EXHIBIT 10.1(i)
AMENDMENT NO. 2
TO
CREDIT AGREEMENT
AMENDMENT NO. 2 (this "Amendment"), dated as of November
16, 1995, to the Credit Agreement, dated as of September 20,
1993, by and among Ogden Corporation (the "Company"), the
signatory Lenders thereto and The Bank of New York, as Agent
(the "Agent"), as amended by Consent and Amendment No. 1,
dated as of September 12, 1994 (the "Agreement").
RECITALS
I. Capitalized terms used herein which are defined in
the Agreement shall have the meanings therein defined.
II. The Company has requested that the Agreement be
amended to extend the Termination Date by one year.
III. In addition, the Company has requested that the
Aggregate Commitments be increased to $200,000,000, that the
Commitment of Swiss Bank Corporation be increased by
$5,000,000, that Bank of America Illinois ("B of A") be added
as a Lender under the Agreement with a Commitment of
$20,000,000 and that the Agreement be amended in certain other
respects as set forth herein.
IV. On the date hereof and on the Amendment Effective
Date (as defined in paragraph 5) no Competitive Bid Loans are
or will be outstanding, no Letter of Credit has been or will
have been issued and the only Loans outstanding under the
Agreement are and will be R/C Loans (the "Existing Loans").
The Existing Loans will be outstanding as Eurodollar Loans
having a one-month Interest Period expiring on December 6,
1995.
V. In order to avoid the need for assigning portions of
the Existing Loans to conform to the revised Commitments and
Commitment Percentages arising from this Amendment, on the
Amendment Effective Date, the Company will deliver to the
Agent a Borrowing Request requesting R/C Loans from the
Lenders, including B of A, in an aggregate amount at least
equal to the aggregate amount due on the Existing Loans on the
requested Borrowing Date, which Loans will be made based on
the revised Commitments and Commitment Percentages set forth
in Attachment A hereto, and the proceeds of such Loans will
be used, in whole or in part, to retire the Existing Loans.
In consideration of the Recitals, the terms and
conditions hereinafter set forth, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Paragraph 1.1 of the Agreement is amended to restate
the following definition in its entirety:
"Termination Date": October 29, 1998, or any date
subsequent thereto resulting from an extension of the
Termination Date pursuant to paragraph 2.18.
2. Paragraph 1.1 of the Agreement is further amended to
change the amount contained in clause (viii) of the definition
of "Permitted Subsidiary Indebtedness" from "$25,000,000" to
"$50,000,000".
3. Exhibit A to the Agreement is restated in its
entirety to read as set forth in Attachment A hereto.
4. Schedule 1.1 to the Agreement is restated in its
entirety to read as set forth in Attachment B hereto.
5. This Amendment shall not become effective until the
date (the "Amendment Effective Date ") on which each of the
following conditions precedent has been fulfilled, provided
that if such conditions are fulfilled prior to December 6,
1995, the Amendment Effective Date shall be December 6, 1995:
a. The Agent shall have received this Amendment
executed by a duly authorized officer or officers of the
Company, the Agent and the Lenders.
b. The Agent shall have received notes, dated the
Amendment Effective Date, as follows: (i) on behalf of Swiss
Bank, a new Note (the "Replacement Note") in the principal
amount of its increased Commitment in replacement of its
existing Note (which existing Note shall be marked
"SUPERCEDED" and returned to the Company) and (ii) on behalf
of B of A, a new Note in the principal amount of its
Commitment (the "B of A Note", and with the Replacement Note,
the "New Notes") each in the form of Exhibit E to the
Agreement, with appropriate insertions therein, executed by a
duly authorized officer or officers of the Company.
c. The Agent shall have timely received an R/C
Borrowing Request from the Company requesting R/C Loans in an
aggregate amount at least equal to the aggregate amount due on
the Existing Loans on the requested Borrowing Date, upon the
making of which the Company hereby directs the Agent to remit
all or such part of the proceeds thereof as shall be necessary
to repay the full amount due on the Existing Loans on such
Borrowing Date to the Lenders thereof for application in
payment of such Loans and to credit the remainder of such
proceeds, if any, as provided in the Agreement or as otherwise
directed by the Company.
