Notices:
299 Park Avenue, 33rd Floor
New York, New York 10171
Attention: Robert W. Casey, Vice President
Telecopy: (212) 821-3383
Telephone: (212) 821-3329
Lending Offices:
Domestic Rate Loans:
299 Park Avenue
New York, New York 10171
Attention: Michael Peterson
Eurodollar Loans:
299 Park Avenue
New York, New York 10171
Attention: Michael Peterson
Stated Rate Loans:
299 Park Avenue
New York, New York 10171
Attention: Michael Peterson
-59-
<PAGE> 65
EXHIBIT A
BID LOAN REQUEST CONFIRMATION
[Date]
Canadian Imperial Bank of Commerce,
as Administrative Agent for the Banks party
to the Credit Agreement
referred to below
Attention:
--------------------
Dear :
-------------------
The undersigned, Alumax Inc. (the "Company"), refers to the Amended and
Restated Credit Agreement dated as of October 9, 1997 (the "Credit Agreement"),
among the Company, the Banks named therein, Royal Bank of Canada, as Agent,
Arranger and Letter of Credit Issuer, and Canadian Imperial Bank of Commerce,
as Administrative Agent for the Banks. Capitalized terms used and not defined
herein have the meanings assigned to them in the Credit Agreement. The Company
hereby confirms that it has, on the date hereof, given you notice pursuant to
Section 1.5 of the Credit Agreement that it requests a Bid Loan Borrowing under
the Credit Agreement, and in that connection sets forth below the terms on
which such Bid Loan Borrowing is requested to be made:
(A) Type of Bid Loan Borrowing (1) -------------------
(B) Date of Bid Loan Borrowing (2) -------------------
(C) Aggregate Principal Stated Rate Eurodollar
Amount of Bid Loan ----------- ----------
Borrowing (3)
----------- ----------
(D Maturities (4) ----------- ----------
----------- ----------
----------- ----------
- ---------------------------
(1) Stated Rate or Eurodollar.
(2) The Bid Loan Request Confirmation must be received on a Business Day by
the Administrative Agent not later than 11:30 A.M. (New York time)
one (1) Business Day before the proposed Borrowing Date in the case
of Stated Rate Bid Loans and five Business Days before the proposed
Borrowing Date in the case of Eurodollar Bid Loans.
(3) Not less than $10,000,000 and in integral multiples of $5,000,000.
(4) List up to 3 maturities of 1 to 180 days in the case of Stated Rate Bid
Loans and 1, 2, 3 or 6 months in the case of Eurodollar Bid Loans,
but never beyond the Termination Date.
<PAGE> 66
(E) If applicable, maxi- -------------- ---------------
mum amount requested -------------- ---------------
for each maturity -------------- ---------------
Upon acceptance of any or all of the Bids offered by Banks in response to
this request, the Company shall be deemed to affirm as of such date the
representations and warranties made in the Credit Agreement.
ALUMAX, INC.
By
-------------------------------
Its
----------------------------
-2-
<PAGE> 67
EXHIBIT B
INVITATION TO BID
[Name of Bank] [Date]
[Address]
Attention:
Reference is made to the Amended and Restated Credit Agreement dated as of
October 9, 1997 (the "Credit Agreement") among Alumax Inc., (the "Company"), the
Banks named therein, Royal Bank of Canada, as Agent, Arranger and Letter of
Credit Issuer, and Canadian Imperial Bank of Commerce, as Administrative Agent
for the Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement. The Company made a Bid Loan Request on
_______, ________ pursuant to Section 1.5(a) of the Credit Agreement, and in
that connection you are invited to submit a Bid by [Date](1). Your Bid must
comply with Section 1.5(c) of the Credit Agreement and the terms set forth below
on which the Bid Loan Request was made.
(A) Type of Bid Loan Borrowing (2) ------------
(B) Date of Bid Loan Borrowing ------------
Stated Eurodollar
------ ----------
(C) Aggregate Principal Amount
of Bid Loan Borrowing
------------- ----------
(D) Maturities and maximum
amount, if different from
(C), for any maturity ------------- ----------
Very truly yours,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By
------------------------------------------
Its
---------------------------------------
- --------------------
(1) The Bid must be received by the Administrative Agent not later than 10 a.m.
New York time, on the proposed Borrowing Date for Stated Rate Bid
Loans and 2:00 p.m. four Business Days prior to the proposed
Borrowing Date for Eurodollar Bid Loans.
(2) Stated Rate or Eurodollar
<PAGE> 68
EXHIBIT C
CONFIRMATION OF BID
Canadian Imperial Bank of Commerce, as [Date]
Administrative Agent for the Banks party to
Credit Agreement referred to below
Attention:
The undersigned [Name of Bank], refers to the Amended and Restated Credit
Agreement dated as of October 9, 1997 (the "Credit Agreement") among Alumax
Inc. (the "Company"), the Banks named therein, Royal Bank of Canada, as Agent,
Arranger and Letter of Credit Issuer, and Canadian Imperial Bank of Commerce,
as Administrative Agent for the Banks. Capitalized terms used and not defined
herein have the meanings assigned to them in the Credit Agreement. The
undersigned hereby confirms that on the date hereof it has made a Bid pursuant
to Section 1.5 of the Credit Agreement, in response to the Bid Loan Request
made by the Company on _______, 19_, and in that connection sets forth below
the terms on which such Bid is made.
Type of Bid Loan: -----------------------
(1)
Date of Bid Loan Borrowing: -----------------------
Interest Rate or spread
Principal Amount (2) Maturity (3) over LIBOR (4)
---------------- -------- -----------------------
Very truly yours,
[Name of Bank]
By
-------------------------------------
Its
----------------------------------
- ----------------------
(1) As specified in the related to Bid Loan Request Confirmation.
(2) Principal amount of bid for each maturity may not exceed the principal
amount requested by the Company or the maximum amount requested for
that maturity, if less. Bids must be made in a minimum amount of
$10,000,000 and in integral multiples of $5,000.000.
(3) List each maturity of 1 to 180 days in the case of Stated Rate Bid Loans
and 1, 2, 3 or 6 months in the case of Eurodollar Bid Loans.