d. The Agent shall have received a certificate, dated
the date hereof, of the Secretary or an Assistant Secretary of
the Company (i) attaching a true and complete copy of the
resolutions of its Board of Directors and of all documents
evidencing other necessary corporate action (in form and
substance satisfactory to the Agent and to Special Counsel)
taken by it to authorize the execution and delivery of this
Amendment No. 2, the New Notes and the transactions
contemplated hereby, (ii) attaching a true and complete copy
of its Certificate of Incorporation and By-Laws, (iii) setting
forth the incumbency of its officer or officers who may sign
this Amendment and the New Notes, including therein a
signature specimen of such officer or officers and (iv)
attaching a certificate of good standing of the Secretary of
State of the State of Delaware, together with such other
documents as the Agent or Special Counsel shall reasonably
require.
e. The Agent shall have received an opinion of general
counsel of the Company, dated the date hereof, substantially
in the form of Attachment C hereto.
f. All conditions precedent set forth in paragraph 6 of
the Agreement shall have been satisfied.
6. By its execution hereof, B of A agrees that,
simultaneously upon the occurrence of the Amendment Effective
Date, it shall become a Lender for all purposes under the
Agreement and shall be deemed to have appointed the Agent to
act on its behalf under, and on the terms set forth in,
paragraph 10 of the Agreement.
7. The Company hereby (a) reaffirms and admits the
validity and enforceability of all the Loan Documents and its
obligations thereunder, (b) agrees and admits that it has no
valid defenses to or offsets against any of its obligations to
the Agent or any Lender under the Loan Documents, (c) agrees
to pay the reasonable fees and disbursements of counsel to the
Agent incurred in connection with the preparation, negotiation
and closing of this Amendment, and (d) represents and
warrants that, after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing.
8. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of
which shall constitute one agreement. It shall not be neces-
sary in making proof of this Amendment to produce or account
for more than one counterpart signed by the party against
which enforcement is sought.
9. In all other respects, the Agreement and the other
Loan Documents shall remain in full force and effect.
10. THIS AMENDMENT IS BEING DELIVERED IN AND IS INTENDED
TO BE PERFORMED IN THE STATE OF NEW YORK AND SHALL BE
CONSTRUED AND ENFORCEABLE AND BE GOVERNED BY, THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above
written.
OGDEN CORPORATION
By: /s/Philip G. Husby
Title: Senior V.P. & CFO
THE BANK OF NEW YORK,
Individually and as Agent
By: /s/William A. Klein
Title: V.P.
BANK OF AMERICA ILLINOIS
By: illegible signature
Title: Authorized Officer
DEUTSCHE BANK AG
New York and/or Cayman Islands
Branches
By: /s/Robert M. Wood
Title: Vice President
By: /s/James Fox
Title: Assistant Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/James S. Finch
Title: Vice President
NATIONSBANK, N.A.
By: /s/Michael R. Heredia
Title: Vice President
NATIONAL WESTMINSTER BANK, PLC
New York Branch
By: /s/Maria Amaral-LeBlanc
Title: Vice President
NATIONAL WESTMINSTER BANK, PLC
Nassau Branch
By: /s/Maria Amaral-LeBlanc
Title: Vice President
SWISS BANK CORPORATION
New York Branch
By: /s/Robert O. Gurman
Title: Director, Merchant Banking
By: /s/David C. Hemingway
Title: Director, Merchant Banking
UNION BANK OF SWITZERLAND,
New York Branch
By: /s/James P. Kelleher
Title: Assistant Vice President
By: /s/Peter B. Yearley
Title: Vice President
CHEMICAL BANK
By: /s/Robert K. Gaynor
Title: Vice President
THE MITSUBISHI BANK, LIMITED,
New York Branch
By: /s/Paula Mueller
Title: Vice President
ATTACHMENT A
EXHIBIT A
COMMITMENTS
COMMITMENT
BANK COMMITMENT PERCENTAGE
The Bank of New York $ 30,000,000 15.00%
Bank of America Illinois 20,000,000 10.00
Deutsche Bank AG 20,000,000 10.00
New York and/or Cayman
Islands Branches
Morgan Guaranty Trust
Company of New York 20,000,000 10.00
NationsBank, N.A. 20,000,000 10.00
National Westminster 20,000,000 10.00
Bank, PLC
Swiss Bank Corporation 20,000,000 10.00
Union Bank of Switzerland 20,000,000 10.00
New York Branch
Chemical Bank 15,000,000 7.50
The Mitsubishi Bank, 15,000,000 7.50
Limited, New York Branch
___
Totals $200,000,000 100%
ATTACHMENT B
SCHEDULE 1.1
LIST OF LENDING OFFICES
DOMESTIC LENDING OFFICES EURODOLLAR LENDING OFFICES
(1) The Bank of New York The Bank of New York
New York Corporate Division New York Corporate Division
8th Floor 8th Floor
One Wall Street One Wall Street
New York, New York 10286 New York, New York 10286
Attention: William G.C. Dakin, Attention: William G.C. Dakin,
Assistant Vice President Assistant Vice President
Telephone: (212) 635-1473 Telephone: (212) 635-1473
Telecopy: (212) 635-1483 Telecopy: (212) 635-1483
(2) Bank of America Bank of America
200 West Jackson Blvd. 200 West Jackson Blvd.
Chicago, Illinois 60697 Chicago, Illinois 60697
Attention: David Noda Attention: David Noda
Telephone: (212) 503-7948 Telephone: (212) 503-7948
Telecopy: (212) 503-7771 Telecopy: (212) 503-7771
(3) Deutsche Bank AG Deutsche Bank AG
New York Branch Cayman Islands Branch
24th Floor 24th Floor
31 West 52nd Street 31 West 52nd Street
New York, New York 10019 New York, New York 10019
Attention: Robert Wood Attention: Robert Wood
Telephone: (212) 469-7839 Telephone: (212) 469-7839
Telecopy: (212) 469-8212 Telecopy: (212) 469-8212
(4) Morgan Guaranty Trust Morgan Guaranty Trust
Company of New York Company of New York
60 Wall Street Nassau, Bahamas Office
New York, New York 10260-0060 c/o J. P. Morgan Services Inc.-
Attention: James Finch 3/OP52
Vice President 500 Stanton Christiana Road
Telephone: (212) 648-6985 Newark, Delaware 19713
Telecopy: (212) 648-5016 Telephone: (212) 648-6957
Telecopy: (212) 648-5014
(5) NationsBank, NA NationsBank, NA
6610 Rockledge Dr. 6610 Rockledge Dr.
Corporate Bank Corporate Bank
6th Floor 6th Floor
Bethesda, MD 20817 Bethesda, MD 20817
Attention: Michael Heredia Attention: Michael Heredia
Telephone: (301) 571-0724 Telephone: (301) 571-0724
Telecopy: (301)-571-0719 Telecopy: (301)-571-0719
(6) National Westminster Bank PLC National Westminster Bank PLC
New York Marketing Office New York Marketing Office
175 Water Street - 19th Floor 175 Water Street - 19th Floor
New York, New York 10038 New York, New York 10038
Attention: David Apps, Attention: David Apps,
Vice President Vice President
Telephone: (212) 602-4221 Telephone: (212) 602-4221
Telecopy: (212) 602-4500 Telecopy: (212) 602-4500
(7) Swiss Bank Corporation Swiss Bank Corporation
New York Branch Cayman Islands Branch
222 Broadway c/o Swiss Bank Corporation
222-04-E New York Branch
New York, New York 10038 222 Broadway
Attention: Robert O. Gurman, 222-04-E
Director New York, New York 10038
Telephone: (212) 574-3127 Attention: Robert O. Gurman,
Telecopy: (212) 574-4131 Director
Telephone: (212) 574-3127
Telecopy: (212) 574-4131