(4) Specify rate of interest per annum computed on the basis of a year of 360
days and actual days elapsed for Stated Rate Bid Loans and percentage to
be added to LIBOR for Eurodollar Bid Rate Loans.
<PAGE> 69
EXHIBIT D
NOTICE OF ACCEPTANCE OF BID
[Name of Bank] [Date]
[Address]
Attention:
Reference is made to the Amended and Restated Credit Agreement dated as of
October 9, 1997 (the "Credit Agreement") among Alumax Inc. (the "Company"), the
Banks named therein, Royal Bank of Canada, as Agent, Arranger and Letter of
Credit Issuer, and Canadian Imperial Bank of Commerce, as Administrative Agent
for the Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement. The Company made a Bid Loan Request on
_______, _________ pursuant to Section 1.5 of the Credit Agreement, and in that
connection you have submitted a Bid. Your Bid has been accepted as set forth
below.
(A) Type of Bid Loan -----------------
(B) Date of Bid Loan Borrowing -----------------
(C) Aggregate principal Principal
amount of each Bid Amount Maturity Interest Rate
maturity and interest rate ------ -------- -------------
--------- -------- -------------
--------- -------- -------------
--------- -------- -------------
Very truly yours,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By
-------------------------------------
Its
----------------------------------
<PAGE> 70
EXHIBIT E
ALUMAX INC.
COMMITTED NOTE
$_________________ ________________, 19____
New York, New York
FOR VALUE RECEIVED, the undersigned, Alumax Inc. (the "Company"), promises
to pay to the order of _________ (the "Bank") at the office of Canadian Imperial
Bank of Commerce in New York, New York, the principal sum of _________Dollars
($_________ ) or, if less, the aggregate unpaid principal amount of all Loans
made by the Bank to the Company under its Commitment provided for under the
Credit Agreement hereinafter mentioned and with each Eurodollar Loan to mature
and become payable on the last day of the Interest Period applicable thereto,
but in no event later than the Termination Date, and with each Domestic Rate
Loan to mature and become payable on the Termination Date, together with accrued
and unpaid interest on the principal amount of each Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates
specified in said Credit Agreement.
The Bank shall record on its books or records or on a schedule to this
Note which is a part hereof the principal amount of each Loan, all payments of
principal and interest and the principal balances from time to time
outstanding, whether the Loan is a Eurodollar Loan or Domestic Rate Loan and,
in the case of any Eurodollar Loan, the interest rate and Interest Period
applicable thereto; provided that prior to the transfer of this Note all such
amounts shall be recorded on a schedule attached to this Note. The record
thereof, whether shown on such books or records or on a schedule to this Note,
shall be prima facie evidence as to all such amounts; provided, however, that
the failure of the Bank to record any of the foregoing shall not limit or
otherwise affect the obligation of the Company to repay all Loans, together
with accrued but unpaid interest thereon.
This Note is one of the Notes referred to in and issued under that certain
Amended and Restated Credit Agreement dated as of October 9, 1997 among the
Company, Royal Bank of Canada, as Agent, Arranger and Letter of Credit Issuer,
Canadian Imperial Bank of Commerce, as Administrative Agent, and the other
Banks named therein (the "Credit Agreement"), and this Note and the holder
hereof are entitled to all of the benefits provided for thereby or referred to
therein, to which Credit Agreement reference is hereby made for a statement
thereof. All defined terms used in this Note, except terms otherwise defined
herein, shall have the same meaning as such terms have in said Credit
Agreement.
Prepayments may be made and in certain circumstances are required to be
made, on the Loans evidenced hereby and this Note (and the Loans evidenced
hereby) may be declared due prior to the expressed maturity thereof, all in the
events, on the terms and in the manner as provided for in said Credit
Agreement. This Note shall be construed in accordance with and governed by the
laws of New York.
ALUMAX, INC.
By
------------------------------------------
Its
---------------------------------------
<PAGE> 71
EXHIBIT F
ALUMAX INC.
BID NOTE
______________, 19____
New York, New York
FOR VALUE RECEIVED, the undersigned, ALUMAX INC. (the "Company"), promises
to pay to the order of _________(the "Bank") at the office of Canadian Imperial
Bank of Commerce in New York, New York, the principal amount of all Bid Loans
made by the Bank to the Company pursuant to the Credit Agreement (as hereinafter
defined), with each Bid Loan to mature and become payable on the maturity date
specified therefor pursuant to the Credit Agreement, but in no event later than
the Termination Date, together with accrued and unpaid interest on the principal
amount of each Bid Loan from time to time outstanding hereunder at the rates,
and payable in the manner and on the date, specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule to this
Note which is a part hereof the principal amount of each Bid Loan, all payments
of principal and interest and the principal balances from time to time
outstanding, whether the Bid Loan is a Stated Rate Bid Loan or Eurodollar Bid
Loan and, the interest rate and the Interest Period applicable thereto;
provided that prior to the transfer of this Note all such amounts shall be
recorded on a schedule attached to this Note. The record thereof, whether shown
on such books or records or on a schedule to this Note, shall be prima facie
evidence as to all such amounts; provided, however, that the failure of the
Bank to record any of the foregoing shall not limit or otherwise affect the
obligation of the Company to repay all Bid Loans, together with accrued but
unpaid interest thereon.
This Note is one of the Bid Notes referred to in and is issued under that
certain Amended and Restated Credit Agreement dated as of October 9, 1997
between the Company, Royal Bank of Canada, as Agent, Arranger and Letter of
Credit Issuer, Canadian Imperial Bank of Commerce, as Administrative Agent, and
the other Banks named therein, as amended (the "Credit Agreement"), and this
Note and the holder hereof are entitled to all of the benefits provided for
thereby or referred to therein, to which Credit Agreement reference is hereby
made for a statement thereof. All defined terms used in this Note, except terms
otherwise defined herein, shall have the same meaning as such terms have in
said Credit Agreement.
Prepayments may in certain circumstances be required to be made on the Bid
Loans evidenced hereby and this Note (and the Bid Loans evidenced hereby) may
be declared due prior to the expressed maturity thereof, all in the events, on
the terms and in the manner as provided for in said Credit Agreement. Bid Loans
may not be voluntarily prepaid. This Note shall be construed in accordance with
and governed by the laws of New York.