(8) Union Bank of Switzerland Union Bank of Switzerland
New York Branch New York Branch
299 Park Avenue 299 Park Avenue
New York, New York 10171 New York, New York 10171
Attention: Peter B. Yearley Attention: Peter B. Yearley
Vice President Vice President
Telephone: (212) 821-3339 Telephone: (212) 821-3339
Telecopy: (212) 821-3878 Telecopy: (212) 821-3878
(9) Chemical Bank Chemical Bank
270 Park Avenue 270 Park Avenue
New York, New York 10017 New York, New York 10017
Attention: Chris Perkins, Attention: Chris Perkins,
Vice President Vice President
Telephone: (212) 270-4769 Telephone: (212) 270-4769
Telecopy: (212) 270-0330 Telecopy: (212) 270-0330
(10) The Mitsubishi Bank, Limited- The Mitsubishi Bank, Limited-
New York Branch New York Branch
225 Liberty Street 225 Liberty Street
Two World Financial Center Two World Financial Center
New York, New York 10281 New York, New York 10281
Attention: Paula Mueller Attention: Paula Mueller
Telephone: (212) 667-2890 Telephone: (212) 667-2890
Telecopy: (212) 667-3562 Telecopy: (212) 667-3562
ATTACHMENT C
FORM OF OPINION OF COUNSEL
_______ __, 1995
TO THE PARTIES LISTED ON
SCHEDULE A ATTACHED HERETO
I have acted as counsel to Ogden Corporation, a Delaware
corporation (the "Company") in connection with Amendment No. 2,
dated as of November 16, 1995 (the "Amendment"), to the Credit
Agreement, dated as of September 20, 1993, by and among the
Company, the signatory Banks thereto, and The Bank of New York,
as Agent, as amended by Amendment No. 1 thereto, dated as of
September 12, 1994 (the "Agreement"). Capitalized terms used
herein that are defined in the Amendment or the Agreement shall
have the meanings therein defined.
In furnishing this opinion, I have examined and relied
upon originals or copies, certified or otherwise identified to
my satisfaction as being true copies, of such instruments,
documents and certificates of officers of the Company or of
government officials, and have conducted such investigations of
fact and law, as I have deemed necessary or appropriate as the
basis for the opinions hereinafter expressed, including,
without limitation, (i) the Restated Certificate of Incorpora-
tion and By-Laws of the Company, (ii) the Amendment and the
Agreement and (iii) the New Notes. With respect to questions of
fact material to any opinions expressed herein, I have relied
solely upon inquiries made of the appropriate officers of the
Company and its Subsidiaries.
I express no opinion as to any question of law other than
with respect to the laws of the State of New York, the corpo-
rate laws of the State of Delaware, and the laws of the United
States of America. Wherever in this opinion the phrase "to the
best of my knowledge" is used, it shall be construed as being
limited, without independent investigation, to my actual
knowledge and the actual knowledge of those attorneys in my
office who have directly participated in this matter.
Based upon and subject to the foregoing, I am of the
opinion that:
11. The Company and each Material Subsidiary is duly or-
ganized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or formation, has all
requisite corporate power and authority to own its Property and
to carry on its business as now conducted, and is in good
standing and authorized to do business in each jurisdiction in
which there is a reasonable likelihood of a Material Adverse
Effect as a consequence of the failure to be so authorized.
12. The Company has full corporate power and authority to
enter into, execute, deliver and carry out the terms of the
Amendment and the New Notes, and to make the borrowings and to
incur the other obligations contemplated thereby, to execute,
deliver and carry out the terms of the New Notes and to incur
the obligations provided for therein, all of which have been
duly authorized by all proper and necessary corporate action
and are not in violation of its Restated Certificate of
Incorporation and By-Laws.