ALUMAX INC.
By
---------------------------
Its
------------------------
<PAGE> 72
EXHIBIT G
OPINION OF SULLIVAN & CROMWELL
_____________, 1997
To the Banks party
to the Amended and Restated
Credit Agreement referred
to below
Dear Sirs:
In connection with the Amended and Restated Credit Agreement, dated as of
October 9, 1997 (the "Restated Credit Agreement"), among Alumax Inc., a
Delaware corporation (the "Company"), Royal Bank of Canada, as Agent, Arranger
and Letter of Credit Issuer, Canadian Imperial Bank of Commerce, as
Administrative Agent, and the banks signatory thereto (the "Banks"), we, as
counsel for the Company, have examined such corporate records, certificates and
other documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion. Upon the basis of such
examination, it is our opinion that:
(1) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(2) The Restated Credit Agreement and the Notes delivered by the
Company to the Banks on the date hereof pursuant thereto each has been
duly authorized, executed and delivered by the Company, and the Restated
Credit Agreement and such Notes each constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(3) There are no regulatory consents, authorizations, approvals or
filings required to be obtained or made by the Company under the Federal
laws of the United States, the laws of the State of New York or the
General Corporation Law of the State of Delaware for the execution and
delivery of the Restated Credit Agreement or the Notes delivered by the
Company to the Banks on the date hereof pursuant thereto or for the
performance by the Company of its obligations under the Restated Credit
Agreement and such Notes.
<PAGE> 73
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law
of the State of Delaware, and we are expressing no opinion as to the
effect of the laws of any other jurisdiction.
With your approval, we have relied as to certain matters on
information obtained from public officials, officers of the Company and
other sources believed by us to be responsible, and we have assumed that
the Restated Credit Agreement have been duly authorized, executed and
delivered by all parties thereto other than the Company and that the
signatures on all documents examined by us are genuine, assumptions which
we have not independently verified.
The foregoing opinion is rendered as of the date hereof, and we make
no undertaking and expressly disclaim any duty to supplement such opinion
if, after the date hereof, facts and circumstances come to our attention
or changes in the law occur which could affect such opinion.
This opinion is furnished by us as counsel for the Company in
connection with the execution and delivery by the Company of the Restated
Credit Agreement and is solely for the benefit of the addressees named
above and any Bank that may from time to time become a party to the
Restated Credit Agreement.
Very truly yours,
SULLIVAN & CROMWELL
-2-
<PAGE> 74
EXHIBIT H
OPINION OF R. P. WOLF, ESQ.
(Alumax Letterhead)
________, 1997
To the Banks
party to the Amended and Restated
Credit Agreement referred
to below
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Alumax Inc., a Delaware
corporation (the "Company"), and in such capacity have overseen and
participated in the provision of legal advice and assistance to the Company in
connection with the negotiation of, and the closing of the transactions
contemplated by, the Amended and Restated Credit Agreement (the "Restated
Credit Agreement"), dated as of October 9, 1997, among the Company, Royal Bank
of Canada, as Agent, Arranger and Letter of Credit Issuer, Canadian Imperial
Bank of Commerce, as Administrative Agent and the Banks signatory thereto.
Terms used herein and not defined shall have their respective defined meanings
as set forth in the Restated Credit Agreement.
In rendering the opinions expressed below, I have examined originals,
conformed copies, or copies otherwise identified to my satisfaction of such
corporate records, agreements, and instruments of the Company, such
certificates of public officials and of officers, employees, and agents of the
Company and such other agreements and documents as I have deemed necessary for
the purpose of expressing the opinions herein. Though I have examined such
matters of law as I deemed necessary for the purpose of expressing the opinions
herein, please note that with respect to the opinion expressed in Paragraph 2
below and the incorporation of the term "applicable" therein, my opinion is
limited to a review of only those laws and regulations that, based upon my
review of the Restated Credit Agreement, I have considered to be applicable to
the transactions contemplated thereby. Also, for purposes of the opinion
expressed in Paragraph 1 below as to the due qualification to transact business
as a foreign corporation in certain jurisdictions, I have relied solely upon a
review of a certificate of the Secretary of State (or other similar official)
of each such jurisdiction.
For purposes of my opinion expressed in Paragraph 2 hereof, I have not
made any independent review or investigation of any agreements or instruments
to which the Company is bound, except I have reviewed or caused to be reviewed
those agreements and instruments listed on Schedule I hereto (hereinafter
referred to as "Material Agreements"), and such opinion is based upon the
audited consolidated financial statements of the Company as at and for the year
ended December 31, 1996, without giving effect to any borrowing under the
Restated Credit Agreement, or under the Restated Credit Agreement prior to its
amendment and restatement, subsequent to such date. Schedule I sets forth all
agreements and instruments entered into by the Company or any Restricted
Subsidiary and deemed by the Company to be "material contracts" of the Company
under item 601(b)(10)(i) and (ii) of Regulation S-K ("Regulation S-K")
promulgated by the Securities and Exchange Commission (the "Commission") or
otherwise entered into by the Company or any Restricted Subsidiary and filed by
the Company with the Commission as an exhibit under Item 601(b)(4) of
Regulation S-K. Furthermore, for purposes of my opinion expressed in Paragraph
3 hereof, I have not examined plaintiff or defendant indexes in any federal,
state or other court or any other tribunal.
<PAGE> 75
During the course of all such examinations, I have assumed (i) the
genuineness of all signatures other than those of the Company on the Restated
Credit Agreement and the Notes delivered by the Company on the date hereof, (ii)
the authenticity of all documents submitted to me as originals, (iii) the
conformity to the original documents of all documents submitted to me as
certified, conformed, facsimile, or photographic copies, and (iv) that
certificates and telephonic and telecopy confirmations given by public officials
have been properly given and are accurate. I have further assumed, except where
this opinion expressly addresses such matters as to the Company, (i) the power
and authority of all parties to enter into the transactions contemplated by the
Restated Credit Agreement and (ii) the due authorization and valid execution and
delivery by such parties of the agreements and instruments necessary in
connection with such transactions.
Based upon and subject to the foregoing and subject to the
qualifications set forth herein, I am of the opinion that:
1. The Company has the necessary corporate power to execute and deliver
the Restated Credit Agreement and the Notes issued pursuant thereto, to
perform the Restated Credit Agreement and such Notes, and to borrow and
request the issuance of Letters of Credit under the Restated Credit
Agreement. Each of the Restricted Subsidiaries of the Company having a
net worth in excess of $5,000,000 as at June 30, 1997 except for Alumax
Recycling B.V., but including Alumax Engineered Metal Processes, Inc.,
Alumax Warehouse Corporation and Eastalco Aluminum Company (such
Restricted Subsidiaries are listed on Schedule II hereto and are
hereinafter referred to as the "Material Subsidiaries") is an entity
duly incorporated or organized, as applicable, validly existing and in
good standing under the laws of the respective jurisdiction indicated
opposite its name in Schedule II hereto, to the extent such concepts
are applicable and recognized in such jurisdictions. The Company is
duly qualified to transact business in the States of California and
Georgia and, to my knowledge, the Company is duly qualified to transact
business in such other jurisdictions, and the Material Subsidiaries of
the Company are duly qualified to transact business in all such
jurisdictions, where the failure to qualify would have a Material
Adverse Effect.
2. The execution and delivery by the Company of the Restated
Credit Agreement and the Notes issued pursuant thereto, the performance
by the Company of the Restated Credit Agreement and such Notes, and the
borrowing and the requests for the issuance of Letters of Credit by the
Company under the Restated Credit Agreement (i) do not and will not, to
my knowledge, violate (a) any provision of applicable law or regulation
or (b) any order or decree known to me by which the Company, any of its
Restricted Subsidiaries or any of their respective Properties may be
bound, which in either case (a) or (b) would result in a Material
Adverse Effect; (ii) do not and will not violate any provision of the
charter or by-laws of the Company or any of its Restricted
Subsidiaries; and (iii) do not and will not result in the breach of, or
constitute a default or require any consent under, or result in the
creation of any Lien upon any of the Properties, revenues, or assets of
the Company or any of its Restricted Subsidiaries under any Material
Agreement.
3. Except as to the matters disclosed in Section 4.10 of the Restated
Credit Agreement reflected in the Company's filings with the Commission
on Form 10-K for the year ended December 31, 1996 or its Form 10-Q for
the quarter ended June 30, 1997 or reflected on Schedule III to the
Restated Credit Agreement, there are no legal or arbitral proceedings,
and no proceedings by or before any governmental or regulatory
authority or agency, pending or threatened against or affecting the
Company, any of its Restricted Subsidiaries, or any of their respective
Properties known to me the outcome of which I have reasonable cause to
believe could be expected to have a Material Adverse Effect.
This opinion is limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated. Opinions
rendered herein are as of the date hereof, and I make no
-2-
<PAGE> 76
undertaking and expressly disclaim any duty to supplement such opinions if,
after the date hereof, facts or circumstances come to my attention or changes in
the law occur which could affect such opinions.
In rendering the foregoing opinions, I am expressing no opinion as to
matters of law other than the General Corporation Law of the State of Delaware
and the federal laws of the United States of America. I am admitted to practice
law only in the Commonwealth of Virginia and before certain federal courts. I am
not licensed to practice law in the State of Georgia, the State of Delaware, or
the State of New York.
This opinion is rendered solely for the benefit of the Banks, the
Administrative Agent, the Agent, their prospective or actual successors and
assigns, and their legal advisors and accountants and only with respect to the
transactions described herein. No further distribution or use of this opinion is
authorized and this opinion may not be quoted in full or in part or otherwise
referred to in any financial statements, nor may it be filed with or furnished
to any governmental agency (other than those examining the Banks, the Agents, or
their successors and assigns) or other party without the prior written consent
of the undersigned.
Very truly yours,
R. P. Wolf
Enclosures: Schedule I
Schedule II
-3-
<PAGE> 77
SCHEDULE I - OPINION LETTER OF R. P. WOLF
THE FINANCIAL INSTITUTIONS PARTY TO THE FIRST AMENDMENT
MATERIAL AGREEMENTS OF ALUMAX INC.
AND ITS RESTRICTED SUBSIDIARIES
1. Bridge Loan Agreement, dated as of January 17, 1996, among Alumax
Inc., The Chase Manhattan Bank, N.A., as Syndication Agent, Royal Bank of
Canada, as Documentation and Administrative Agent, and the Bank's signatory
thereto.
2. Credit Agreement, dated as of May 19, 1995, as amended, by and among
Alumax Inc., the Banks Signatory Hereto, Royal Bank of Canada, as Agent,
Arranger and Letter of Credit Issuer, and Canadian Imperial Bank of Commerce, as
Administrative Agent, and the Bank's signatory thereto.
3. Lease Agreement, dated as of November 25, 1986, by and between
Connecticut National Bank as Owner Trustee for the benefit of U.S. West Capital
Corporation under an Owner Trust Agreement, dated as of November 25, 1986, and
Alumax Mill Products, Inc.
4. Facility Purchase Agreement, executed and effective as of September
18, 1996, among Alumax Mill Products, Inc., Fleet National Bank and U.S. West
Financial Services, Inc.
5. Purchase Agreement, dated as of June 24, 1996, between Euramax
International, Ltd. and Alumax Inc.
6. Acquisition Agreement, dated as of January 26, 1996, between Alumax
of South Carolina, Inc. and Glencore Primary Aluminum Company, LLC.
7. Stock Purchase Agreement by and among the Shareholders of Cressona
Aluminum Company, as Sellers, and Alumax Inc., as Purchaser, dated October 6,
1995.
8. Acquisition Agreement among Eastalco Aluminum Company, Eastalco
Venture, Alumax of Maryland, Inc. and Alumet Corporation, Atmos (U.S.A.)
Incorporated and Mitalco Inc., dated March 31, 1995.
9. Restated Sales Agreement, dated as of January 1, 1986, as amended
and supplemented as of April 8, 1992, and April 9, 1992, by and between Alcoa of
Australia Limited and Alumax Inc.