13. No consent, authorization or approval of, filing
with, notice to, or exemption by, stockholders, any Governmen-
tal Body or any other Person (except for those which have been
obtained, made or given) is required to authorize, or is re-
quired in connection with the execution, delivery and perfor-
mance of the Amendment and the New Notes or is required as a
condition to the validity or enforceability of the Amendment
and the New Notes. No provision of any applicable statute, law
(including, without limitation, any applicable usury or similar
law), rule or regulation of any Governmental Body will prevent
the execution, delivery or performance of, or affect the
validity of, the Amendment and the New Notes.
14. The Amendment constitutes, and the New Notes, when
issued and delivered pursuant thereto for value received, will
constitute, the valid and legally binding obligations of the
Company enforceable in accordance with their respective terms,
except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally or by
general principles of equity, including, without limitation,
principles of materiality, reasonableness and good faith
(regardless of whether considered in a proceeding in equity or
an action at law), and (ii) that the enforceability of any
provision of the Agreement providing for indemnification might
be limited by considerations of public policy.
15. There are no actions, suits, arbitration proceedings
or claims pending or, to the best of my knowledge, threatened
against the Company or any Subsidiary, or maintained by the
Company or any Subsidiary, at law or in equity, before any
Governmental Body as to which there is a reasonable likelihood
of a Material Adverse Effect. There are no proceedings pending
or, to the best of my knowledge, threatened against the Company
or any Subsidiary which call into question the validity or en-
forceability of any of the Loan Documents.
16. To the best of my knowledge, neither the Company nor
any Subsidiary is in default under any mortgage, indenture,
contract or agreement to which it is a party or by which it or
any of its Property is bound, as to which, taken as a whole,
there is a reasonable likelihood of a Material Adverse Effect.
To the best of my knowledge, the execution, delivery or carry-
ing out of the terms of the Loan Documents will not constitute
a default under, conflict with, require any consent under
(other than consents which have been obtained), or result in
the creation or imposition of, or obligation to create, any
Lien upon the Property of the Company or any Subsidiary pur-
suant to the terms of any such mortgage, indenture, contract,
agreement, judgment, decree or order as to which, if not con-
sented to, waived or obtained, there is a reasonable likelihood
of a Material Adverse Effect.
17. To the best of my knowledge, neither the Company nor
any Subsidiary is in default with respect to any judgment, or-
der, writ, injunction, decree or decision of any Governmental
Body as to which there is a reasonable likelihood of a Material
Adverse Effect and the Company and each Subsidiary is complying
in all material respects with all applicable statutes and
regulations, including ERISA, of all Governmental Bodies, a
violation of which is reasonably likely to have a Material
Adverse Effect.
18. Neither the Company nor any Subsidiary (a) is subject
to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act (other than the minimum statutory
requirements that do not violate clause (b) below) or the
Investment Company Act of 1940, or (b) is subject to any
statute or regulation which prohibits or restricts the in-
currence of Indebtedness under the Loan Documents, including,
without limitation, statutes or regulations relative to common
or contract carriers or to the sale of electricity, gas,
steam, water, telephone, telegraph or other public utility
services.
19. To the best of my knowledge, neither the Company nor
any Subsidiary has received written notice or otherwise learned
of any claim, demand, action, event, condition, report or
investigation indicating or concerning any potential or actual
liability as to which individually or in the aggregate there is
a reasonable likelihood of a Material Adverse Effect arising in
connection with any non-compliance with or violation of the
requirements of any Environmental Laws.
Very truly yours,
Lynde H. Coit
Senior Vice President &
General Counsel
SCHEDULE A
The Bank of New York
Bank of America Illinois
Deutsche Bank AG
Morgan Guaranty Trust Company of New York
NationsBank of Virginia, N.A.
National Westminster Bank PLC
Swiss Bank Corporation
Union Bank of Switzerland
Chemical Bank
The Mitsubishi Bank, Limited