10. Power Sales Agreement, dated as of October 1, 1995, between British
Columbia Power Exchange Corporation and Intalco Aluminum Corporation.
11. Power Sales Agreement, dated September 28, 1995, as amended,
between Intalco Aluminum Corporation and Bonneville Power Administration.
<PAGE> 78
12. Electric Service Agreement, dated as of November 11, 1994, by and
between Eastalco Aluminum Company and The Potomac Edison Company.
13. South Carolina Public Service Authority Service Agreement for Large
Power Electric Service, made and entered in July 1, 1997, by and between the
South Carolina Public Service Authority and Alumax of South Carolina, Inc.
14. Rights Agreement, dated as of February 22, 1996, between Alumax
Inc. (the "Company") and Chemical Mellon Shareholder Services, L.L.C., as Rights
Agent.
-2-
<PAGE> 79
SCHEDULE II - OPINION LETTER OF R.P. WOLF
MATERIAL SUBSIDIARIES AS OF SEPTEMBER 30, 1997
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
------------------ -----------------------------
<S> <C>
Alumax Aluminum Corporation Delaware
Alumax Becancour, Inc. Delaware
Alumax Engineered Metal Processes, Inc. Delaware
Alumax Extrusions, Inc. Pennsylvania
Alumax Foils, Inc. Delaware
Alumax of Maryland, Inc. Delaware
Alumax Mill Products, Inc. Delaware
Alumax Quebec, Inc. Wyoming
Alumax of South Carolina, Inc. Delaware
Alumax Warehouse Corporation Delaware
Alumax of Washington, Inc. Delaware
Eastalco Aluminim Corporation Delaware
Intalco Aluminum Corporation Delaware
Kawneer Company, Inc. Delaware
Alumax Extrusions Mexico, S.A. de C.V. Mexico
Alumax Extrusions B.V. The Netherlands
Alumax Holdings S.A. France
Kawneer Deutschland G.m.b.H. Germany
</TABLE>
<PAGE> 80
EXHIBIT I
FORM OF DESIGNATION AGREEMENT
Reference is made to that certain Amended and Restated Credit Agreement
dated as of October 9, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among Alumax Inc., the Banks parties
thereto, Royal Bank of Canada, as Agent, Arranger and Letter of Credit Issuer
and Canadian Imperial Bank of Commerce as Administrative Agent. Terms defined in
the Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNATING LENDER] (the "Designating Lender"), [NAME OF DESIGNEE] (the
"Designee"), the Administrative Agent and the Company agree as follows:
1. Pursuant to Section 10.12 of the Credit Agreement the Designating Lender
hereby designates the Designee, and the Designee hereby accepts such
designation, to have a right to make Committed Loans and/or Bid Loans under the
Credit Agreement.
2. Except as set forth in Section 7 below, the Designating Lender makes no
representation or warranty to the Designated Lender and assumes no
responsibility pursuant to this Designation Agreement with respect to (a) any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any related documents or any other
instrument and document furnished pursuant thereto and (b) the financial
condition of the Company or the performance or observance by the Company of any
of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
subsections 4.3 and 6.6 of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Agents, the Designating Lender or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (c) confirms that it accepts its
designation hereunder as a Designated Lender; (d) appoints and authorizes the
Agents to take such action as agents on its behalf and to exercise such powers
and discretion under the Credit Agreement as are delegated to the Agents by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (e) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank and (f) make all acknowledgments to and
agreements with the Agents as are set forth in Section 9 of the Credit
Agreement.
4. The Designee hereby appoints [Designating Lender or a specified branch or
affiliate of Designating Lender] as Designee's agent and attorney in fact and
grants to [Designating Lender or a specified branch or affiliate of Designating
Lender] an irrevocable power of attorney to receive payments made for the
benefit of Designee under the Credit Agreement, to take all actions and deliver
and receive all communications and notices under the Credit Agreement and other
related documents and to exercise on Designee's behalf all rights to vote and to
grant and make approvals, waivers, consents of amendments
<PAGE> 81
to or under the Credit Agreement or other related documents. Any document
executed by such agent on the Designee's behalf in connection with the Credit
Agreement or other related documents shall be binding on the Designee and its
successors and assigns. The Company, the Agents and each of the Banks may rely
on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designating
Lender, its Designee and the Company, it will be delivered to the Administrative
Agent for acceptance and recording by the Agent. The effective date for this
Designation Agreement (the "Effective Date") shall be the date of acceptance
hereof by the Administrative Agent, unless otherwise specified on the signature
page thereto.
6. The Company and each of the Designating Lender and each Agent hereby (i)
acknowledges that the Designee is relying on the non-petition provisions of
Section 10.12 of the Credit Agreement as agreed to by all signatories thereto
and (ii) reaffirms that it will not institute against the Designee or join any
other Person in instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any federal or state
bankruptcy or similar law for one year and one day after the payment in full of
the latest maturing commercial paper note issued by the Designee.
7. The Designating Lender unconditionally agrees to pay or reimburse the
Designee and save the Designee harmless against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Credit Agreement against the Designee, in its
capacity as such, in any way relating to or arising out of this Agreement or the
Credit Agreement or any action taken or omitted by the Designee hereunder or
thereunder, provided that the Designating Lender shall not be liable to the
Designee for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements if the
same results from the Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Administrative Agent, as of the
Effective Date, the Designee shall be a party to the Credit Agreement with a
right to make Committed Loans and/or Bid Loans as a Designated Lender pursuant
to Sections 1.2(e) and 1.8(e), respectively, of the Credit Agreement and the
rights and obligations of Designated Lender related thereto; provided, however,
that the Designee shall not be required to make payments with respect to such
obligations except to the extent of excess cash flow of the Designee which is
not otherwise required to repay obligations of the Designated Lender which are
then due and payable. Notwithstanding the foregoing, the Designating Lender (i)
shall be and remain obligated to the Company, the Agents and the Banks for each
and every of the obligations of the Designated Lender and the Designating Lender
with respect to the Credit Agreement and (ii) shall indemnify and hold the
Company, each of the Agents and the other Banks harmless from and against any
and all liabilities, losses, costs or expenses of whatever nature suffered or
incurred by any of them, resulting directly or indirectly from its designation
of a Designated Lender hereunder or the fact that its Designated Lender funded
Loans hereunder.
9. This Designation Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
10. This Designation Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Designation Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Designation
Agreement.
-2-
<PAGE> 82
IN WITNESS WHEREOF, the Designating Lender and the Designee intending
to be legally bound, have caused this Designation Agreement to be executed by
their officer thereunto duly authorized as of the date first above written.
[Name of Designating Lender],
as Designating Lender
By:
-----------------------------------------
Name:
Title:
[Name of Designee],
as Designee
By:
-----------------------------------------
Name:
Title:
Lending Office and address for notices:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
Telephone:
----------------------------------
Fax Number:
---------------------------------
Agreed to and accepted by:
ALUMAX INC.
By:
---------------------------------
Name:
Title:
Agreed to and accepted as of this ___ day
of________, 19____by:
CANADIAN IMPERIAL BANK OF COMMERCE
as Administrative Agent
-3-
<PAGE> 83
By:
---------------------------------
Name:
Title:
Effective Date (if other than the date of
acceptance by the Administrative Agent):____________
-4-
<PAGE> 84
EXHIBIT J
CLOSING CERTIFICATE
To the Financial Institutions Party
to the Amended and Restated
Credit Agreement Referred
to Below,
Gentlemen:
We refer to the Amended and Restated Credit Agreement dated as of
October 9, 1997 among the undersigned and the financial institutions signatory
thereto (the "Restated Credit Agreement"). Capitalized terms used below without
definition have the meanings ascribed to them in the Restated Credit Agreement.
The Company executes and delivers this certificate to you in connection with and
as one of the inducements for the Restated Credit Agreement becoming effective.
The Company hereby certifies that (i) each of the representations and
warranties of the Company set forth in Section 4 of the Restated Credit
Agreement is true and correct as of the date hereof all as though made as of
such date except that all references to the "date hereof" in Section 4 shall be
deemed to be references to the date of this Certificate and (ii) no Default or
Event of Default has occurred and is continuing.
Dated as of the _____ day of October, 1997
ALUMAX INC.
By
--------------------------------
Its Treasurer
<PAGE> 85
SCHEDULE I
INDEBTEDNESS IN EXCESS OF $5,000,000
OF COMPANY AND RESTRICTED SUBSIDIARIES
OUTSTANDING AT OCTOBER 6, 1997
I. INDEBTEDNESS
1. ALUMAX MILL PRODUCTS, INC. TEXARKANA FACILITY LEVERAGED LEASE FINANCING
Lease Agreement dated as of November 25, 1986, between Connecticut
National Bank, as Owner Trustee for the benefit of U.S. West Capital
Corporation under an Owner Trust Agreement dated as of November 25,
1986, and Alumax Mill Products, Inc.
Guaranty of Alumax Inc. dated as of July 30, 1993, Re: Obligations of
Alumax Mill Products, Inc. Amended and Restated Reimbursement Agreement
dated as of July 5, 1995, between Alumax Inc. and Union Bank of
Switzerland, New York Branch.
2. ALUMAX INC. REVOLVING CREDIT AGREEMENT
U.S. $500,000,000 Revolving Credit Agreement dated as of May 19, 1995,
and as amended by the First Amendment to Credit Agreement, dated as of
May 30, 1997, among Alumax Inc., The Banks Signatory Thereto, Royal
Bank of Canada, as Agent, Arranger, and Letter of Credit Issuer, and
Canadian Imperial Bank of Commerce, as Administrative Agent
Current Percent: N/A
Current Balance: -0-
3. $9,880,000 FREDERICK COUNTY, MARYLAND, ECONOMIC DEVELOPMENT REVENUE
REFUNDING BONDS, SERIES 1992 (ALUMAX OF MARYLAND, INC. PROJECT)
Loan Agreement dated January 1, 1992, by and between Alumax of
Maryland, Inc. and County Commissioners of Frederick County.
Current Percent: 7.25%
Current Balance: $9,880,000
1
<PAGE> 86
4. CITY OF YANKTON, SOUTH DAKOTA, $9,000,000 PRINCIPAL AMOUNT OF
INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS, SENES A (ALUMAX
PROJECT)
Loan Agreement dated May 21, 1997, by and between City of Yankton,
South Dakota and Alumax Extrusions, Inc., Alumax Project Series 1997.
Guaranty Agreement dated May 21, 1997, executed by Alumax Inc. in favor
of The First National Bank of Chicago, as Trustee.
Current Percent: 3.75%
Current Balance: $9,000,000
5. PLANNED INDUSTRIAL EXPANSION AUTHORITY OF THE CITY OF ST LOUIS
$7,500,000 INDUSTRIAL DEVELOPMENT REFUNDING REVENUE BONDS, SERIES 1992
(ALUMAX FOILS, INC. PROJECT)
Amended and Restated Lease Agreement between Planned Industrial
Expansion Authority of the City of St. Louis and Alumax 6100 South
Broadway Redevelopment Corporation dated as of June 1, 1992.
Current Percent: 3.85%
Current Balance: $6,835,000
6. DEVELOPMENT AUTHORITY OF GWINNETT COUNTY $5,250,000 INDUSTRIAL
DEVELOPMENT REVENUE BONDS, SERIES 1984 (KAWNEER COMPANY, INC. PROJECT)
Loan Agreement dated as of June 1, 1984, by and between the Development
Authority of Gwinnett County, Georgia, and Kawneer Company, Inc.
Guaranty Agreement dated as of June 1, 1984, executed by Alumax Inc. in
favor of SunTrust Bank, as Trustee.
Guaranty Agreement dated as of June 1, 1984, executed by Alumax Inc. in
favor of Bankers Trust Company.
Current Percent: 9.5%
Current Balance: $5,250,000
2
<PAGE> 87
7. $27,450,000 BERKELEY COUNTY, SOUTH CAROLINA POLLUTION CONTROL REFUNDING
REVENUE BONDS (ALUMAX PROJECT) SERIES 1996
Loan Agreement dated September 1, 1996, by and between Berkeley County,
South Carolina and Alumax of South Carolina, Inc., relating to
Pollution Control Refunding Revenue Bonds Series 1996.
Guaranty Agreement dated September 1, 1996, executed by Alumax Inc. in
favor of The Bank of New York, as Trustee
Current Percent: 3.75%
Current Balance: $27,450,000
8. LETTERS OF CREDIT
<TABLE>
<CAPTION>
Bank Maturity Date Amount
---- ------------- ------
<S> <C> <C>
Royal Bank of Canada 02/27/98 $24,457,000
Commerzbank 03/01/98 $10,000,000
Fuji Bank 04/30/98 $14,569,000
Credit Lyonnais 12/30/97 $44,767,049
PNC Bank 09/15/98 $ 6,969,777
Royal Bank of Canada 09/18/98 $27,901,233
Union Bank of Switzerland 12/31/97 $39,200,000
Bank of America 05/20/98 $ 9,147,946
</TABLE>
9. GUARANTIES
Guaranty dated August 20, 1996, on behalf of Alumax Materials
Management, Inc. in favor of J. Aron & Co. in an amount not to exceed
$6,000.000.
Guaranty dated July 15, 1996, on behalf of Alumax Materials Management,
Inc. in favor of AIG Trading Corp. in an amount not to exceed
$6,000.000.
Guaranty dated October 30, 1996, on behalf of Alumax Materials
Management, Inc. in favor of Morgan Guaranty Trust Co. in an amount not
to exceed $6,000,000.
Guaranty dated June 5, 1996, on behalf of Alumax Materials Management,
Inc. in favor of Morgan Stanley & Co. International Limited in an
amount not to exceed $6,000,000.
Guaranty dated April 26, 1993, on behalf of Intalco Aluminum
Corporation in favor of Washington Department of Ecology in the amount
of $12,391,500.
3
<PAGE> 88
Guaranty May 23, 1997, on behalf of Alumax Materials Management, Inc.
in favor of Prudential-Bache (International) Limited in an amount not
to exceed $6,000,000.
Guaranty dated September 4, 1997, on behalf of Alumax of South
Carolina, Inc. in favor of South Carolina Public Service Authority
securing payment of power charges at the Mt. Holly facility.
Guaranty dated October 1, 1995, on behalf of Intalco Aluminum
Corporation in favor of British Columbia Power Exchange Corporation
securing payment of power charges at the Intalco facility.
Guaranty dated February 1, 1990, on behalf of Aluminerie Lauralco,
Inc., in favor of Hydro Quebec, securing payment of power charges at
the Deschambault facility.
II. MATERIAL LIENS
ALUMAX MILL PRODUCTS, INC. TEXARKANA FACILITY LEVERAGE LEASE FINANCING
A Deed of Trust (With Security Agreement) dated as of November 25, 1986, which
was given as part of the Agreement referenced in Schedule 1, Indebtedness, Item
1, by Alumax Mill Products, Inc. in favor of Gilman N. Gauvin, as Trustee for
the benefit of The Connecticut National Bank, was executed in connection with
the conveyance of a security interest in the land at the Texarkana facility.
4
<PAGE> 89
SCHEDULE II
SUBSIDIARIES
THE COMPANY'S SUBSIDIARIES ARE AS FOLLOWS:
RESTRICTED SUBSIDIARIES:
<TABLE>
<CAPTION>
Name of Jurisdiction of Percentage of Voting
- ------- --------------- --------------------
Subsidiary Organization Stock or Other Equity
- ---------- ------------ ---------------------
Interest Owned Directly
-----------------------
By The Company
--------------
<S> <C> <C>
Alumax Inc Nevada 100%
Alumax Aluminum Corporation Delaware 100%
Alumax Astechnology, Inc. Delaware 100%
Alumax Becancour, Inc. Delaware 100%
Alumax Employee Services, Inc. Delaware 100%
Alumax Engineered Metal Processes, Inc. Delaware 100%
Alumax Extrusions, Inc. Pennsylvania 100%
Alumax Extrusions, Inc. New York 100%
Alumax Foil Industrial Redevelopment Corp. Missouri 100%
Alumax Foils, Inc. Delaware 100%
Alumax International Company Nevada 100%
Alumax Japan, Inc. Delaware 100%
Alumax of Maryland, Inc. Delaware 100%
Alumax Materials Management, Inc. Delaware 100%
Alumax Mill Products, Inc. Delaware 100%
Alumax Primary Aluminum Corporation Delaware 100%
Alumax Quebec, Inc. Wyoming 100%
Alumax Remelt Corporation Delaware 100%
Alumax Retiree Services, Inc. Delaware 100%
Alumax 6100 South Broadway Redevelopment
Corporation Missouri 100%
Alumax of South Carolina, Inc. Delaware 100%
Alumax Technical Center, Inc. Delaware 100%
Alumax Technical Services, Inc. Delaware 100%
Alumax Technology Corporation Delaware 100%
Alumax Warehouse Corporation Delaware 100%
Alumax of Washington, Inc. Delaware 100%
Alumet Corporation Delaware 100%
Eastalco Aluminum Company Delaware 100%
Hil1yard Aluminum Recovery Corporation Delaware 100%
Intalco Aluminum Corporation Delaware 100%
Kawneer Company, Inc. Delaware 100%
Kawneer Europe, Inc. Delaware 100%
Kawneer France, Inc Delaware 100%
Kawneer Germany, Inc. Delaware 100%
Kawneer Polska Sp. z o.o. Poland 100%
Mt. Holly Plantation, Inc. Delaware 100%
Murphy Properties, Inc. Delaware 100%
Alumax Asia Limited Hong Kong 100%
Alumax Asia Pacific Pty. Limited Australia 100%
Alumax de Mexico, S.A. de C.V. Mexico 100%
</TABLE>
<PAGE> 90
<TABLE>
<CAPTION>
Name of Jurisdiction of Percentage of Voting
- ------- --------------- --------------------
Subsidiary Organization Stock or Other Equity
- ---------- ------------ ---------------------
Interest Owned Directly
-----------------------
By The Company
--------------
<S> <C> <C>
Alumax Extrusions Australia Pty. Limited Australia 100%
Alumax Extrusions B.V. The Netherlands 100%
Alumax Extrusions Limited United Kingdom 100%
Alumax Holdings B.V. The Netherlands 100%
Alumax Holdings de Mexico, S.A. de C.V. Mexico 100%
Alumax Extrusions Mexico, S.A. de C.V. Mexico 100%
Comercializadora Alumax Extrusions
Mexico, S.A. de C.V. Mexico 100%
Alumax Holdings S.A. France 100%
Alumax Polska Sp. z o.o. Poland 100%
Alumax Recycling B.V. The Netherlands 100%
Alumax S.A. Spain 100%
Alumax U.K. Limited United Kingdom 100%
Amax Holdings Australia Limited Australia 100%
Amax Resources Australia Limited Australia 100%
Asesoria Mexicana Empresarial, S.A. de C.V. Mexico 100%
Intalco Aluminum Company, Ltd. Alberta, Canada 100%
Kawneer Deutschland G.m.b.H. Germany 100%
Kawneer Company Canada Limited Ontario, Canada 100%
Kawneer Europe B.V. The Netherlands 100%
Kawneer France S.A. France 100%
Kawneer Installations Limited Ontario, Canada 100%
Kawneer Maroc S.A. Morocco 100%
Kawneer U.K. Limited United Kingdom 100%
</TABLE>
SUBSIDIARIES (OTHER THAN RESTRICTED SUBSIDIARIES):
<TABLE>
<CAPTION>
Name of Jurisdiction of Percentage of Voting
- ------- --------------- --------------------
Subsidiary Organization Stock or Other Equity
- ---------- ------------ ---------------------
Interest Owned Directly
-----------------------
By The Company
--------------
<S> <C> <C>
Alamo Resources Corporation Delaware 100%
Alumax PD Holdings Pte. Ltd. Singapore 50%
Aluminerie Lauralco, Inc. Delaware 100%
Amax Asia, Inc. Delaware 100%
Canalco, Inc. Delaware 100%
Honduras-Rosario Mining Company Delaware 100%
Lauralco Quebec, Inc. Delaware 100%
Lauralco Superieur, Inc. Delaware 100%
Lauralco Trois-Rivieres, Inc. Delaware 100%
Rosario Mining of Nicaragua, Inc. Delaware 100%
Rosario Properties, Inc. Delaware 100%
Rosario Resources Corporation New York 100%
The Durango Corporation Delaware 100%
The Fresnillo Company New York 100%
Yunnan Xinmeilu Aluminum Foil Co., Ltd. China 56%
</TABLE>
<PAGE> 91
SCHEDULE III
SUBSEQUENT EVENT IN COMPANY'S PATENT INFRINGEMENT
ACTION AGAINST HOT METAL MOLDING, INC. ET AL.
On October 3 the defendants Hot Metal Molding, Inc.; Hot Metal
Technologies, Inc.; Buhler, Inc.; and Buhler AG and the intervenor defendant,
Ormet Primary Aluminum Corporation, filed counterclaims against the Company
alleging violations of Sections 1 & 2 of the Sherman Act and Section 4 of the
Clayton Act for which they seek injunctive relief and treble damages in an
unstated amount. The majority of these claims derive from allegations previously
made by these parties that the '042 Patent is invalid on one or more grounds and
that the defendants do not infringe the patent. The Hot Metal defendants have
counterclaimed on the additional grounds of conspiracy to monopolize and on
tying. The Company is reviewing the counterclaims in detail, but based on a
preliminary analysis it believes it has meritorious defenses to each of the
counterclaims.
<PAGE> 1
EXHIBIT 11.01
ALUMAX INC.
CALCULATION OF EARNINGS PER COMMON SHARE
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ --------------------
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Primary earnings (loss) per common share
1. Net earnings (loss) ................................ $(76.0) $ 52.4 $(13.5) $230.9
2. Deduct - Series A Convertible
Preferred dividends........................... -- (2.3) -- (7.0)
------ ------ ------ ------
3. Earnings (loss) applicable to common shares ........ $(76.0) $ 50.1 $(13.5) $223.9
====== ====== ====== ======
4. Average primary shares outstanding ................. 55.1 45.6 55.0 45.6
====== ====== ====== ======
5. Primary earnings (loss) per common share
(line 3 divided by line 4).................... $(1.38) $ 1.10 $(0.25) $ 4.91
====== ====== ====== ======
Fully diluted earnings (loss) per common share
6. Earnings (loss) applicable to common shares......... $(76.0) $ 50.1 $(13.5) $223.9
7. Add - Series A Convertible Preferred dividends -- 2.3 -- 7.0
------ ------ ------ ------
8. Earnings (loss) applicable to common shares......... $(76.0) $ 52.4 $(13.5) $230.9
====== ====== ====== ======
9. Average fully diluted shares outstanding ........... 55.1 55.2 55.0 55.2
====== ====== ====== ======
10. Fully diluted earnings (loss) per common share
(line 8 divided by line 9).................... $(1.38) $ 0.95 $(0.25) $ 4.18
====== ====== ====== ======
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FORM
10-Q OF ALUMAX INC FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 60
<SECURITIES> 0
<RECEIVABLES> 475
<ALLOWANCES> 14
<INVENTORY> 555
<CURRENT-ASSETS> 1,162
<PP&E> 3,136
<DEPRECIATION> 1,116
<TOTAL-ASSETS> 3,447
<CURRENT-LIABILITIES> 392
<BONDS> 627
0
0
<COMMON> 1
<OTHER-SE> 1,630
<TOTAL-LIABILITY-AND-EQUITY> 3,447
<SALES> 2,150
<TOTAL-REVENUES> 2,150
<CGS> 1,650
<TOTAL-COSTS> 1,954
<OTHER-EXPENSES> (4)
<LOSS-PROVISION> 1
<INTEREST-EXPENSE> 41
<INCOME-PRETAX> 159
<INCOME-TAX> 172
<INCOME-CONTINUING> (14)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (14)
<EPS-PRIMARY> (0.25)
<EPS-DILUTED> (0.25)
</TABLE>
